Social Media in Action in Litigation, Evidence & Privilege

Chapter Authors

United States:

Alexander “Sandy” Y. Thomas, Partner – athomas@reedsmith.com
Maureen C. Cain, Associate – mcain@reedsmith.com

United Kingdom:

Emma Lenthall, Partner – elenthall@reedsmith.com
Louise Berg, Associate – lberg@reedsmith.com


Introduction

This chapter looks at the relationship between social media and litigation practices.

Millions of employers, employees, and jurors use social media such as LinkedIn, company websites, Facebook, Twitter, MySpace, and YouTube for business and personal reasons. Users of social media are often very candid and tend to post messages and photos with little thought, in an informal, spur-of-the-moment manner, from smart phones, BlackBerrys, and personal computers. Social media postings often include details that the user would never disclose directly in a formal correspondence, and certainly not to the boss of their company or to an opposing attorney if litigation were involved. Moreover, many people using social media do not realise that such postings often become a permanent record, even if the items are removed.[1]

Lawyers have begun researching social networking sites to gain information about all aspects of a case, including the parties on the other side, how a particular business is conducted, the witnesses, and the jurors. Social media sites contain valuable information such as messages, status updates, photos, and times of every posting, all of which can be used to undermine an opponent’s case in litigation, and which can even negatively affect a company’s business and public image.

This chapter describes various real-life examples of how social media has been used to undermine an opponent’s case in litigation and to negatively affect the image and business of various individuals or entities. Specifically, this chapter discusses how social media has been used to impeach witnesses, uncover documents that would ordinarily be protected by the work-product or attorney-client privilege, expose juror misconduct, and serve legal documents. As an employer, it is important to understand and educate all employees and in-house counsel on the risks associated with social media, how it can undermine the company’s legal positions, and its ultimate effect on business operations and public relations. (See Chapter 6 – Employment)

Social Media in Action in Litigation

The Use of Social Media To Impeach Witnesses

Social media sites may contain contradictory statements, character evidence, or other evidence that can be used to impeach witnesses during litigation. Below are a few illustrations:

  • In July 2008, Trisha Walsh Smith made a YouTube video regarding her bitter divorce from Broadway mogul Phillip Smith. In the video, Ms. Smith complained about the terms of her prenuptial agreement and made embarrassing sexually based remarks about her then-husband. After reviewing the post, the judge presiding over the case refused to change the terms of the prenuptial agreement and granted the husband a divorce on the grounds of cruel and inhumane treatment.[2]
  • In People v. Liceaga, 2009 WL 186229 (Mich. App. 2009), the defendant was convicted of second-degree murder and possession of a firearm during the commission of a felony after shooting a friend in the head. The defendant admitted to shooting his friend, but claimed it was an accident. The principal issue at trial was the defendant’s state of mind at the time of the shooting. Pursuant to Michigan Rule of Evidence 404(b)(1) involving prior act evidence, the trial court allowed the prosecution to introduce a picture of the defendant from his MySpace.com website that depicted him holding the gun that was used to shoot his friend, and displaying a gang sign with his hands. After the defendant was convicted, he appealed, arguing that the MySpace photograph was inadmissible. The Michigan Court of Appeals affirmed the trial court’s evidentiary ruling, stating that three witnesses used the photo to identify the defendant as the person who previously threatened them with the gun used in the case, and it was relevant for showing the defendant’s familiarity with the weapon used in the offense.
  • Shortly after severely injuring a young woman while driving under the influence, Joshua Lipton posted a photo of himself on Facebook jokingly wearing an orange prison jumpsuit during a Halloween party. The Rhode Island assistant attorney general displayed the photo in court as part of a PowerPoint presentation with the title “Remorseful?” over the photo. The judge presiding over the case focused in part on the photo when deciding to sentence Lipton to two years in state prison for his DUI.[3]
  • In Mai-Trang Thi Nguyen v. Starbucks Coffee Corp., 2009 WL 4730899 (N.D. Cal. 2009), a Starbucks employee was fired for inappropriate conduct and threatening violence to fellow employees. The employee then sued Starbucks for, inter alia, sexual harassment, religious discrimination, and retaliation. The employee’s MySpace page was submitted as evidence by Starbucks, where plaintiff stated: “Starbucks is in deep s**t with GOD!!! …I will now have 2 to turn 2 my revenge side (GOD’S REVENGE SIDE) 2 teach da world a lesson about stepping on GOD. I thank GOD 4 pot 2 calm down my frustrations and worries or else I will go beserk and shoot everyone….” Based on the evidence submitted by Starbucks, the court granted summary judgment in its favor.

As the above examples illustrate, users of social media often fail to consider the consequences of their posted statements and photos prior to such postings. In the corporate world, analogous postings could be made by employees regarding a wide range of work-related issues, including comments concerning layoffs that implicate the Age Discrimination and Employment Act, disclosures of intellectual property and trade secrets in various career-oriented chat rooms or blogs, and gossip about a sexual harassment or white collar crime internal investigation. It is imperative that a company’s managers, supervisors, and employees are educated on the implications and discoverability of such postings so that their use of social media does not undermine legal positions in a future or pending lawsuit against the company. (See Chapter 6 – Employment)

The Waiver of the Work-Product Doctrine and Attorney-Client Privilege Through Social Media

The use of company websites and other social media also provide real opportunity for waiver of the work-product doctrine protection and attorney-client privilege through public disclosure of confidential information. Below are a few examples:

  • In Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003), Kintera sued its competitor Convio for copyright infringement and misappropriation of trade secrets after Convio allegedly obtained a CD Rom belonging to Kintera containing proprietary and confidential computer program codes relevant to both companies’ Internet-based marketing and fundraising services. For commercial reasons, Kintera discussed the alleged misappropriation of trade secrets on its company website, and noted that it had obtained signed affidavits under penalty of perjury from Convio employees. During discovery, Kintera tried to withhold the affidavits from Convio pursuant to the work-product doctrine but, based on the disclosures of the affidavits on Kintera’s website, the court rejected Kintera’s objections and ordered that Kintera produce the witness statements contained in the affidavits.
  • In Stern v. O’Quinn, 253 F.R.D. 663 (S.D. Fla. 2008), Howard K. Stern, the attorney and companion of Anna Nicole Smith, filed a defamation action against John M. O’Quinn & Associates after the firm allegedly made defamatory statements about Mr. Stern to the media while representing Ms. Smith’s mother, Virgie Arthur. Around the same time, a book was published entitled Blond Ambition: The Untold Story Behind Anna Nicole Smith’s Death, which accused Mr. Stern of numerous criminal acts. An investigator for the book, Wilma Vicedomine, discussed the results of her investigation with the author and also made numerous statements in on-line chat rooms regarding her investigative progress, including strategy, efforts to have Mr. Stern prosecuted, and conversations she had with Ms. Arthur. During discovery, plaintiff sought documents from the O’Quinn law firm that supported the statements made by the firm to the media. Furthermore, the discovery requests sought to determine the firm’s efforts in investigating whether the statements it made about plaintiff were true or false, including the statements made by Ms. Vicedomine for the Blond Ambition book. The firm tried to argue that the investigation for the book was protected by the work-product doctrine, but the court rejected such an argument because, inter alia, the contents of the investigation were published in chat rooms and to the author of the book. Accordingly, the court required the production of all postings in the chat rooms and all documents and statements provided to the author of the book.

As the above examples demonstrate, users of social media must be careful when disclosing personal or business information on-line in order to ultimately protect themselves from waiving the work-product doctrine or attorney-client privilege (or the foreign equivalents) in future or pending litigation. It is often sound business strategy for a company to post statements on its website to keep the public informed on various issues, and to ensure public confidence in the company’s product and services, bolster public relations, and increase profitability. However, if a company discloses too much, there are instances where it will risk waiving work-product and attorney-client communication protections. Managers, supervisors, or employees who disclose work-related issues in chat rooms and blogs run the risk of waiving both privileges as well, forcing a company to produce documents they ordinarily would have every right to withhold in litigation. Thus, it is essential that all managers, supervisors, and employees understand the implications of discussing work-related issues on-line, and to realise that certain postings will come back to haunt the employees and the company for which they work.

Social Media Use by Jurors

Social media can have a particularly pernicious effect on jury trials. In several recent instances, jurors have made inappropriate disclosures concerning corporate and individual litigants during the pendency of a trial. Businesses should police social media postings while a trial is ongoing to protect themselves from the consequences of such postings. Below are a few examples where such postings have been made:

  • In March 2009, Stoam Holdings, a building products company being sued for allegedly defrauding two investors, asked an Arkansas court to overturn a $12.6 million judgment, claiming that a juror used Twitter to send updates during the civil trial. The juror, Jonathan Powell, sent Twitter messages including, “oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter” and “So Jonathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” The trial court denied the motion seeking to overturn the verdict and the attorneys are currently appealing.[4]
  • In August 2009, two jurors in a murder trial had posted Facebook comments critical of jury duty and the length of trial. One Facebook Friend responded by stating, “Fry him.” A second responded that the juror should “Just vote guilty and get it over with.”[5]
  • In March 2009, defense attorneys in a federal corruption trial of a former Pennsylvania state senator, Vince Fumo, demanded before the verdict that the judge declare a mistrial because a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming on Monday, prior to the verdict. Judge Buckwalter decided to let the deliberations continue, and the jury found Fumo guilty of all 137 counts charged in the indictment. His lawyers plan to use the Internet posting as grounds for appeal.[6]
  • In December 2009, Baltimore Mayor Sheila Dixon was convicted by a jury of embezzlement for stealing gift cards intended for the less fortunate. After the verdict, her lawyers initially asked for a new trial in part because five of the jurors were communicating among themselves on Facebook during the deliberation period, and at least one of them received an outsider’s online opinion regarding how the jury should decide the case.
  • In an English case in November 2008, three men were on trial for child abduction and sexual assault. One juror posted details of the trial on Facebook and created a poll, stating that she did not know “which way to go.” No privacy settings were activated so the posts could be read by all other Facebook members. The juror was subsequently dismissed from the jury.

As the above examples indicate, the use of social media by jurors during a trial may impact a company’s public image, business, and stock price if a juror leaks information about his or her perception of the case prior to the final verdict being rendered by all jurors. The use of social media by a juror may be grounds for a mistrial or an appeal because the social media postings of the juror may indicate that the juror was biased and was making a decision prior to reviewing and considering all evidence. Retrying a case and/or taking an appeal are both time-consuming and costly for companies. To prevent the above injuries to a company, it is essential that explicit instructions are given to the jury prior to the commencement of trial prohibiting the use of social media. Furthermore, it is wise for companies and their legal teams to research the social media sites during the trial to ensure that no juror is leaking the jurors’ thought processes about the case to the public and/or being tainted by other individual’s responses to any postings on the social media sites.

The Impact of Social Media on Methods of Service

Recent cases have also demonstrated that social media is forcing lawyers to consider more modern, and in some cases more appropriate, methods of service.

In October 2009, the English High Courts permitted service of an injunction via Twitter. In this case, which has become known as the ‘Blaney’s Blarney’ case, an anonymous Twitter user created a profile impersonating a right-wing political commentator and solicitor, Donal Blaney. The profile posted photographs and linked to Mr Blaney’s blog. Mr Blaney applied to the courts for injunctive relief against the unknown user.

The English Civil Procedure Rules allow service by several traditional methods, but also allow a claimant to request alternative service by less conventional means. The claimant must show that there is a good reason for doing so. In this case, it was permitted on the basis that the defendant was anonymous and could not be contacted.

The English courts were shown the way by the Australian courts in 2006, when service of a default judgment was permitted via Facebook (MKM Capital v. Corbo and Poyser, 2008, unreported). The claimant demonstrated that all alternatives had been exhausted, as the defendants were entirely uncooperative and, although not anonymous, had provided no address. The judge also required the claimant to show that it could reasonably be assumed that the Facebook accounts were set up and maintained by the defendants – the claimant did so by matching email addresses and dates of birth, as well as showing that the defendants were ‘friends’. A similar case occurred in New Zealand in March 2009.

As social media provides increasing scope for defamation and copyright infringement, more claimants likely will opt for service via these websites to overcome the obstacle of identifying the defendant. The flaw, however, in allowing such alternative methods of service may be in enforcement. In the Blaney’s Blarney case, the user complied and removed the profile. Otherwise, Mr Blaney would have had to go to Twitter to obtain the user’s details, and as they are based in California, there could have been problems enforcing any order.

Bottom Line—What You Need to Do

What is said on social media sites can and will be used against you and the company for which you work in a court of law, in the court of public opinion, and ultimately in the business world. Accordingly, it is essential that all managers, supervisors, employees, and in-house counsel be educated on the pitfalls involved with social media so as to prevent such postings from undermining your company’s legal position, business relations, and public image.



[1]      See, “A Growing Trend: Social Media As Legal Evidence,” West Michigan Business, July 29, 2009, available at http://www.mlive.com/business/west-michigan/index.ssf/2009/07/a_growing_trend_social_media_a.html

[2]       See, Phillip K. Anthony and Christine Martin, “Social Media Go to Court,” The National Law Journal, Feb. 2, 2009; Brad Hamilton, “Inside the YouTube Divorce,” New York Post, April 20, 2008, at http://www.nypost.com/seven/04202008/news/nationalnews/inside_youtube_divorce_107240.htm

[3]      See, Andrea Panciera, “Facebook Photo Plays Role in DUI Accident Sentencing,” Providence J., May 27, 2008 at http://newsblog.projo.com/2008/05face-book-photo.html; Phillip K. Anthony and Christine Martin, “Social Media Go to Court,” The National Law Journal, Feb. 2, 2009; see also United States v. Villanueva, 2009 WL 455127 (11th Cir. 2009) (affirming district court’s sentencing enhancements involving possession of firearm based on statements made in YouTube video and MySpace photos showing defendant with an AK-47 and loaded clip); Clark v. State, 915 N.E.2d 126 (Ind. 2009) (affirming trial court’s evidentiary ruling admitting boastful statements made by defendant on MySpace regarding how society labels him as an outlaw and criminal).

[4]     See, John G. Browning, “Dangers of the Online Juror,” at http://www.yourhonor.com/IC-Online/IC_Summer09/OnlineDanger2.html

[5]      See, Tom Murse, “Roseboro Juror’s Facebook Postings Pose Problems,” Intelligencer Journal Lancaster New Era, Aug. 4, 2009, available at http://articles.lancasteronline.com/local/4/240616#

[6]     See, John Schwartz, “As Jurors Turn to Web Mistrials Are Popping Up,” The New York Times, March 17, 2009, available at http://www.nytimes.com/2009/03/18/us/18juries.html