The Risks of Social Media in Litigation

Social media is obviously not going anywhere. You’ve heard the statistics: Facebook is approaching 600 million users, Twitter users post 90 million “tweets” per day, and the fastest growing demographic of social-media users are those over age 55. The impact of social media cannot be ignored. It is not just influencing how we communicate, but how lawyers litigate.

For some time there has been a lack of guidance on the discoverability and use of social-media content in civil litigation, but recently a growing number of court decisions and ethics opinions have addressed this issue.

So just how is social media used in litigation?

Social Media as Evidence

Social media is not limited to only family and criminal litigation. The usage of it in commercial, intellectual property, employment, products liability and personal-injury cases is quickly growing. Courts and litigants across the country are increasingly relying on evidence secured from social-networking sites. All sorts of evidence discoverable through social media are easy to imagine such as evidence of actual confusion in a trademark case, or evidence of reputation in a libel case.

Securing the Evidence: Public Search or Discovery Request

Often, individuals fail to restrict access to their social-media profile pages, and information about their background, location, reputation, credibility and friends is available to the general public, including an adverse party and the adverse party’s counsel. Thus, as soon as litigation seems likely, it is important to complete a thorough Internet search for information related to the opposing party, not just on Google, but directly on social-media sites.

Recently, the New York State Bar Association issued an opinion that lawyers may access another party’s social media site for potential impeachment material “as long as the party’s profile is available to all members in the network and the lawyer neither ‘friends’ the other party nor directs someone else to do so.” N.Y. State Bar Assoc., Ethics Opinion 843 (Sept. 10. 2010).

If an opposing party’s social media page is not available to the general public, the most efficient way to secure evidence on it is through discovery requests. Investigators can request identification of “any screen names or other identities used on computer sites or for social networking” and document requests might ask for social-media postings and messages related to the claims and damages in the lawsuit.

In 2010, a New York state court ordered a personal-injury plaintiff to provide a consent and authorization so Facebook and MySpace could turn over access to her entire Facebook and MySpace pages, even though she used strict privacy settings. Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010). In the lawsuit, the plaintiff alleged back and neck problems. But defendants noticed that her publicly available pages painted a different picture. The court noted that the plaintiff’s “private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.” Citing Facebook’s and MySpace’s own policies, which warn users that they should have no expectation of privacy, the court noted that “when plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.”

E-Discovery: Playing Defense

The face of discovery was changed forever when email was born: appropriately named “e-discovery.” And it is predicted that social media will soon replace e-mail as the primary vehicle for interpersonal communications for 20% of business users.

Litigators need to be ready, not just to make the most of social media but also to protect their clients against claims. Social media will no doubt impact preservation, collection, review and production efforts so parties should consider early on whether relevant information may be found on a social media site, and if so, whether or not they are required to or wish to preserve and/or collect such information.

What Can Lawyers Do?

It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated with relevant technology.

1.  Know What Your Client is posting on Social Media

In a 2014 case out of the Florida Court of Appeals, the daughter of the winning party posted a comment on her Facebook page about the outcome of a lawsuit and how it would pay for her European vacation. Unfortunately, the post violated the confidentiality provisions of the parties’ settlement and torpedoed the settlement. Oops! This is a good reminder to always know what your client is posting on social media.

2.  Don’t Remove, or Condone the Removal of Evidence

Social media posts, like any other type of “evidence” may be relevant to the lawsuit in which you are involved. Therefore, like any other type of evidence, counsel may not alter or destroy relevant social media posts nor can we direct or assist others in doing so.

For example, a lawyer directed his client to clean up his Facebook page, and then ultimately deactivated the client’s account before signing a discovery response that the client did not have a Facebook account. The Court levied a collective fine of $722,000 in sanctions against the lawyer and the client, and referred the attorney to the Virginia State Bar.     In addition to the spoliation dangers presented by social media, Gatto dovetails nicely with Point I, supra, and serves as an important reminder to know both what your client is posting, and what your client may be deleting.

Conclusion

It is important to remember that the essence of the legal profession is confidentiality and discretion. The take-away is simple: Rather than run into an ethics problem as a result of a social media post, tweet, hashtag, etc., think before you post.

Could your Social Media posts be used against you in court?

The short answer…yes and no.

Want to know how? Read on!


Most of us use social media to share pictures, exciting events or happenings, uplifting videos, and funny quotes. But some of us also use it as a platform for our political, religious, and social views as well as our downright brutally honest thoughts and feelings. Whether we transmit our rants to hundreds of eager listeners or in private chat threads, we should clearly understand the consequences of our actions.


“Sharing a public rant about your ex-spouse or former employer online may not seem problematic – a lot of people do that to get support and some cheering,” said Sherwin Arzani, attorney at Citywide Law Group. “However, you should remember that social media is evidence and discoverable. Depending on the situation, your opinions can either hurt and/or help your court case.”


Your social media posts can be used as evidence against you
Courts today are more than willing to admit social media content as a form of evidence both for and against you.


In a recent personal injury lawsuit, Largent v. Reed, the plaintiff claimed that a recent accident had left her with severe physical and mental pain. During the course of the trial, defendants presented the court with post-accident photos posted to her Facebook account. These photos demonstrated the plaintiff was clearly feeling well enough to engage in her daily activities such as attending the gym and enjoying life. With this information, the court ordered the plaintiff to hand over her Facebook login information for further inspection.


The lesson? Never assume that anything you share online (publicly or in private messages) is fully confidential. “If you are involved in any case or proceeding, or even a case or proceeding that is reasonably foreseeable, think twice before posting anything that can be self-incriminating or used against you in the courtroom,” said Joseph Fantini, attorney at Rosen Injury Lawyers.


Public social media posts count as legally obtained evidence
Contrary to popular belief, it is legal to use communications garnered from social media sites as evidence. Judge Michael Corriero explains that “the prohibition against using illegally obtained evidence applies primarily, essentially solely, to law enforcement. It doesn’t apply to another civilian.” If you have exchanged self-incriminating messages with someone privately, maybe through a messenger app, those would be admitted by most courts without any issue.


According to Ambrosio Rodriguez, a criminal defense attorney at The Rodriguez Law Group, the same applies to photographs, taken and published by you or someone else. “If a friend takes and publishes a controversial picture showing you drunk in public you may act against them for unfairly depicting you as drunk. But if you were actually drinking at that time, these photos will be used as evidence against you in a relevant proceeding,” he explained.

Deleting your social media content during trials is not smart
“When you are involved in a lawsuit, the rules of evidence apply to your social media content just as they do to the discoverability and admissibility of other forms of evidence,” said Ryan Van Steenis, an attorney at Ajamie LLP, in Houston, Texas. “It is not advisable to delete the content you have shared online. Depending on the circumstances, such activity can be considered serious. A court may find that a negative inference should be held against you for the destruction or spoliation of relevant evidence. This can have adverse consequences to your case, and attorneys representing clients with social media properties should advise their clients how to manage their social media content accordingly. A client is permitted to adjust their privacy settings, but do not take any further actions that the court may deem as suspicious.”


And what you think is “permanently” deleted content” can actually be recovered using new-gen forensic recovery methods. Even if your personal device is password protected, it does not mean that the authorities cannot legally get access to it. Suspects and parties undertaking a trial can be served with a disclosure notice demanding them to reveal all passwords. Failure to comply can lead to further penalties. Everything you share on social media can become part of the public record – whether you want it or not.


So how can you stay safe?
Be a selective sharer. Always stay on the safe side and don’t share anything that you would not otherwise tell freely in public.
Consider using one of the best VPN services available. This helps keep your online activities protected against snooping, interference and censorship, according to TechNadu.
Be careful where you click. Risky apps and dangerous links sent via social media can give hackers access to spy on you, according to CBS News. Also, don’t respond to messages from strangers.

The Dark Web: What’s New?

Even if you haven’t heard of the term “dark web”, you can probably discern that it’s not a great place to be. 

This anonymous, virtually untraceable area of the internet makes it ripe for illegal activity. 

When you surf the internet, you’re just scratching the surface. “Only about 5% of the internet is actually indexed by search engines like Google, Yahoo and Bing,”said Justin Yapp, a PhD student studying cyber security. The other 95% is the “deep web,” with most of the internet unreachable for search engines.

The dark web is an even smaller and more hidden chunk and requires special software — like Tor, which stands for “the onion router.” The name comes from the layers of encryption, which are like the layers of an onion. The information bounces from computer to computer around the world, peeling off encrypted layers until it reaches its destination. It’s anonymous and virtually untraceable — even for law enforcement. “There’s a lot of illegal activity that goes on,” Yapp said. The dark web is notorious for drugs, weapons, child porn and for selling stolen personal information.

Here’s what you should know about dark web websites:

There is bad stuff, and crackdowns means it’s harder to trust

Many dark web marketplaces for drugs and hacking services featured corporate-level customer service and customer reviews, making navigating simpler and safer for newbies. But now that law enforcement has begun to crack down, the experience is more dangerous. “The whole idea of this dark net marketplace, where people are able to review drugs that they’re buying from vendors and get up on a forum and say, ‘Yes, this is real’ or ‘No, this actually hurt me’—that’s been curtailed now that dark marketplaces have been taken offline,” says Radware’s Smith. There are still sites where drugs are reviewed, says Smith, but they have to be taken with a huge grain of salt.

Also, many dark web drug manufacturers will also purchase pill presses and dyes, and create dangerous look-a-like drugs. “One of the more recent scares that I could cite would be Red Devil Xanax,” he said. “These were sold as some super Xanax bars, when in reality, they were nothing but horrible drugs designed to hurt you.”

Smith says that some traditional drug cartels make use of the dark web networks for distribution, “it takes away the middleman and allows the cartels to send from their own warehouses and distribute it if they want to. You know how there are lots of local IPA microbreweries?” he says. “We also have a lot of local micro-laboratories. In every city, there’s probably at least one kid that’s gotten smart and knows how to order drugs on the dark net, and make a small amount of drugs to sell to his local network.”

Not everything is for sale on the dark web

We’ve spent a lot of time talking about drugs here for a reason. Smith calls narcotics “the physical cornerstone” of the dark web; “cybercrime—selling exploits and vulnerabilities, web application attacks—that’s the digital cornerstone. Basically, I’d say a majority of the dark net is actually just drugs and kids talking about little crimes on forums.”

Some of the scarier sounding stuff you hear about being for sale is often just rumors. Firearms, for instance: as Smith puts it, “it would be easier for a criminal to purchase a gun in real life versus the internet. Going to the dark net is adding an extra step that isn’t necessary in the process. When you’re dealing with real criminals, they’re going to know someone that’s selling a gun.”

Some sites seem perfectly innocent

Matt Wilson, chief information security advisor at BTB Security, says “there is a tame/lame side to the dark web that would probably surprise most people. You can exchange some cooking recipes—with video!—send email, or read a book. People use the dark web for these benign things for a variety of reasons: a sense of community, avoiding surveillance or tracking of internet habits, or just to do something in a different way.”

Of course, not everything is so innocent, or else it wouldn’t be found on the dark web. Still, “you can’t just fire up your Tor browser and request 10,000 credit card records, or passwords to your neighbor’s webcam,” says Mukul Kumar, CISO and VP ofCyber Practice at Cavirin. “Most of the verified ‘sensitive’ data is only available to those that have been vetted or invited to certain groups.”

“There are alot of countries that block social media,” Yapp said. Even journalists working to spread content in countries where information is restricted, like China, use the dark web. “I would not recommend anybody go and try it unless they know what they’re doing,” Yapp said.

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We have been mining social media since 2007 for our clients. By utilizing best in class software programs, we offer a service called eChatter.

eChatter works with you to obtain your objectives in a fast, accurate and reliable facet. By keeping our strengthened principals, yet evolving with this industry, we lead in social media monitoring. Since 2007, we have been dedicated to providing our customers with the most authentic data.  

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Are Background Checks Failing Us?

All one has to do these days is turn on the local news to hear about another teacher, coach or employee being accused of a crime of either drugs or child sexual abuse. If you are like me, the first question you think of is, “Don’t they do background checks?” What we are starting to find out, is yes they do. The problem is with the way in which the background checks are being done and by whom.

Let’s start with the basics and the must haves. The FCRA, or the Fair Credit Reporting Act, was passed in 1970 to ensure regulations of the collection of credit information. Additionally, The Equal Employment Opportunity Commission   governs how this is to be done:

 In all cases, make sure that you’re treating everyone equally. It’s illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.

Where the problem lies, in may cases, is with the actual agencies in which background companies receive their information. They may not be updated regularly enough. That in and of itself is a problem. But the list goes on…

background checks

You may be surprised to learn the following flaws:

  1. The FBI offers a National Criminal Information Center which is great, as long as the crime was reported to the FBI. Beginning in 1967, it is  dependent on records that have been provided by criminal justice agencies. It operates under a shared management concept between the FBI and federal, state, local and tribal criminal justice users.
  2. Many times education is not checked out thoroughly which can be very detrimental down the road. This includes professional licenses.
  3. They often don’t utilize the information from paid data bases.
  4. Social Media is rarely included. I don’t mean the prospective employee gives up passwords.  That should not ever be done in my opinion, however much can be gleaned by conducting a deep web investigation, without that information. A social media background check may reveal quite a lot about the character of the individual. Many HR execs are looking anyway, however hiring an agency is the safest way to go. A best practice is to never review your candidates’ social media profiles internally. This is beneficial because an agency’s review and social media report respect your candidate’s privacy and alleviates your employees from reviewing content that could lead to accusations of discrimination or violations of freedoms.