Litigator Strategies for Social Media Use

Article in the Texas Lawyer on the use of social networking as evidence in personal injury litigation.  The author makes several interesting points:

• Law is still unsettled and Canadian Law is ahead of U.S. law on this topic
• The Electronic Privacy Act shouldn’t be seen as precluding release of discoverable information if a court deems the information relevant
• Given that profile information can be deleted, the social media site should also be contacting as part of the discovery process
• Finally, given the public nature of social media participation, information restricted by privacy settings should not be seen by the individual as absolutely secure from the other side

Juror Facing Facebook Profile Probe

This article discusses an investigation into a jury forewoman’s Facebook posts because the defendant’s attorney believe she knew about the case before she served on the jury.

Facebook as Stalling Tactic?

Is Facebook going to be used by attorneys as a way to throw additional roadblocks into legal process?  If I were representing a plaintiff or defendant, I would review social media profiles by all parties to a case – judges, other attorneys, witnesses, plaintiffs, defendants, family members etc.  There maybe fodder for all kinds of motions lurking out there on the Internet!

Social Networking Plays a Role in Sentencing

I had read about the use of social networking during discovery, particularly defense attorneys looking for Facebook and other social networking postings that contradict the plaintiff’s claims but I didn’t know that social networking was also playing a role in the sentencing of defendants as well.

This article explains that it can both help and hinder the defendant’s cause and they cite a recent case where a defendant’s claims of contrition were undercut by postings on her MySpace page to the contrary.  However, the article goes on to show that a defendant’s message to his Facebook friends asking them to submit character references on his behalf to the judge.   Did it work?  The man did receive a prison sentence two years shy of the federal guidelines.

Blogging Litigation – Don’t be scared

The media is picking up on a new trend involving litigation involving blogging.  Note the deceptive headline for this Wall Street Journal Law Blog post, “Blogging a Hotbed of litigation.”

Hotbed – Really?

The article points out a few lawsuits involving comments, websites and bloggers.   The article cites no example of an identifiable blogger who wrote an opinion about an issue or person in a responsible way (no name-calling, curse words, or threatening or harassing language) that has been sued.  Instead they are focused on the extremes – anonymous commenters, threatening or derogatory language and the like.

There are millions of bloggers posting millions of posts a day and these few examples constitute a hotbed?

Takeaway

If you are blogging professionally as a lawyer use the same level of common sense and restraint that you would use for all business communications.   Remember, not only will this help you avoid lawsuits but it also makes your blogging more credible and trustworthy and that is the most important thing.

Big Brother software: any privacy issues?

An article in today’s Wall Street Journal, discusses small businesses purchasing computer surveillance software to monitor workers’ use of technology and the Internet.  Given the statistics about people viewing Facebook at work for recreational reasons, the fact that workers can be doing all kinds of things with their computers, including viewing pornography, moonlighting for another company, cyber stalking and so much more, there certainly is a strong case for monitoring employees use of their company computers, phones and other mobile devices.

What about privacy rights?

Its worth noting that the Supreme Court, in the widely read Quon case where an employee was exposed for using his pager for private texting, didn’t deny that the employee had a reasonable right to privacy over the texts he paid for even if he used the pager provided by his employer (The City of Ontario).  What about an employee being spied on by surveillance software?  Might that person have a reasonable expectation that an employer wouldn’t spy on them without notice?  I think an employer is well-served by putting employees on notice about the possibility of surveillance.

What if Everyone’s Doing It?

What if an employer discovers that the most productive employees are no different than the less productive employees in how much they use social networking?  Should an employer clearly state how its using such surveillance software? That its using the software to detect illegal or unethical use of technology by employees not merely track Facebook use?  Increasingly, employees with laptops and mobile devices use technology around the clock. For employees who are working at night or on the weekend, how should the employer handle their recreational use at those times?  Insist employees use personal machines to check their Facebook profiles?

Workplace Revolution

Technology has created a double-edge sword for workers and management.  On the one hand, employees are given the tools so they can be responsive to work demands late into the evenings and on the weekends.  On the other hand, employees have tools to enjoy social networking and other pleasures of the Internet while working or not.  This suggests that employers need to get back to basics – making sure that employees are properly managed so that its clear whether they are productive or not.  Why subject productive employees to morale-deadening restrictions on their use of the Internet?  If an employee’s performance is slipping, he or she is missing deadlines or doing sloppy work, that is the time to investigate. Even in the Facebook culture, that truth hasn’t changed.

Facebook sued by Sacramento law firm

Facebook and Zynga, a company that allows users to play games on Facebook and other social networking sites are being sued by the firm of Kershaw, Cutter & Ratinoff for misleading advertising promoted by these companies in a Federal class action filed in the Northern District of California.  Last week, the Kershaw law firm signalled that likelihood of this suit.

One of the plaintiff’s in the case, Rebecca Swift, says she was repeatedly charged $9.99 after she divulged her cell to a Zynga advertiser, and she was the hit with $165.85 even after she attempted to terminate a “trial offer” of green tea products.

Chinese drywall trials could begin in 6 months

“U.S. District Judge Eldon E. Fallon, who is overseeing the consolidated lawsuits over Chinese drywall, has indicated he intends to move the litigation forward quickly and the first trials could begin in six months.

All federal lawsuits filed by homeowners throughout the United States over damages caused by defective drywall imported from China were centralized and consolidated on June 15 in an MDL, or Multidistrict Litigation. The cases were assigned to Judge Fallon in the Eastern District of Louisiana for pretrial litigation.

While it typically takes more than a year for the first trials to occur in complex MDL litigation like this, Judge Fallon intends to fast track the first trials, referred to as “bellwether” trials because they are selected to be representative of issues that will be presented to juries in other cases involved in the litigation.”

Article:

Insurance may not cover chinese drywall

“From the point of view of the homeowner, these claims will not likely be covered by homeowners property insurance. And, to the extent that the damages are not covered by the general liability policies of builders, subs, and distributors, homeowners will incur devastating out of pocket losses.”

Article:

Facebook hit with more lawsuits

“TechCrunch reports that Power.com has now filed a countersuit, claiming Facebook is “unlawfully withholding the data that users own (as stated in Facebook’s own ToS), and is stifling competition by refusing to allow third party services like Power.com to access the data, among other things.”

Facebook also faces legal action from RootZoo, an erstwhile advertiser. After analytics from their Nov 2007-June 2008 campaign varied greatly from Facebook’s reported data, RootZoo requested Facebook’s logs and a refund. Facebook said no to both.”

Article:

Drywall replacement costs: $100,000

“Randy Noel, president of the local building firm Reve Inc., testified before a Senate subcommittee in May that it would cost roughly $100,000 per home to replace the tainted drywall and corroded wiring. While he said large, publicly traded builders might be able to absorb such costs, it was almost out of the question for mom-and-pop operations.”

Article: