Tag Archives: Westlaw

Social Media Case Law Update — November 2013

Law Journal2As part of our periodic semi-monthly practice, we are checking in on the reported cases involving social media for this past month of November. Based upon reader feedback, I am going to try and make this a regular monthly feature on this blog.  So a quick tally identifies 76 cases where social media evidence played a key role last month, which is consistent with our overall analysis that the volume of cases has about doubled year over year. Keep in mind that the survey group only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated, or otherwise resolved last month alone.

The following are brief synopses of five of the more notable social media cases from November 2013:

 

AvePoint, Inc. and AvePoint Public Sector, Inc. v. Power Tools, Inc.  (U.S. Dist. Ct., Virginia, Nov.  7 2013) 2013 WL 5963034

In this Federal District Court case, software maker AvePoint, Inc., brought a trademark infringement and defamation action against competitor, Axceler, based upon allegedly false and deceptive statements that Axceler and its agents made about Avepoint through Twitter and LinkedIn, including setting up a fake LinkedIn account. AvePoint’s complaint features extensive evidence from Twitter and LinkedIn to establish trademark infringement, unfair business practices and actual confusion (a critical element for trademark infringement claims) amongst third parties.

Specifically, the complaint alleges that the defendant created a bogus account on LinkedIn purportedly for AvePoint representative named Jim Chung, thereby misappropriating the use of plaintiff’s registered trademark.  Emphasizing the confusion caused by the defendant’s actions, the plaintiff noted Jim Chung’s LinkedIn connection list.  The defendant also used Twitter to tweet messages in furtherance of the ruse.  The District Court refused Axceler’s request to dismiss most of the nine counts set out in AvePoint’s complaint, and the case remains pending.

In re Air Crash Near Clarence Center, New York, (U.S. Dist, Ct., New York, Nov. 18, 2013) 2013 WL 6073635

In a consolidated wrongful death action arising out of a fatal commercial airline crash near Buffalo, New York in 2009, the Defendant sought a supplemental production of one of the Plaintiff’s Facebook account, to include any new information and also Plaintiff’s extensive friend list, which was omitted from the previous production. Previously, the Court ordered production of social media account records consisting of more than 2,000 pages, after finding such records relevant to two specific issues in that case—Plaintiff’s domicile and the claimants’ loss of support claims. The Defendant argued that production of Plaintiff’s “friend list”  is relevant to assessing his Disorder, particularly his ability to socialize and communicate with others. The court found the request for production of the friends list to be not relevant to the claims at hand, but did order supplemental production of any new information in the Facebook account created since the prior production.

Shepherd v. McGee (U.S. Dist. Ct., Oregon, Nov.  7, 2013), 2013 WL 5963076

This employment case involved a scenario commonly referred to as a “Facebook firing.”  Jennifer Shepherd, a child protective services worker at the Oregon Department of Human Services (DHS), went to juvenile court six to eight times per month on behalf of children who she believed where being abused or otherwise were not safe in their homes. However, she posted several inflammatory messages to her Facebook page that disparaged many of the families and individuals whose homes she visited in a generalized manner, to wit: “If you physically abuse your child, someone should physically abuse you…If you don’t like my rules, too bad. I have a Ph.D., and you don’t, so I get to make up my own imaginary rules.”

The posts were seen by Shepherd’s Facebook friends, including a defense attorney and Polk County Circuit Court Judge. A DHS manager forwarded the posts to Ken McGee, an HR manager. McGee thought the posts reflected her own bias, which, in her position, she was supposed to put aside.  Shepherd was placed on leave and then terminated.

Deputy District Attorney Max Wall said Shepherd’s Facebook musings “would also likely require questioning as to her viewpoints on the abuse of children each time plaintiff took the stand in such a case and would likely hamper current and future cases.” Department of Justice Senior Assistant Attorney General Brian Raymer believed that Shepherd was “terminally and irrevocably compromised” and said her Facebook posts would prevent him from ever calling her as a witness. In his opinion, her statements would create trust issues with DHS clients and would reflect adversely on DHS in the relevant local community.

The court determined that the termination was justifiable and legal, noting that “Wall’s and Raymer’s declarations establish actual, material and substantial disruption to their working relationships with plaintiff.” The court concluded, “The government employer does not have to compromise its function by allowing the employee to actually cause disruption or fail to perform his or her job duties in order to establish an impairment in efficient operations.”

Hawkins v. College of Charleston, (U.S. Dist, Ct., South Carolina, Nov. 15, 2013) 2013 WL 6050324

Plaintiff alleged discrimination against College of Charleston in violation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. Prior to the filing of litigation, but during a time when the court determined litigation was reasonably foreseeable, Plaintiff deleted his Facebook account, resulting in what the court determined to be wrongful spoliation, and accordingly the Defendant College of Charleston moved to dismiss the action. The Court determined, however, that while the Facebook evidence was relevant to the case, it was “not central.” Additionally, the court found that while the Plaintiff, who suffers from cystic fibrosis and depression, intentionally deleted his Facebook account, he did not do so to prejudice his litigation, but to “rid his online profile of a painful time in his life.” Nonetheless, the court determined that a lesser penalty short of dismissal, such as an adverse inference instruction, was appropriate and would be imposed at a later time.

Bosh v. Cherokee County Governmental Building Authority  (U.S. Dist. Ct., Oklahoma, Nov.  22, 2013)    2013 WL 6150799

Plaintiff filed claims for civil rights violations arising out of alleged excessive force incident at Cherokee County Detention Center (“CCDC”). Plaintiff sought limited production of Facebook evidence related to the incident from one of the Defendants who apparently shared or transmitted information about the incident through his Facebook account. Separately, the Plaintiff sought full production of essentially Plaintiff’s entire Facebook account. While granting the first limited request, the court denied the broader request, deeming it “to be a thinly veiled attempt to gain permission to embark on a ‘fishing expedition’” into the Defendant’s Facebook account. The judge further reasoned that while “the Court is sensitive to Plaintiff’s concerns regarding compliance with this Order, Plaintiff has presented the Court with no reason to believe Defendant Chronister or his counsel of record, who is an officer of this Court in good standing, will neglect their legal or ethical obligations to faithfully comply with this Court’s orders.”

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Social Media Discovery Hotter Than Predictive Coding?

fire isolated over black backgroundIt was a great show last week at LegalTech New York. Definitely an increase in the number and quality of attendees and it was nice to see many friends and colleagues both old and new.

Also very noticeable were the many, many vendors sporting predictive coding (aka technology assisted review) messaging in their respective booths and various forms of marketing material. In fact, one industry colleague pointed me to a recent bold prediction offered by Recommind lawyer Howard Sklar, essentially proclaiming that predictive coding will have really hit the big time when a state bar organization issues an ethics opinion stating “that failure to use predictive coding is ethically questionable, if not unethical.” Sklar goes on to predict that such an opinion will come within the next 18 months.

I don’t disagree that such a development would be a big deal. But my question is, why stop at an advisory ethics opinion? What about an actual published court opinion where a sitting appellate judge decrees, without mincing words, that legal ethics obligations require lawyers to employ predictive coding? Now that would be huge. Something, in fact, like Griffin v. State, 192 Md. App. 518, 535 (2010), which addresses another hot topic in eDiscovery:

“[I]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.”

Now to be fair, I must point out that Griffin v. State was reversed and remanded on other grounds (419 Md. 343 (2011)), but I would argue the overall impact from an ethics and best practices standpoint is still there.

Sklar also points out three appellate level cases with written opinions that discuss the concept of predictive coding, without any definitive rulings compelling its use, but nonetheless discussing the concept. Two of the three are even retrievable on Westlaw. I think such appellate-level published decisions are important, which is why we highlight the several thousands of published court decisions in the past three years (see here and here) that have compelled the production of, admitted into evidence, or otherwise recognized the importance of social media evidence to the case at hand. New cases are being published every day, to the point where we candidly have stopped counting due to the deluge. So by the standard set by of my esteemed fellow eDiscovery lawyer Mr. Sklar, social media discovery is a very hot field indeed.

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689 Published Cases Involving Social Media Evidence (With Full Case Listing)

The torrent of social media evidence continues to grow. In November 2011 we searched online legal databases of state and federal court decisions across the United States to identify the number of cases from 2010 and through November 2011 where evidence from social networking sites played a significant role. As we mentioned then, the numbers exceeded even our high expectations. Recently, we revisited the survey with a little more detail to include results for all of 2011 to be sure we eliminated duplicate entries as well as de minimis entries — defined as cases with merely cursory or passing mentions of social media.

Under these criteria, the more exact number came up to 689 cases. Our raw data and tallying methodology is now public, with the spreadsheet available here, allowing for anyone to review the cases and provide your own analysis. The vast majority of the cases are accessible for free on Google Scholar.  About 5 percent of the listed cases are only available by subscription to Westlaw or LexisNexis.

The search, limited to the top four social networking sites, tallied as follows: MySpace (315 cases), Facebook (304), LinkedIn (39) Twitter (30). Oh, and my colleague Tod Cole insisted that I mention the lone Foursquare case. From the detailed review, a significant percentage, if not the majority of the MySpace cases involved criminal matters. Facebook mentions were trending up with MySpace  trending down as cases with more recent facts worked their way through the system.

Criminal matters marked the most common category of cases involving social media evidence, followed by employment related litigation, insurance claims/personal injury, family law and general business litigation (trademark infringement/libel/ unfair competition). As only a very small number of cases involve a published decision that we can access online, it is safe to assume that several thousand, if not tens of thousands more cases involved social media evidence during this time period. Even so, this limited survey is an important data point establishing the ubiquitous nature of social media evidence and the importance of best practices technology to search and collect this data for litigation and compliance requirements.

- VIEW ALL 689 CASES & MORE HERE >

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