As if anyone needed a reminder that their online lives are on public display, recent events have driven the point home yet again. Heisman Trophy winner Johnny Manziel, a.k.a “Johnny Football,” was pulled over and issued a ticket for allegedly speeding near Dallas. The presiding judge, Lee Johnson, then posted about the ticket on his Facebook feed. How can an example of the potential embarrassment of social media discovery be any clearer? 
Facebook Status
The screen shot from Judge Lee’s Facebook feed reveals the full posted comment:
"Too funny. So it seems that a certain unnamed (very) recent Heisman Trophy winner from a certain unnamed ‘college’ down south of here got a gift from the Ennis P.D. while he was speeding on the 287 bypass yesterday. It appears that even though the OU defense couldn't stop him, the City of Ennis P.D. is a different story altogether. Time to grow up/slow down young 'un. You got your whole life/career ahead of you. Gig Em indeed.”
As a postscript, a few moments later, Judge Lee added: “I meant to say ‘allegedly’ speeding, my bad.”
In response, Ennis City Manager Steve Howerton issued a news release stating that "receiving a traffic ticket is not a humorous matter. Further, it is not the policy of the city of Ennis to indiscriminately publish the identity of traffic ticket recipients or to publicly lecture them." He also added that Judge Lee’s post was “insensitive and inappropriate.”
Truth and Consequences
Although the judge has been officially reprimanded, it’s unknown whether he ever connected directly with Manziel to apologize on a personal level. Regardless of whether an apology is ever issued or accepted, Judge Lee’s actions are viewed as inappropriate at best and unethical at worst.
Judge Lee has been a municipal court judge for 25 years, since 1987. This is not the case of a young upstart who hasn’t learned the ropes yet and simply doesn’t know any better. Instead, the incident serves as an example of how even the most seasoned professionals can make serious missteps when it comes to social media discovery.
Although this specific incident is not linked to a court case (other than a traffic violation), it’s a great example of how one ill-timed comment can drastically impact litigation. During social media discovery, your online life is subject to public scrutiny and an impulsive, innocent online act can reflect poorly on you down the road. Proceed to your Facebook page with caution.
(photo courtesy of aggieathletics.com)
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With the advent of social media, attorneys are facing several potential game-changers. How will the impact of Facebook, Twitter, and other social media sites impact law as a whole? What kind of role, if any, might social media play for attorneys and their clients?
Current Events
The attorneys for George Zimmerman, the man charged in the Florida death of young Trayvon Martin in February, have launched a defense strategy that includes Facebook and Twitter, plus a website and an official blog. The blog states that it was created in order to dispel rumors and disseminate correct information, while simultaneously soliciting donations for his legal defense team. These platforms create a forum for communication with Zimmerman’s attorneys, as well as a place for supporters to share their voices.
When Zimmerman was taken into police custody, the news first broke via his defense team’s account on Twitter (@GZLegalCase). Within hours, the news was viral. These tweets are official and accurate, proactively nipping uncontrolled rumors in the bud.
[Photo Credit: Gary W. Green/Orlando Sentinel/AP]
Growing Concerns
The official Zimmerman legal defense team blog includes the disclaimer: "We feel it would be irresponsible to ignore the robust online conversation, and we feel equally as strong about establishing a professional, responsible, and ethical approach to new media."
This statement may be intended to explain the purpose behind the blog and other social media, should the attorneys feel the need to explain at all. However, all the explanations in the world don’t change the fact that a social media campaign runs a definite risk of tainting the neutrality of any potential juror pool.
Every state bar has publicity rules. In Florida, the rule banning any comments made by attorneys that could be widely distributed was written back in 1994. As such, it does not address social media specifically. Prosecutors in the Zimmerman case are keeping an eye on the social media campaign in case there are any attempts to influence either potential jurors or witnesses.
An Impartial Jury
In Florida, jurors chosen for trials are given specific instructions that ban electronic communication, including social media. However, these limitations are intended only for the duration of the trial. Currently, there are no existing regulations regarding the use of social media prior to jury selection.
Although jurors have always had access to the media prior to trial, the unparalleled accessibility of social media raises new concerns. Zimmerman's defense team explains in a blog post that their online presence is not intended to comment on any evidence. And yet, anyone reading the site will be exposed to unregulated and biased information from the point of view of the defense. Additionally, social media encourages strangers to share their comments and opinions, which may further bias any viewer.
Going Forward
Nicole Black, the vice president of MyCaseInc.com, wrote a book called "Social Media for Lawyers:The Next Frontier," specifically addressing the future potential of social media for attorneys. Regarding Zimmerman’s case, she says: "The social media sites are a way for Zimmerman's defense team to control the message." She feels new technology does not change the current gag rules. Instead, the pretrial conduct is the core issue. Regardless of social media, attorneys cannot discuss any case particulars pre-trial without risking contempt.
New precedents are being set right now. Social media is indeed the wave of the legal future. Or, as Zimmerman’s defense team puts it, the use of social media by attorneys "will inevitably become a standard part of the legal process."
e-Discovery in a New World:
The Ethical Implications of Social Media
Social Media's Explosive Growth
In December 2011, Facebook had over 800 million active users. By the end of 2012, they'll have over a billion. Twitter is estimated to have around 140 million active users, with growth to 250 million expected by year-end.
With such a rapid incline in the popularity of these new technologies, social media discovery has become a more frequent topic in the world of e-discovery - and along with that come a number of ethical questions.
Ethical Use of Social Media Data
Lawyers have been mining for data since the profession began - that's nothing new. However, the ease with which information can now be gathered through social media discovery is uncharted territory, as are the methods that can be used to access this information.
Has easy access blurred the line between acceptable and invasive discovery tactics? Where is the ethical boundary?
Even the courts are grappling with this issue. There are judges who have ruled that a private Facebook profile, which can be accessed only by other Facebook members to whom one has given permission, bears a reasonable right to privacy and is exempt from social media discovery. On the other hand, some judges have ruled that such use is fair game, since these social media platforms are part of the Internet, and the Internet is public space.
Our newest whitepaper, "Ethical Implications of Social Media Discovery," examines issues that legal professionals should consider when it comes to ethics and social media, including:
- Admissable Use and Facebook
- Social Media as Surveillance
- Social Media Discovery Precedent Cases
Learn more about the current state of ethics in social media. To obtain your FREE copy of our whitepaper, please click here.
Getting terminated from a job is never fun, even if the job is horrible. Typically dismissals happen over routine events such as an employee constantly being late or not doing the job well enough. But there are cases where employees have lost their jobs over crazy (and even funny) circumstances.
We're now hearing about people getting fired over Facebook or even wearing a certain colored shirt! It seems we've seen more unusual termination cases recently so we thought we'd highlight six that caught our attention:
Recently, several staffers at a Florida law firm found themselves in a predicament when they were fired for wearing orange shirts. ABA Journal talked about it and the employees say they all wore orange so they could find each other in a group after work during Happy Hour. One commenter said the manager was probably a Seminole fan and not a big Gator fan.
Jeffrey Cox, a lawyer in Indiana, was fired from his position during the heated union battles in Wisconsin after he told riot police in Wisconsin to use "live fire," and other controversial commentary. Of course, his profile was set to public and his tweets could be easily found, as the blog Going Paperless wrote about. Remember: think before you tweet!
Another employee termination story that grabbed headlines (and was also because of Twitter) was the case of Connor Riley getting fired immediately after being offered a job with Cisco. She went to her Twitter to tweet about the job offer with some added snark of a "fatty paycheck," and hating the work. Of course, Cisco happens to be a tech company so they monitored Twitter, saw her tweet and she immediately found herself jobless again.
The Next Web reported on the story of a woman, Vicki Walker, being terminated from her job as an accountant in New Zealand after she constantly wrote her emails and messages in all caps, bright red font, and usually in bold. However, The Employment Relations Authority found that Walker was wrongfully fired and her employer had to pay a hefty fine. Still, not writing in all caps with bold and bright font should probably be a unwritten rule in the work place.
Marion County Juvenile Magistrate Danielle Gregory in Indianapolis, Indiana found herself fired after texting while hearing cases, according to local Indiana's WTHR. Smartphones and camera phones are banned in the courtroom, but that didn't stop Gregory from texting about court hearings and she even was texting a married male co-worker while on the clock.
Another case of a Facebook firing occurred when a juror in a British court was asking for help on a case on her Facebook page, as reported by The Telegraph. The court was given an anonymous tip about her Facebook mishap and the woman was immediately removed from the jury. Ouch!
It goes without saying that in the professional world, common sense should rule when it comes to knowing what's right and wrong. But as you can see, people are not always predictable creatures and as such, we'll always have interesting employment termination cases.
The popularity of Social Media and e-discovery are both at an all time high. According to insidecounsel.com, Americans are spending 1/5 of their time online using social medial sites like Facebook or Twitter. These online platforms have now replaced email as the preferred method of communication. Also, nearly 80% of the Fortune 100 companies are using some form of social networking to market their products and reach customers and build relationships.
Even though there is tremendous value in social media marketing for companies, there is also risk. These ten simple issues we raise will give you something to consider as you map out your company's social media policies:
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Chatting about the company:
Do not allow your employees to discuss sensitive business related content online. It’s risky. If your company is involved in a sensitive deal (or litigation), then giving away any information may cause the deal to bust - or you may hear about it in your court proceedings.
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Know the law:
Often companies have attempted to bring information they’ve acquired online, yet the laws concerning social media create new headaches, and many are yet to be developed. Refer to Federal Rules of a Civil Procedure for best practices of e-discovery.
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Early Detection:
Having an e-discovery auditor is an excellent way to foresee future problems BEFORE they develop (such as an employee who “surfs the net” and loiters on social media sites or “friends” fellow problem co-workers). An auditor will help you address potentially damaging rumors or concerns before they get out of hand.
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Social Media Agreement:
In an effort to protect your company’s interests, why not have a signed agreement with employees to limit what they say about he company publicly (online and offline)? “You can’t do that!” you may think. Are you sure? Why not? All company data, and activity within the work “space” may be considered confidential. It’s worth considering.
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Its Simply Different From Paper:
Electronic data isn’t the same as paper data. It is untouchable, invisible, yet it’s there. Metadata stores the date, time and other info and can be crucial in proving your case. It can't be easily shredded or discarded like paper. Know your company devices and develop a data storage and management plan.
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Get a 2nd (or 3rd) Opinion:
Make sure you are constantly questioning your legal team about evolving social media policies and cases. As you know, this is a world that is literally changing on a daily basis. You need to make sure you have a team of experts both within and outside your company who you can turn to for advice or guidance at any given time. It's well worth the investment.
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Take It Seriously:
Just because something was written in cyber space, doesn’t mean it is not important or valid. Using a social media platform opens the user to a broad audience. When utilizing social media all employees should be aware of who could be potentially reading their posts. If the employee makes comments in a post or article that could be potentially damaging or used against them or the company in the future, it could spell trouble.
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Multiple Electronic Devices:
Devices such as smart phones, tablets, or email accounts all now can be used for social media activities – and can also contain metadata. Previously, access to this info was not always legally (or technically) readily available, but now it can potentially help (or hurt) your case.
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New Federal Laws:
We now have laws that allow the use and disclosure of social media e-discovery information and how it can be used in court. Make sure you are familiar with the latest rulings.
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Find the Right Partner:
Taking on the task of e-discovery in the new social media world can seem like a monstrous job, but there are firms (such as TERIS) who specialize in this field. We're happy to provide a no-obligation initial consultation to help you evaluate your current social media e-discovery program and determine what steps you need to protect yourself for future developments.
As we gear up for 2012, its "out with the old and in with the new" or in the case of eDiscoveries, analyzing what worked well this year and carrying them over into the new year. Here is an attempt at predicting seven top eDiscovery trends in litigation and technological advances for 2012.
1. Social Media is here to stay.
There has been a substantial increase in electronically stored information (ESI) over the past few years. New varieties have emerged recently, such as cloud context, mobile to mobile communication, loose files, social media, structured files etc. More and more organizations are noticing that these types of ESI trumph file sharing through emails. Now this news can be a bit disheartening to companies that are afraid of change, but when dealing with eDiscovery requests it predicted that the social media trend shows no signs of fading.
2. Cost Shifting impacts the "American Rule."
For decades the "American Rule" stated that parties need to pay for their own production costs. Well, now more and more courts are considering eDiscovery vendors as the "21st century equivalent of making copies." It is predicted that in 2012 we will see an increasing amount of courts awarding winning parties their eDiscovery cost.
3. No more Data Hoarding!
Storing tons of unmanaged and unsupervised ESI has become increasingly dangerous when dealing with litigation risk. For organizations that have never or have rarely deleted files, cleaning up the digital home is important in minimizing liability.
4. Risk Assessment is a key component of eDiscoveries
With the advancement in software technologies, it has been more important for counsel manage their risk by deciding the various error/precision rates there could be. Software technologies have helped with statistical insight, allowing counsel to manage their risk and reward balance.
5. Expand to an International Mindset
International markets have begun to develop quickly and in some cases they are surpassing the U.S. Shifting to a more global way of practicing and thinking, particularly with regulatory compliance driven cases, will only benefit attorneys.
6. There will be a continued Maturation of the eDiscovery process
In 2012, Best Practices involving the corporate process will include regular status update meetings; managed time lines and progress; identifiable workflow and production requirements. When dealing with technology, mature organizations will continue to utilize central legal sources to support the discovery process instead of the standard informal management of cases. Numerous advantages to these processes will include a better system to manage the production of work.
7. Acceptance of Technology Assisted Review (TAR) continues to grow
Next year is predicted as being a pivotal year for TAR. Contrary to what the opposition thinks, TAR has proved to not only reduce costs, but yields more accurate reviews over the manual review with much less effort. Even though skeptics say it may not be legally defensible, it seems that it drastically aides in alleviating workflow with very little effort.
It’s no secret that social media sites, such as Facebook, Twitter and others have exploded in popularity in recent years. Almost everyone that uses the Internet uses social media in some way, whether to keep in touch with friends or simply find out the latest trends in celebrity news.
Even businesses have started using it recently to promote their products and services, and why not? It’s extremely cost effective if not free, and since almost everyone uses it, it’s a great way to get the word out about the masses. You’ll find everyone from your local ice cream parlor to you car salesmen to your hairdresser using these sites to advertise specials, give discounts and just keep in touch with their customers.
And now, you can even use these tools to find legal advice. Corporate businesses such as law firms, financial advisors and other professionals have been using LinkedIn for social networking needs for a while now, but not really to market services, more to stay in touch with colleagues, or others within the industry to find out about job prospects or professional advancement.
It’s only recently that law firms have been offering service descriptions and in some cases, even legal advice on online sites such as Facebook. While you probably aren’t going to get detailed legal advice for free on a Facebook wall, some law firms are taking the risk in encouraging some inquiries as a way to drum up business for their firms. Will this extend to eDiscovery advice as well? Time will tell.
As some young lawyers say, why not? Other businesses do it, and it works out well. If you can find a restaurant or dry cleaner using these sites, why can’t you find an attorney? Or eDiscovery provider? It’s no secret that traditional methods of advertising are going downhill. Newspapers are slowly going out of business one by one and in this digital age, you’d be hard pressed to find anyone who still uses the Yellow Pages to find businesses and services when a Google search takes all of a few seconds. So is there any harm in using social media sites for advertising legal services?
It’s still too early to tell, but many firms don’t think so. Of course you’re going to be limited in the amount of free advice you can get, just as you always have been, but these firms have found that Facebook and other sites are the future of advertising and they are taking advantage of it.
Social media is the wave of the future, and most recently businesses have jumped on the social media bandwagon. For the most part it works out well. In some cases, not so much.
Many people think that they can control what is said on the Internet by setting high privacy settings to the accounts they are using to post information. Or they believe that once they’ve deleted something that it is gone forever.
Nothing could be further from the truth. Once something is posted on the Internet, it is only as private as those who can see it allow it to be. So unless you are absolutely sure that every single person on your Facebook page is someone who will not spread sensitive information, posting it is always a risk. As many of us use these sites to keep in touch with people from our past, or those who we’ve only met once or twice, this is a gamble, and depending on what you post, it may be one you can’t afford to lose. And this is an issues that will face not only individuals - but companies as well. And it has major eDiscovery and Computer Forensic implications.
As far as deletion, think about it this way. Once you’ve posted something on Twitter for example, it only takes seconds for it to be re-tweeted around the online world. That’s the whole point of Twitter. People have accounts set up to see tweets with single words or phrases, and if yours is interesting enough, it can, and probably will be re-tweeted for millions to see before you even realize you should have posted it. Hitting the delete button at this point hardly matters. You could be well on your way to losing your job, or much worse in only a few minutes.
How can you control these postings? That can be a challenge, especially in companies where someone else has access to what is posted. The best thing to do is to train employees on what is okay and what’s not, even though you think they should know.
It is extremely important for corporations to have a clear social media policy that is regularly enforced. It is also important not to allow those who aren’t completely trustworthy to have access to post, just as you wouldn’t allow them access to financial records or other sensitive information. TERIS is seeing more and more eDiscovery cases that involve social media accounts.
Social media is not going away any time soon, and it can be dangerous, but it doesn’t have to be if the right policies and procedures are set in place.
