The Social Network Your Best Friend for Investigating and Defending Claims Erik P. Crep Wicker, Smith, OHara, McCoy & Ford, P.A. Miami, Florida.

The Social NetworkYour Best Friend for Investigating

and Defending Claims

Erik P. CrepWicker, Smith, O’Hara, McCoy & Ford, P.A.

Miami, Florida

What is “Social Media”?Facebook

Twitter

Vine

Instagram

Keek

MySpace

YouTube

Photo Sharing

-- Shutterfly

-- Flickr

Dating Site

-- Match.com

-- Jdate.com

-- Eharmony.com

-- Mysugerdaddy.com

Business Networking

-- LinkedIn

Blogs/Online Journals

Social Media Sites

Social Media in Litigation

Social Media is relevant and significant in many area of litigation:

- Medical Malpractice

- Errors and Omissions Cases

- Employment Litigation

- Construction

- Other Professional Lines (financial lines)

- Other – transportation; family law; bankruptcy; debt collection; personal injury defense

Uses of Social Media in Defending Claims

Social Media Sites Contain a HUGE amount of useful Information:

Photographs (vacation/mobile updates)

Videos

Admissions by Plaintiffs

Comments on Plaintiffs’ activities /life style

Locate other fact witnesses

Relationship status

Impeachment Material

Information on Expert Witnesses

FacebookCreated in 2004 by Harvard

student Mark Zuckerberg and 3 friends – in a dorm room

9 years later, more than 1 billion active users world-wide

As of December 31, 2012, over 680 million users use Facebook mobile products

Facebook

Average Facebook user/Plaintiff

-- has over 130 friends

-- 15 hours & 33 minutes on Facebook per month

-- creates 90 pieces of content per month

• Facebook/Mobile Devices

-- 500 million access Facebook from mobile device

Facebook When searching for information on Plaintiff, your

insured, a witness or an expert:

• Use first names, last names, maiden names, middle names, nick names

• Narrow your search using Plaintiff(s)’ birthdates, cities they lived in, known employers, etc.

• Search other individuals who may live in Plaintiff(s)’ household – spouse, children, siblings, friends, etc.

• Search by email address and phone number (ex. Email address in medical records/history/incident reports)

Social Media Search Tips

Locate Plaintiff’s Accounts

Print off all public pages

Screen shots

Save digital photographs (Mobile Uploads can provide GPS data)

Create screen shots

Catalogue “Friends”

Create tickler system to check for updates

Do Not “Friend” a Judge Florida’s Appellate

Court – 4th DCA- said it violated Florida’s Judicial Ethics Code

“Judges do not have the unfettered social freedoms of a teenager”

Conveys to others the impression that these lawyer “friends” are in a special position to influence the judge

Do Not “Friend” a Plaintiff

• Never send a “friend” request to a Plaintiff

• Never “friend” request a witness or opposing expert

• Never have friends/family/staff do it either

Photographs

Comments to Pictures

Saving Color Photographs

Only allows for 140 characters

Pictures & Videos

Tweeters share commentary on events, what they are doing that very moment; court cases, news stories, politics, how they are feeling, etc.

550 million registered users

Over 340 million tweets daily

Average user tweets 307 times per year

43% of users use phone to tweet

Publicly visible by default

People Tweet Everything!

Caution – Twitter Story Potential Cisco Employee

Response from Cisco Manager

Twitter in Litigation:

Attorneys and consultants use Twitter to develop profiles of jurors, including their daily activities

Such as:

• Juror posting on Twitter might give info about how he may decide a case;

• Whether or not the juror has tweeted about similar court cases;

• How does a juror feel about attorneys trying the case? Paralegal? The Parties?

What Have Jurors Tweeted?

Defendant looks like a murderer. GUILTY. Waiting for opening remarks.

Guilty guilty … I will not be swayed. Practicing for jury duty.

So, Jonathan, what did you do today. Oh, nothing really. I just gave away TWELVE MILLION DOLLARS of some else’s money!

The lead plaintiff in the case. Since the first day of trial has had nothing to do, so he usually falls asleep which causes his head to bob up and down as he fights to stay awake.

+ =

•Social Media should be accessed during voir dire

•Facebook/Twitter/Instagram/Blogs, etc. can provide great insight into the

character of potential jurors

•1/3 of Facebook users do not have their pages set to private

Social Media and Jury Consultants

During the nearly two-month Casey Anthony trial, trial consultants would leave the courtroom at the end of each day and head for their computers. There, a team would monitor blogs, Facebook, Twitter to find out what was annoying people about Anthony – and tailor their defense accordingly.

Discovery Issues and StrategyTiming of online investigation –> the sooner the

betterLocate and go to Plaintiff’s Facebook, Linkedin,

Twitter Print off all public pagesPrint screen [ctrl + alt + print screen]Save all photographsCatalogue names and contact information for

“Friends”

------------Some Plaintiffs’ attorneys instruct clients to delete

photographs/postings harmful to case

-- Therefore, act fast. ASAP. Before Plaintiff retains an attorney.

Is Social Media DiscoverableRomano vs. Steelcase, 907 N.Y.S. 2d 610 (Suffolk Co.,

2010)

• Defense allowed to discovery information/pictures on Facebook – including all deleted or archived information

• No reasonable expectation of privacy for information posted on internet

• “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking”

Zimmerman vs. Weis Markets, 2011 WL 2065410 (Northumberland Co. Com.Pl 2011)

• Step further – required Plaintiff to provide user names & passwords to defense counsel to investigate [not the norm.]

• However – must be relevant and must have factual predicate

Social MediaHolter vs. Wells Fargo, 2011 WL 797144 (D. Minn. May

4, 2011)

• Social networking discoverable

• No login/password and no authorization

• Plaintiff’s attorney review and produce documents and picture

• Just as the Court would not give a party the ability to come into a party’s home and peruse computers to search for possible relevant information, Court did not allow Defendant to review social networking content to determine what it deemed relevant.

Barnes vs. CUS Nashville, 2010 WL 2265668 (M.D. Tenn June 3, 2010)

• Judge ordered that he (the Judge) would create Facebook page and require Plaintiff to “friend” him.

• Judge would then examine Plaintiff’s Facebook – including photographs – to determine what was relevant

Predicate Predicate Predicate!!!

Caraballo vs. City of New York, Index No. 10 103477-09 (NY Sup. Ct. March 4, 2011)

• No predicate = no records/pictures from Facebook or Twitter

• Digital fishing expeditions are no less objectionable than their analog antecedents

Habib vs. 116 Central Park, Index No. 108434-09 (NY Sup. Ct. March 2, 2011)

• No predicate why 80 year old Plaintiff would comment on claim/injury on social networking

Bavids vs. Novartis Pharm., 2:06-00431 (EDNY Feb. 24, 2012)

• Must be factual predicate, like an individual’s public posting, to obtain information on individual’s private page

How to Obtain Social Network Information?? Subpoena to Facebook/Twitter

- Not permitted to subpoena to social networking websites in civil lawsuit under Stored Communications Act, 18 U.S.C. § 2701, et. Seq.

Crispin vs. Christial, 717 F.Supp.2d 965 (C.D. Cal 2010)

Consent/Authorization from Plaintiff

Plaintiff produce all “private” photographs or other information

Obtain Plaintiff’s login and password

What About Spoliation Against Plaintiff?

Gatto vs. United Airlines, 10-cv-1090 (Dist. NJ April 2, 2013)

Plaintiff brought negligence action – against airline

Defendant airline provided authorizations to Plaintiff for Facebook records; eventually Plaintiff agreed

However, Plaintiff subsequently deactivated account – which was deleted 14 days later by Facebook

Defendant argued prejudice in its defense due to the destruction of evidence

Gatto vs. United Airlines continued

Defendant sought sanctions for spoliation of evidence

Court agreed – deactivation constituted spoliation

Facebook relevant for damages

Reasonably foreseeable that Plaintiff’s Facebook would be sought in discovery. Plus, Defendant requested information 5 months before account deactivated

Court Adverse Inference against Plaintiff

Steps to Obtain Information

Sent letter to Plaintiff asap, placing them on notice of intent to obtain social media materials

But … consider timing

Advise that sanctions will be pursued if materials are deleted

Once in litigation, send a request for production and interrogatories

Send authorization to obtain records directly from social media site

If Plaintiff fails to preserve data, seek sanctions

Actual Posts – No Self-Control

Twitter/Facebook Destroy Plaintiff’s Case

Plaintiff fracture arm and scar to forehead in MVA (liability case) – sought over $1 million

Tweet – starting “to love my scar” and “able to carry, with previously broken arm, a purse”

Posted photo of herself with large purse

Verdict for $142k

Actual Post from Case Alleges could not fully

extend her right arm

Alleges that she was limited in her daily activities

Alleges she didn’t like being the center of attention due to right arm injury and self-consciousness

Made unreasonable demand – but – 3 days before trial, this was uncovered

Actual Post from Case

Plaintiff on left

President of small college

Claimed she was depressed – largely due to her inability to shake hands

Really? Really? Really? Actual Plaintiff in a

Tattoo removal/malpractice case

Claims to be depressed and self-conscious about her body …

Posted: “For the first time, I can honestly say my life is perfect.”

Oops …

Social Media ConclusionFertile source of information re: Plaintiffs,

witnesses, experts, jurors and/or potential jurors

Predicate Predicate Predicate

It is unlikely that court decisions requiring disclosure will deter users from posting on these networks – people will still post

Social media will continue to increase popularity

Defense attorneys and claims professionals must use this media as a resource

“What To Do” • Sample Interrogatories (Exhibit “A”)

• Sample Request for Production (Exhibit “B”)

• Sample Authorization/Release to Facebook (Exhibit “C”)

Questions? Comments?

Erik P. Crep, Esquire

Wicker, Smith, O’Hara, McCoy & Ford, P.A.

2800 Ponce de Leon Blvd, Suite 800

Coral Gables (Miami), FL 33134

(305) 448-3939

[email protected]

Electronic Discovery

Electronic DiscoveryNearly 95% of all information is stored electronically

More than 70% electronic information never printed

North American businesses = 3.25 trillion e-mail per year & create more than 90% of their information in digital form

iPhone Storage Capability

- 16 GB - - 5,500 photographs

- 32 GB - - 11,500 photographs

- 64 GB - - 23,500 photographs

• More cell phones in world than toothbrushes

Hard Drive Capacity1 Gigabyte (GB) = 30

bankers boxes

1 Terabyte = 10 trailers of paper

10 Terabytes = Printed collection of the U.S. Library of Congress

Goal of Forensic Discovery

Capture ALL the data from the beginning sector of the hard drive to the last sector

Metadata “Data About Data”

(a)System Data

- like a card catalogue in a library

- computer file itself

- ex. Scanemployer.doc

- tells where file is located on the hard drive

(b)Metadata

- Similar to table of contents/index

- allows you to do keyword search

Forensic InformationEmails/Documents Pictures

Where originated

Altered?

File email was located in

- “dangerous docs”

- “bad tests/results”

• Metadata

- when changes made

- who made changes

- track changes

-drafts of documents

When taken

GPS location of where pic taken

Altered?

Every document has details

- Creator of the file

- Date of creation

- Storage Location

- Persons who had access to it

- Persons who viewed, copied, edited, forwarded or otherwise interacted with the file over its lifetime

- When, why and by whom any part of the document (including metadata) was modified or deleted

A Deleted File/Picture is not really Erased or Deleted

• Hard Drive are file cabinets

• Deleted files are placed in the empty area of the file cabinet

• Depending on the amount of data that is saved, eventually the deleted file will be overwritten

Electronic Data – Sensitive to Alteration

Real Email

Altered Email

Preservation of Electronic Evidence

General rule Once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policy and put in place a “litigation hold” to ensure preservation of relevant documents.

What to do when served with a “Litigation Hold”

Meet with client – become familiar with client’s document retention system and document terminology

Identify “key players” and confirm their policies on retention

Meet with IT personnel who can help with document production

Issue a thorough “litigation hold” to all employees who may have relevant information.

What to do during a “Litigation Hold”

Continually communicate with client to monitor preservation efforts

Take possession of data or ensure data is in a safe location

Document all steps taken to preserve discoverable data

Duty to Preserve EvidenceSpoliation of evidence:

… is the destruction or significant alteration of evidence or the failure to preserve property for use as evidence in pending or reasonably foreseeable litigation. West vs. Goodyear Tire & Rubber Co.,, 167 F.3d 776 (2nd Cir. 1999)

Destruction of EvidenceSonoMedica, Inc. vs. Mohler, 2009 WL

2371507 (E.D.VA July 28, 2009)

• 2 computers were subpoenaed for examination and the Court ordered parties to turn over computer “without it being touched except to turn it off”. A forensic expert discovered that before turning over the computers “22,603 files/folders had been affected and 556 were manually deleted. Court sanctioned party for $108,215.15.

Zubulake vs. USB Warburg

• $29 million verdict – spoliation of evidence against USB because the company destroyed email messages that were requested

Questions? Comments?

Erik P. Crep, Esquire

Wicker, Smith, O’Hara, McCoy & Ford, P.A.

2800 Ponce de Leon Blvd, Suite 800

Coral Gables (Miami), FL 33134

(305) 448-3939

[email protected]