Relevance, Social Media & Personal Computers

In an employment dispute, the Defendant sought access to the Plaintiff’s Facebook profile and personal computer. The case had involved several discovery disputes challenging the Plaintiff’s discovery productions. Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, 5-9 (M.D. Tenn. Mar. 20, 2013).

SocialMediaExamplesAmong the discovery requests, the Defendant requested “Facebook and/or other social media data” and “Any computers or digital storage devices used by either Plaintiff during and after her employment with Defendant.” Potts, at *3.

The Plaintiff explained they had produced her day planner, documentation of “write-ups” and “store visits” from her employment and all emails relevant to the case. Potts, at *3-4.

The Plaintiff challenged the request for full access to the Facebook profile, arguing that the Defendants had failed to make a “threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.” Potts, at *4-5, citing Thompson v. Autoliv ASP, Inc., 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928, *4 (D. Nev. June 20, 2012).

The Plaintiff also objected to the request for the computer as unduly burdensome, because she had “produced” the relevant information from the computer. Potts, at *4.

The Court held that that Defendants did not make a showing that the Plaintiff’s public Facebook profile contained information that would reasonably lead to the discovery of admissible evidence. Potts, at *7. The Court based its findings on the Plaintiff’s discovery productions and case law. Id. The Court cited the following in their decision:

[M]aterial posted on a ‘private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Potts, at *6-7, citing Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).

However, the personal computer was another story.

HardDriveDisk

The Court agreed the physical production of the computer could lead to admissible evidence, however the parties were ordered to “agree to a word search of Plaintiff’s computer by an agreed neutral party.” Potts, at *8.

Bow Tie Thoughts

Discovery requests are a mix of art and science. Drafting requests requires an attorney to consider the possible sources of ESI, analyze the case facts and draft the reasonably tailored request for discovery. This is easier said than done.

Attorneys really need to be thoughtful in drafting requests for electronically stored information on social media. Done too broadly, it can be the moral equivalent of demanding an MRI in a breach of contract case. At the end of the day, the requests must be for relevant ESI.

Personal computers are another story. A requesting part simply does not get to forage for evidence through someone’s computer. Courts put safeguards in place to avoid privacy from being invaded, such as neutral examiners and the opportunity for privilege review before production.

A good practice is to image a personal computer after a triggering event to preserve any possible relevant information. Costs for such imaging have come down considerably, ranging between $300 to $500 for service providers. This is a very worthy investment compared to the costs of motion practice or defending spoliation claims. Analysis of the contents, searching and processing will drive the cost up; however, talk with the service provider on how they charge for these services. It might be hourly or a flat rate.

Let’s Ask Dad About the Attorney-Client Privilege

The Defendant, apparently well versed in social-media, requested “[a] complete copy of all communications” between specific individuals and the Plaintiff sent on “Facebook, in a blog, via e-mail, text message, voicemail, letter, facsimile, or anywhere else.”  The Defendant requested the ESI be produced in their “original, unaltered form.” Armstrong v. Shirvell, 2012 U.S. Dist. LEXIS 65697, 5 ( E.D. Mich. May 10, 2012).

The Plaintiff, a college student, objected to producing communications with his father, because his father was an attorney and counseled him on privacy expectations. The Plaintiff believed that his communications with his father to be privileged and protected from disclosure. Armstrong, at *6.

The Defendant countered that the father was a witness to the case who tried to gain access to the Defendant’s Facebook account “by posing under a fake name.” Armstrong, at *13.

The Court held there was an attorney-client relationship between the Plaintiff and his father. As such, the Plaintiff did not need to file a response to the Defendant’s discovery request.  Armstrong, at *14-15.

Bow Tie Law

Just as doctors have family members who call them with health related questions, the same thing happens to lawyers. The issue can become tricky when a question turns into legal advice and your aunt is suddenly a client.

It is very well established that email communications with an attorney seeking legal advice, or the reply giving legal advice, are protected under the attorney-client privileged. It is not a stretch to see a college age son texting his mother the attorney for legal advice. Granted, I am confident no parent wants to see a text seeking legal advice from his or her child at any age.

However, questions seeking legal advice that are public on social media profiles, such as a public wall post from a college student to a parent attorney, arguably were not asked in confidence. When it comes to the attorney-client privilege and modern communications, one must ask, “How was the communication made?” For example, was the text message seeking legal advice sent from a work issued smartphone with no expectation of privacy?

We hold the attorney-client privilege with the upmost reverence for those seeking and providing legal advice. However, those seeking and providing advice must not inadvertently breach the privilege by communicating in public forums where there is no expectation of privacy.

Denying Service of Process by Facebook Message

How do you serve someone you cannot find? We have had service of process by alternative means for decades, but is service by a Facebook message an effective alternative means of service? Fortunato v. Chase Bank USA, N.A., 2012 U.S. Dist. LEXIS 80594 (S.D.N.Y. June 7, 2012).

One Federal Judge in New York Court said no.

In Fortunato v. Chase Bank USA, N.A., Chase bank obtained a default judgment and garnished wages from a woman for allegedly not paying a credit card bill. Fortunato, at *1-2.

The woman brought suit, claiming someone else opened the credit card account. Additionally, the Plaintiff never lived at the address listed on the application. Fortunato, at *2.

Chase impleaded the Plaintiff’s estranged daughter into the case, claiming the daughter opened the account with her mother’s name, but listed one of her own addresses on the account. A total of $1,243.09 was charged to the account, which ultimately was garnished from the Plaintiff. Fortunato, at *2-3.

Chase brought a motion for alternative service of process on the estranged daughter, because their investigator could not locate the daughter’s whereabouts. Fortunato, at *3.

The Defendants acted diligently in trying to serve the estranged daughter, including four service attempts at one address. The process server noted that there were “no obvious signs that the premises were being regularly accessed.” Fortunato, at *4.

The Defendant’s investigator searched DMV records, voter records, NY State Department of Corrections records, publicly available wireless phone provider records, and social media websites. Fortunato, at *4-5.

The investigator learned that the four potential addresses for the daughter had different deficiencies: one did not exist; one was the mother’s address; service could not be completed at one; and the other the daughter did not own. Fortunato, at *5.

The investigator did locate a possible Facebook profile of the daughter, which included an email address and listed a city in New York. Id.

The Defendant proposed four alternative service of process on the estranged daughter:

Email;

Facebook message;

Publication; and

Delivery to the estranged daughter’s mother.

Fortunato, at *3.

The Court did not agree that service by a Facebook message, email to the address listed on the Facebook profile, and delivery of the summons and complaint to the mother were all reasonably calculated to notify the estranged daughter of the litigation. Fortunato, at *6-7.

The Court stated the following:

Service by Facebook is unorthodox to say the least, and this Court is unaware of any other court that has authorized such service. Furthermore, in those cases where service by email has been judicially approved, the movant supplied the Court with some facts indicating that the person to be served would be likely to receive the summons and complaint at the given email address. Here, Chase has not set forth any facts that would give the Court a degree of certainty that the Facebook profile its investigator located is in fact maintained by Nicole or that the email address listed on the Facebook profile is operational and accessed by Nicole. Indeed, the Court’s understanding is that anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Nicole Fortunato the investigator found is in fact the third-party Defendant to be served.

Fortunato, at *6-8.

The Court also did not believe that serving the mother was reasonably calculated to provide notice of the case to the daughter. Fortunato, at *8.

The Court explained that the mother and daughter had been estranged for years. Moreover, the Court noted that the mother and daughter were to be counterparties in the lawsuit, so it was inappropriate to serve the mother. Fortunato, at *8.

The Judge agreed service by publication was appropriate in the given situation. As such, the Court ordered publication in the four cities based on the investigator’s research and the city listed on the Facebook profile. Fortunato, at *9-10.

Bow Tie Thoughts

Service by a social media profile may be appropriate under certain circumstances, but there are challenges in determining the profile is actually maintained by a prospective party. In the current case, the Court wanted something more to show the profile actually belonged to the prospective party.

What would a Court require to show a social media profile belongs to whom a party claims it belongs to? If it is a public profile, perhaps there are status messages and recent photos that might provide those additional facts to satisfy a Court. Alternatively, such information might be enough to give a party enough information to personally serve the prospective party.

Given the number of social media profiles that include location data in their posts, it is a matter of time before we have service of process cases involving social media posts.

The No Fly Zone of Producing An Entire Facebook Profile

The airline Defendant in a slip-and-fall case at an airport brought a motion for Plaintiff to produce her entire Facebook profile, including the private sections. Magistrate Judge R. Steven Whalen denied the motion. Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 ( E.D. Mich. 2012).

The Court quickly recognized that information posted that is accessible only to a select group of “Friends” is generally neither privileged nor protected by privacy rights based in either common or civil law.  Tompkins, at *388. With the above in a holding pattern, the Court stated the following:

Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Tompkins, at *388.

Judge Whalen held that the Plaintiff’s public postings did not show the private posts were relevant.  The Court explained that a public photo of the Plaintiff holding a small dog and another of the Plaintiff standing with two people at a birthday party were not inconsistent with her injury or the medical information already produced. Tompkins, at *388-389. As the Court explained: 

[B]ased on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.

Tompkins, at *389.

The Court also held the request for the entire Facebook account was overly broad, because it could “contain voluminous personal material having nothing to do with this case.”  Tompkins, at *389.

Bow Tie Thoughts

Relevancy has not been “un-friended” because of social media in discovery. Just because a party has a social media profile, does not mean that the entire profile might be relevant to a case.

There are times when the production of an entire social media profile is justified, because it contains relevant information. However, as with cases where the production of a hard drive is warranted, the producing party must review for both relevancy and whether any communications are privileged. Such a situation may include private messages exchanged between a husband and wife. These private social media communications would then be no different than email.

Cross Spoliation Claims for Lost Video & Witness Statements

In Patel v. Havana Bar, 2011 U.S. Dist. LEXIS 139180  (E.D. Pa. Dec. 2, 2011), both parties were accused of spoliation. The underlining facts involved the Plaintiff attending an engagement party at the Defendant’s restaurant/bar and falling off a two-story balcony.

Defendants’ Spoliation

The allegations against the Defendant involved the preservation of security video.  The Defendants had three weeks to preserve the video, but were unable to copy or transfer the video off the security camera system. Patel, at *14-15.

The Defendants argued their video system was unable to copy video to a CD or DVD.  Moreover, they explained they contacted a video system service provider to help transfer the video.  However, despite these efforts, the video was recorded over after three weeks.  Patel, at *15-16.

The Court found the failure to preserve the video was spoliation, finding that because of the accident, a lawsuit was “reasonably likely,” thus triggering the duty to preserve the video evidence.  Patel, at *16.

The Court issued an adverse inference instruction for the loss of the video evidence.  Patel, at *25.  

An adverse inference instruction is ordered under the following circumstances:

(1) The evidence in question was within the party’s control;

(2) There appears to have been actual suppression or withholding of the evidence;

(3) The evidence in question was relevant to the claims or defenses; and

(4) It was reasonably foreseeable that the evidence would be discoverable in litigation.

Patel, at *26, citing Mosaid Techs. Inc., v. Samsung Elecs. Co., Ltd., 348 F. Supp. 2d 332, 336 (D.N.J. 2004).

Case law does not require the destruction to be intentional, stating “negligent destruction of relevant evidence can be sufficient to give rise to the spoliation inference.” Patel, at *26, citing Mosaid Techs. Inc., v. Samsung Elecs. Co., Ltd., 348 F. Supp. 2d 332, 338 (D.N.J. 2004).

The Court held the following against the Defendants:

Here, the spoliation inference is appropriate because the video footage was within Havana’s exclusive control; the video was not preserved before its destruction because Defendants failed to follow through with the steps necessary to ensure preservation; the footage of the bar and the area in which Plaintiff fell on the night of the incident is clearly relevant to Plaintiff’s claims; and Defendants knew or should have known that the footage would later be discoverable given their knowledge of Plaintiff’s injuries and the likelihood of suit. Defendants will of course be permitted to explain to the jury the steps they did take to preserve the footage.

Patel, at *26.

Plaintiffs’ Spoliation

The spoliation claim against the Plaintiff involved his sister-in-law sending two messages on Facebook in 2008 and 2010 for witness statements from party attendees.  The Defendants did not learn about these witness statements until the deposition of one of the party attendees.  Patel, at *16-18.

The Defendants claimed the Plaintiffs “spoon-fed friendly witnesses testimony that would support their case theories, and then lost or destroyed evidence that would not support their current case theory.” Patel, at *17.

The Plaintiffs claimed the witness statements collected by the sister-in-law were protected from disclosure under the work product doctrine.  Patel, at *17.

The Court stated in a footnote about the work product argument:  “We are at a loss to understand how statements provided by non-party individuals could constitute “attorney-client” material.”  Patel, at *21, footnote 4.

The Court held the loss of the 2008 witness statements were “clearly spoliation.”  Patel, at *17.  The Court explained the Plaintiff or his family had the statements in their possession and thus had a duty to preserve them. Patel, at *18.

As the Court explained:

Even if the work product privilege did somehow come into play, this privilege was belatedly raised, and documents were withheld without ever notifying Defense counsel. This type of discovery practice is directly contrary to Fed. R. Civ. P. 26(b)(5), which requires a party who withholds information based on a claim of privilege to expressly raise that privilege and describe the nature of the withheld documents in a privilege log.

Patel, at *18.

The Court also found the failure to disclose the witness statements violated the Plaintiffs’ initial disclosure obligations under Federal Rule of Civil Procedure Rule 26(a).  Patel, at *22.

Pursuant to Federal Rule of Civil Procedure 26(a)(1)(A), parties must disclosure individuals and information that supports their claims or defenses.  Patel, at *19.  This is to make discovery more effective and prohibit gamesmanship of a party not producing relevant information on the grounds the opposing party did not specifically request the information. Patel, at *19-20.

As the Court explained on the failure to produce the witness statements:

Put more directly, this is the type of “basic, substantive evidence” that should have been produced “without resort to the complications, inefficiency, and litigiousness of discovery practice.” [citation omitted]. Plaintiff should have known that the witness statements would eventually be discoverable under Rule 26(b)(3)(A), and that producing the statements piecemeal was not in any way designed to foster the fair and efficient exchange of information.

Patel, at *23.

The Court ordered an adverse inference instruction for the loss of the witness statements.  Patel, at *29.  After finding all four spoliation factors met, the Court stated:

We believe the best way to sort out Plaintiff’s discovery misconduct is to allow the jury to draw its own conclusions as to the evidentiary value of how the evidence was handled.

Patel, at *29-30.

The Court further ordered the re-deposition of five of the Plaintiff witnesses, at the cost of the Plaintiff.  Patel, at *30.

The Court also awarded attorneys’ fees and costs for the time spent to acquire discovery they were rightfully entitled to.  Patel, at *30.  The Court stated the Defendants’ itemization of $20,000 looked reasonable, but would not set a specific award until the Plaintiffs could respond to the itemization.  Patel, at *30-31.

Bow Tie Thoughts

This case is a strong reminder, with adverse inference instructions against both parties, about the importance of preservation.

The preservation of evidence is a challenge for litigants of every type, from private individuals to large companies.  Identifying ESI for preservation can often having many moving parts, frequently resembling a high-speed fan.

It is no secret from case law that electronically stored information can easily be lost.  Preserving relevant data requires having individuals trained in data collection preserve ESI after a triggering event has occurred.  While there are many ways to collect data, such as mirror images, targeted collections or remote methodologies, it is vital to engage a collection expert early to ensure relevant ESI is not lost.

Social media is only expanding where there might be responsive electronically stored information in a lawsuit.  In this case, two Facebook messages seeking witness statements were key exhibits into the spoliation claims.  There are many other examples.

This case is also a reminder that attorneys should add inquiries about social media to their discovery plans.  While social media will not be present in every case, it is an excellent topic for client interviews and Rule 26(f) conferences.

Social Networking in Wrongful Termination Cases

“Tweets” and “status comments” on social networking sites appear in lawsuits of all shapes and sizes. Wrongful termination cases are certainly no exception to this growing trend.

In Smizer v. Cmty. Mennonite Early Learning Ctr., the Plaintiff claimed he was the subject of gender discrimination, because he was terminated for being tardy and having a messy classroom. Smizer v. Cmty. Mennonite Early Learning Ctr., 2011 U.S. Dist. LEXIS 102212, at *1-2 (N.D. Ill. Sept. 7, 2011).

The Defendant claimed the reason for the Plaintiff’s termination was because of “a troubling Facebook posting” the Plaintiff made about the Defendant’s employees. Id.

The Plaintiff sought certain discovery regarding female employees tardiness and lack of classroom cleanliness to show these were “not reasonable bases for firing him while his female counterparts remained employed.” Smizer, at *2.

The Defendant claimed this discovery was irrelevant, because no female employee was terminated for a Facebook status message, thus there were no similarly situated female employees.  Id.

The Court disagreed, allowing discovery of female employee timecards and classroom cleanliness.  Smizer, at *2-3. The Court stated:

Rule 26 of the Federal Rules of Civil Procedure makes clear that at the discovery stage, information requested must be “reasonably calculated to lead to the discovery of admissible evidence.” While CMELC claims now that Smizer’s Facebook posting was the sole cause of his termination, Smizer has provided the Court with ample documentation from within CMELC indicating that CMELC claimed at various other times that there were other reasons for his termination, including his tardiness and lack of cleanliness. By raising these other justifications, CMELC opened itself up to related discovery if for no other reason than that “a shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive.” Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010). Because CMELC’s various justifications for firing Smizer may therefore be admissible at trial, evidence about the validity of those justifications may also be relevant. At least some of Smizer’s requests are therefore reasonably calculated to lead to the discovery of admissible evidence.

Smizer, at *2-3.

In Dollman v. Mast Industries Inc., the Plaintiff sought to introduce at trial a status comment of her former manager that the manager was not getting sufficient sleep because of an unlawful activity.  Dollman v. Mast Indus., 2011 U.S. Dist. LEXIS 99802, 10-12 (S.D.N.Y. Sept. 6, 2011)

The manager denied making the status comment, claiming that her former boyfriend made the comment on her profile after hacking her account. Dollman, at *11.

The Court quickly fired multiple torpedoes to sink admitting the status comment at trial.  First, the Court found the message to have “no possible relevance.” Dollman, at *12. Secondly, the Court found the message could be classified as “banter.”  Third, even if the message was true, admitting it would unfairly prejudice the Defendant, embarrass the manager and “draw the jury’s attention away from the probative facts.”  Id.

Bow Tie Thoughts

In one of the above cases, a party tried to use social media as a shield against further discovery; in the other, a sword to attack a witness’ credibility.

Courts have always been the guardians of the justice system to ensure the truth is discovered in a lawsuit.  This duty has become more complex with litigants living their lives on social networking sites. Courts will continue to evaluate what is reasonably calculated to lead to the discovery of admissible evidence and what is nothing more than a prejudicial distraction from the merits of a case.

Recognizing Reality with Preserving Social Media ESI

In a trademark dispute between restaurants, the Plaintiff brought a sanctions motion, claiming spoliation of the Defendant’s Facebook profiles.  Katiroll Co. v. Kati Roll & Platters, Inc., 2011 U.S. Dist. LEXIS 85212, 1-2 (D.N.J. Aug. 3, 2011).  The Court denied the sanctions motion over the Facebook profiles.

The Plaintiff first argued that the Defendant failed to preserve his Facebook pages in PDF format, because the Defendant took down the pages after the Plaintiff sent a take down notice.  Katiroll Co., at *9.

The Court held sanctioning the Defendant for following a take down request would be unjust, even if the Plaintiff’s take down notice was not legally proper.  Katiroll Co., at *9, fn 1.

The Plaintiff also argued that the Defendant changing his Facebook profile photo with infringing trade dress led to the loss of discoverable evidence.  The Court very reluctantly clicked “Like” on this argument, but did not impose any sanctions.  Katiroll Co., at *9-11.

The parties agreed that when a user changes a Facebook profile photo, the user changes the photo associated with each status message or post they have done in the past.   Katiroll Co., at *9.

The Defendants argued that sanctions were not warranted, because the Facebook profile was a public website, which the Plaintiffs could have preserved themselves.  Katiroll Co., at *10.

The Court noted that case law has held that public websites are still within the control of those who own the websites.  Katiroll Co., at *10.

The Court described the Defendant’s position as “an attempt to “pass the buck” to Plaintiff to print websites that Defendants are obliged to produce.”  Katiroll Co., at *10.

The Court found that the Defendants were in “control” of the Facebook profile, stating:

Given that Defendants have a discovery obligation to produce them and that only Defendants knew when the website would be changed, it is more appropriate for Defendants to have that burden.” 

Katiroll Co., at *10.

However, the Court acknowledged that changing a Facebook profile photo is a “common occurrence” and users often change their profile photos weekly.  Katiroll Co., at *10-11.

The Court stated it was not surprising the Defendant changed his profile photo during the litigation and further that the Defendant did not realize that changing his profile photo would “undermine discoverable evidence.”  Katiroll Co., at *11.

The Court held that the spoliation was unintentional, however, there was some prejudicial loss to the Plaintiff.  Katiroll Co., at *11.

The Court constructed the following solution:

Defendant was to coordinate with the Plaintiff to change his profile photo back to the infringing photo.  This would not be an additional act of infringement.

The Plaintiff would print any of the posts they considered made their case.

The Defendant would change his profile photo to a non-infringing photo immediately after the Plaintiff printed the posts they needed.

Katiroll Co., at *11-12.

Bow Tie Thoughts

The Court did a respectable job recognizing the realities of social media usage, control of public profiles and constructing a remedy for the preservation and production of the ESI that did not sanction the Defendant.

The preservation of electronically stored information on social media websites can cause a headache in determining the right method to preserve it.  Given the number of iPhones and Droids in use, status messages, photo uploads and email can be created almost non-stop.

The simplest method is to simply print the Facebook profile, either as a hard copy or a PDF.  Screen captures are another option.  There are additional specialty software solutions for capturing websites such as HT Track and others designed for social networking sites such as Nextpoint. There are many tools on the market currently and others will continue to be developed in the future.

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JurisdictionBook

An Illinois-based start-up founded a social networking site named “Techbook” for teachers.  As one can imagine, Facebook sued for trademark infringement.  Facebook, Inc. v. Teachbook.com, LLC, 2011 U.S. Dist. LEXIS 48590, 6-7 (N.D. Cal. May 2, 2011).

Facebook sued in the Northern District of California, where they are headquartered.  Teachbook.com, LLC, at *3.

The Defendants filed a motion to dismiss, arguing personal jurisdiction was not proper in California.

A plaintiff must show jurisdiction is proper when a defendant challenges personal jurisdiction in a motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(2). Teachbook.com, LLC, at *3-4.

The test for specific jurisdiction in the Ninth Circuit is defined as follows:

(1) The non-resident defendant must purposefully direct activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protection of its laws;

(2) The claim must be one which arises out of or is related to the defendant’s forum-related activities; and

(3) The exercise of jurisdiction must comport with fair play and substantial justice.

Teachbook.com, LLC, at *5, citing Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).

The Court quickly found Facebook made a prima facie showing that the Defendant intentionally selected a similar trademark.  Moreover, the Defendant knew that the harm would be suffered in the Northern District of California.  Teachbook.com, LLC, at *6.

However, the Court marshaled a substantial amount of judicial understatement with its use of “nonetheless” in finding the Plaintiff failed to meet the “effects” test because they failed to show the Defendants’ conduct was “expressly aimed” at the Northern District of California.  Teachbook.com, LLC, at *6.

Quoting precedent, “a foreign act with foreseeable effects in the forum state always gives rise to specific [personal] jurisdiction.” Id.  As such, the Defendant did not engage in “something more” than having foreseeable effects in California.  Teachbook.com, LLC, at *6-7.

As the Court explained:

Here, Teachbook’s alleged intentional act-adopting an infringing trademark-was expressly aimed at potential users of Teachbook’s website. Teachbook does not register users in California. Thus, even if Teachbook intended to compete with a California company, it intended to compete for users who were not in California. The fact that an essentially passive Internet advertisement may be accessible in the plaintiff’s home state without “something more” is not enough to support personal jurisdiction in a trademark infringement suit brought in the plaintiff’s home state.

Teachbook.com, LLC, at *7.

The Court further explained that none of the Defendant’s actions was purposefully directed at California.  Moreover, the Defendant tried to avoid the California market.  Teachbook.com, LLC, at *10.  Not finding “something more,” the Court found for the Defendant.

Bow Tie Thoughts

Personal jurisdiction has made caselaw for over 150 years.  The age of social media, Tweets or status comments from GPS specific location, will only continue to fuel judicial opinions and law school exams for years to come.

 

Feng Shui False Tweets

The Plaintiff, a professional Chicago interior designer, was the director of marketing, PR and e-commerce for the Defendant, a well-known interior designer. Maremont v. Susan Fredman Design Group, Ltd., 2011 U.S. Dist. LEXIS 26441, at *4 (N.D. Ill. Mar. 15, 2011).

After being injured in an accident, the Defendant impersonated the Plaintiff on Facebook and Twitter.  The Plaintiff sued and the Defendant brought a motion to dismiss.  Maremont, at *1-2.

The Factual Focal Point

The Plaintiff had a popular following on both Facebook and Twitter.  All social media messages had her image on them.  Additionally, the Plaintiff maintained a blog hosted on the Defendant’s blog.  Maremont, at *5.

The Plaintiff was hit by a car and hospitalized with extensive injuries, which included surgeries, physical rehabilitation and recovering in a wheel chair.  Maremont, at *5-7.   While in the hospital, she was told the Defendant were promoting themselves with the Plaintiff’s Facebook and Twitter accounts.  Maremont, at *6.

The Plaintiff told the Defendant to stop “impersonating” her online, because 1) it made it look like the Plaintiff had not been hurt badly and 2) she had returned to work. Maremont, at *6.

The Defendant continued impersonating the Plaintiff on both Twitter and Facebook. Id.

After several months of recovery, the Plaintiff learned the Defendant was still impersonating her on her social media accounts.  Maremont, at *7.   The Plaintiff changed her passwords on her accounts, which prompted the Defendant to text the Plaintiff.  Id. After the Plaintiff confirmed she changed her passwords to the Defendant, the Defendant and her employees stopped visiting or contacting the Plaintiff.  Id.

Accent Colors of the Law: Lanham Act, Right to Publicity & Common Law Right to Privacy

False Endorsement

The Court upheld the Plaintiff’s “false endorsement” claim under the Lanham Act.  Maremont, at *9-10.

A “false endorsement” is “…when a person’s identity is connected with a product or service in such a way that consumers are likely to be misled about that person’s sponsorship or approval of the product or service.” Maremont, at *9, citing, Stayart v. Yahoo! Inc., 651 F.Supp.2d 873, 880-81 (E.D. Wis. 2009).

The Court explained that the Plaintiff alleged sufficient facts to survive the motion to dismiss, because 1) she alleged she had a popular following on Twitter and Facebook related to her commercial work and 2) the Plaintiff was in commercial marketing when the Defendant used her social media accounts.  Maremont, at *10.

As such, the Court found the Plaintiff alleged a commercial injury based on the Defendant’s use of the Plaintiff’s Facebook and Twitter profiles.  Id.

Right to Publicity

The Plaintiff alleged the Defendant violated her rights under the Illinois Right to Publicity Act, because the Defendant did not have her written consent to use her likeness. Maremont, at *11.

The Defendant challenged the Plaintiff’s “right to publicity” claim as being untimely under state law, because the one-year statute of limitations had run from when the Plaintiff first learned of the use of her social media profiles.  Maremont, at *11.

The Court found the Plaintiff’s claim timely, because under the “continuing injury” doctrine, because of the several month period the Defendant used the Plaintiff’s social media profiles.  Maremont, at *13.  The Plaintiff filed her lawsuit within one year of her text message exchange with the Defendant about changing her passwords, which was the end of the alleged infringement.  Id. As such, the Plaintiff’s claims were timely.  Id.

Common Law Right to Privacy Claim

The Defendant was successful in the dismissal of the Plaintiff’s Common Law Right to Privacy Claim, because the Illinois Right to Publicity Act replaced common law causes of action.  Maremont, at *14.

The Plaintiff claimed two additional common law torts: 1) unreasonable intrusion upon the seclusion of another and 2) a claim based on publicity that reasonably places another in a false light before the public. Maremont, at *14.

The Court granted the motion to dismiss on the intrusion into her “digital life,” because the Plaintiff did not develop the argument whether such a claim is actionable.  Maremont, at *14-15.

The Plaintiff’s “false light” claim also failed, because she did not sufficiently allege actual malice or special damages.  Maremont, at *15.

Bow Tie Thoughts

We will see more cases involving the blending of personal lives and professional business development.  These issues present intriguing questions of law and electronic discovery challenges.

Consider an employer requiring their employees to use their personal social media profiles to promote the company.  Does that give an employer the right to highjack personal social media profiles if the employee is hospitalized?  How about if the employee leaves the company?

All of the discovery in this case is digital: Social Media and Text Messages.  Both are high transitory and can present preservation challenges.  Attorneys must consider social media in their electronic discovery planning, from collection and review.  While Outlook based email is very established, “cloud” based social media discovery cannot be ignored.

Tagging Damages for Violating the CAN-SPAM Act on a Social Networking Site

A registered Facebook user allegedly gained unauthorized access to 116,000 Facebook accounts and sent in excess of 7.2 million spam email messages. Facebook, Inc. v. Fisher, 2011 U.S. Dist. LEXIS 9668, at *3 (N.D. Cal. Jan. 26, 2011). 

These spam emails were designed to “phish” for log-in information from Facebook users and continue the spam email message cycle.  Id.

Facebook received over 8,000 complaints and over 4,500 people deactivated their Facebook accounts.  Fischer, at *8.

Un-friending the Defendant was not simply enough for Facebook. 

Facebook sued on the following causes of action:

(1) Violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”), 15 U.S.C. § 7701 et seq.;

(2) Violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq.;

(3) Violation of Cal. Penal Code § 502; and

(4) Violation of Cal. Bus. & Prof. Code § 22948. 

Fischer, at *4.

The Plaintiff obtained a default judgment and proceeded to tag the Defendant with as many damages as possible. 

The maximum penalty under the CAN-SPAM Act allows for an award of $100 for each of the 7.2 million violations, plus aggravated damages.  Total sought:  $2,160,000,000. Fischer, at *6.

The Plaintiff also sought $500,000 under the under Cal. Bus. & Prof. Code § 22948 and requested treble damages for a total award of $1,500,000. Fischer, at *6.

The Court found that a damages award in excess of $2 billion was not proportionate to the violation of the various statutes.  Fischer, at *6.  Instead, the Court awarded statutory damages of $.50 for each CAN-SPAM Act violation for $360,000,000.  The Court also awarded damages of $500,000 pursuant to Cal. Bus. & Prof. Code § 22948.2, making the total damages $360,500,000. Fischer, at *7.  The Court declined to award treble damages.  Id.

Bow Tie Thoughts

There is a phrase from Political Science and History classes on war: Making the rubble bounce. 

Some damage awards are to prove a point, and deterrence, from future violations.  Facebook sought to prove a point to deter spammers from any phishing and other attacks on identity theft by dropping a nuclear bomb on this Defendant.  While Facebook did not vaporize the Defendant, a default damage award of $360,500,000 certainly made the rubble bounce.  It showed both the Plaintiff, and the Court, did not tolerate 116,000 people having their Facebook accounts being compromised.