The Social Network Your Best Friend for Investigating and Defending Claims

The Social Network
Your Best Friend for Investigating and
Defending Claims
Erik P. Crep
Wicker, Smith, O’Hara, McCoy & Ford, P.A.
Miami, Florida
What is “Social Media”?
 Facebook
 Dating Site
 Twitter
 Vine
 Instagram
 Keek
 MySpace
 YouTube
 Photo Sharing
-- Shutterfly
-- Flickr
 Business Networking
-- LinkedIn
 Blogs/Online Journals
Social Media Sites
Social Media in Litigation
Social Media is relevant and significant in many area of
- Medical Malpractice
- Errors and Omissions Cases
- Employment Litigation
- Construction
- Other Professional Lines (financial lines)
- Other – transportation; family law; bankruptcy;
debt collection; personal injury defense
Uses of Social Media in
Defending Claims
Social Media Sites Contain a HUGE amount of
useful Information:
 Photographs (vacation/mobile updates)
 Videos
 Admissions by Plaintiffs
 Comments on Plaintiffs’ activities /life style
 Locate other fact witnesses
 Relationship status
 Impeachment Material
 Information on Expert Witnesses
Created in 2004 by Harvard
student Mark Zuckerberg and
3 friends – in a dorm room
9 years later, more than 1 billion
active users world-wide
As of December 31, 2012, over
680 million users use
Facebook mobile products
 Average Facebook user/Plaintiff
-- has over 130 friends
-- 15 hours & 33 minutes on Facebook per month
-- creates 90 pieces of content per month
• Facebook/Mobile Devices
-- 500 million access Facebook from mobile device
When searching for information on Plaintiff, your insured, a
witness or an expert:
• Use first names, last names, maiden names, middle
names, nick names
• Narrow your search using Plaintiff(s)’ birthdates, cities
they lived in, known employers, etc.
• Search other individuals who may live in Plaintiff(s)’
household – spouse, children, siblings, friends, etc.
• Search by email address and phone number (ex. Email
address in medical records/history/incident reports)
Social Media Search Tips
 Locate Plaintiff’s Accounts
 Print off all public pages
 Screen shots
 Save digital photographs
(Mobile Uploads can provide
GPS data)
 Create screen shots
 Catalogue “Friends”
 Create tickler system to check
for updates
Do Not “Friend” a Judge
 Florida’s Appellate Court –
4th DCA- said it violated
Florida’s Judicial Ethics
 “Judges do not have the
unfettered social freedoms
of a teenager”
 Conveys to others the
impression that these
lawyer “friends” are in a
special position to
influence the judge
Do Not “Friend” a Plaintiff
• Never send a “friend”
request to a Plaintiff
• Never “friend” request a
witness or opposing expert
• Never have
friends/family/staff do it
Comments to Pictures
Saving Color Photographs
 Only allows for 140 characters
 Pictures & Videos
 Tweeters share commentary on events, what they are doing
that very moment; court cases, news stories, politics, how
they are feeling, etc.
 550 million registered users
 Over 340 million tweets daily
 Average user tweets 307 times per year
 43% of users use phone to tweet
Publicly visible by default
People Tweet Everything!
Caution – Twitter Story
Potential Cisco Employee
Response from Cisco Manager
Twitter in Litigation:
Attorneys and consultants use Twitter to develop
profiles of jurors, including their daily activities
Such as:
• Juror posting on Twitter might give info about how
he may decide a case;
• Whether or not the juror has tweeted about similar
court cases;
• How does a juror feel about attorneys trying the
case? Paralegal? The Parties?
What Have Jurors
 Defendant looks like a murderer. GUILTY. Waiting for
opening remarks.
 Guilty guilty … I will not be swayed. Practicing for jury
 So, Jonathan, what did you do today. Oh, nothing really.
I just gave away TWELVE MILLION DOLLARS of some
else’s money!
 The lead plaintiff in the case. Since the first day of trial
has had nothing to do, so he usually falls asleep which
causes his head to bob up and down as he fights to stay
•Social Media should be accessed during voir dire
•Facebook/Twitter/Instagram/Blogs, etc. can
provide great insight into the character of
potential jurors
•1/3 of Facebook users do not have their pages set
to private
Social Media and Jury
During the nearly two-month
Casey Anthony trial, trial
consultants would leave
the courtroom at the end
of each day and head for
their computers. There, a
team would monitor
blogs, Facebook, Twitter
to find out what was
annoying people about
Anthony – and tailor their
defense accordingly.
Discovery Issues and Strategy
Timing of online investigation –> the sooner the better
 Locate and go to Plaintiff’s Facebook, Linkedin, Twitter
 Print off all public pages
 Print screen [ctrl + alt + print screen]
 Save all photographs
 Catalogue names and contact information for “Friends”
----------- Some Plaintiffs’ attorneys instruct clients to delete
photographs/postings harmful to case
-- Therefore, act fast. ASAP. Before Plaintiff retains
an attorney.
Is Social Media Discoverable
Romano vs. Steelcase, 907 N.Y.S. 2d 610 (Suffolk Co., 2010)
• Defense allowed to discovery information/pictures on Facebook –
including all deleted or archived information
• No reasonable expectation of privacy for information posted on
• “privacy is no longer grounded in reasonable expectations, but
rather in some theoretical protocol better known as wishful thinking”
Zimmerman vs. Weis Markets, 2011 WL 2065410 (Northumberland
Co. Com.Pl 2011)
• Step further – required Plaintiff to provide user names & passwords
to defense counsel to investigate [not the norm.]
• However – must be relevant and must have factual predicate
Social Media
Holter vs. Wells Fargo, 2011 WL 797144 (D. Minn. May 4, 2011)
Social networking discoverable
No login/password and no authorization
Plaintiff’s attorney review and produce documents and picture
Just as the Court would not give a party the ability to come into a party’s home
and peruse computers to search for possible relevant information, Court did
not allow Defendant to review social networking content to determine what it
deemed relevant.
Barnes vs. CUS Nashville, 2010 WL 2265668 (M.D. Tenn June 3,
Judge ordered that he (the Judge) would create Facebook page and require
Plaintiff to “friend” him.
Judge would then examine Plaintiff’s Facebook – including photographs – to
determine what was relevant
Predicate Predicate Predicate!!!
Caraballo vs. City of New York, Index No. 10 103477-09 (NY Sup.
Ct. March 4, 2011)
• No predicate = no records/pictures from Facebook or Twitter
• Digital fishing expeditions are no less objectionable than their
analog antecedents
Habib vs. 116 Central Park, Index No. 108434-09 (NY Sup. Ct.
March 2, 2011)
• No predicate why 80 year old Plaintiff would comment on
claim/injury on social networking
Bavids vs. Novartis Pharm., 2:06-00431 (EDNY Feb. 24, 2012)
• Must be factual predicate, like an individual’s public posting, to
obtain information on individual’s private page
How to Obtain Social Network
Subpoena to Facebook/Twitter
- Not permitted to subpoena to social
networking websites in civil lawsuit under Stored
Communications Act, 18 U.S.C. § 2701, et. Seq.
Crispin vs. Christial, 717 F.Supp.2d 965 (C.D. Cal 2010)
Consent/Authorization from Plaintiff
Plaintiff produce all “private”
photographs or other information
Obtain Plaintiff’s login and password
What About Spoliation
Against Plaintiff?
Gatto vs. United Airlines, 10-cv-1090 (Dist. NJ April 2, 2013)
 Plaintiff brought negligence action – against airline
 Defendant
airline provided authorizations to
Plaintiff for Facebook records; eventually Plaintiff
 However,
account – which was deleted 14 days later by
 Defendant argued prejudice in its defense due to
the destruction of evidence
Gatto vs. United Airlines continued
 Defendant sought sanctions for spoliation of
 Court agreed – deactivation constituted spoliation
 Facebook relevant for damages
 Reasonably foreseeable that Plaintiff’s Facebook
would be sought in discovery. Plus, Defendant
requested information 5 months before account
 Court   Adverse Inference against Plaintiff
Steps to Obtain Information
 Sent letter to Plaintiff asap, placing them on notice
of intent to obtain social media materials
 But … consider timing
 Advise that sanctions will be pursued if materials
are deleted
 Once in litigation, send a request for production
and interrogatories
 Send authorization to obtain records directly from
social media site
 If Plaintiff fails to preserve data, seek sanctions
Actual Posts – No Self-Control
Twitter/Facebook Destroy
Plaintiff’s Case
 Plaintiff fracture arm and scar
to forehead in MVA (liability
case) – sought over $1
 Tweet – starting “to love my
scar” and “able to carry, with
previously broken arm, a
 Posted photo of herself with
large purse
 Verdict for $142k
Actual Post from Case
 Alleges could not fully
extend her right arm
 Alleges that she was
limited in her daily
 Alleges she didn’t like
being the center of
attention due to right arm
injury and selfconsciousness
 Made unreasonable
demand – but – 3 days
before trial, this was
Actual Post from Case
 Plaintiff on left
 President of small
 Claimed she was
depressed – largely
due to her inability to
shake hands
Really? Really? Really?
 Actual Plaintiff in a
 Claims to be depressed
and self-conscious
about her body …
 Posted: “For the first
time, I can honestly say
my life is perfect.”
Oops …
Social Media Conclusion
 Fertile source of information re: Plaintiffs, witnesses,
experts, jurors and/or potential jurors
 Predicate Predicate Predicate
 It is unlikely that court decisions requiring
disclosure will deter users from posting on these
networks – people will still post
 Social media will continue to increase popularity
 Defense attorneys and claims professionals must
use this media as a resource
“What To Do”
• Sample Interrogatories (Exhibit “A”)
• Sample Request for Production (Exhibit “B”)
• Sample Authorization/Release to Facebook
(Exhibit “C”)
Questions? Comments?
Erik P. Crep, Esquire
Wicker, Smith, O’Hara, McCoy & Ford, P.A.
2800 Ponce de Leon Blvd, Suite 800
Coral Gables (Miami), FL 33134
(305) 448-3939
[email protected]
Electronic Discovery
Electronic Discovery
 Nearly 95% of all information is stored electronically
 More than 70% electronic information never printed
 North American businesses = 3.25 trillion e-mail per year &
create more than 90% of their information in digital form
 iPhone Storage Capability
- 16 GB - - 5,500 photographs
- 32 GB - - 11,500 photographs
- 64 GB - - 23,500 photographs
• More cell phones in world than toothbrushes
Hard Drive Capacity
 1 Gigabyte (GB) = 30
bankers boxes
 1 Terabyte = 10 trailers of
 10 Terabytes = Printed
collection of the U.S. Library
of Congress
Goal of Forensic
Capture ALL the data from the beginning sector of
the hard drive to the last sector
“Data About Data”
(a) System Data
- like a card catalogue in a library
- computer file itself
- ex. Scanemployer.doc
- tells where file is located on the hard drive
(b) Metadata
- Similar to table of contents/index
- allows you to do keyword search
Forensic Information
 Where originated
 When taken
 Altered?
 GPS location of where pic
 File email was located in
- “dangerous docs”
- “bad tests/results”
• Metadata
- when changes made
- who made changes
- track changes
-drafts of documents
 Altered?
Every document has details
- Creator of the file
- Date of creation
- Storage Location
- Persons who had access to it
- Persons who viewed, copied,
edited, forwarded or otherwise
interacted with the file over its
- When, why and by whom any
part of the document (including
metadata) was modified or
A Deleted File/Picture
is not really Erased or Deleted
• Hard Drive are file cabinets
• Deleted files are placed in
the empty area of the file
• Depending on the amount of
data that is saved, eventually
the deleted file will be
Electronic Data – Sensitive to
Real Email
Altered Email
Preservation of Electronic
General rule  Once a
party reasonably
anticipates litigation, it
must suspend its
routine document
retention and
destruction policy and
put in place a
“litigation hold” to
ensure preservation
of relevant
What to do when served with a
“Litigation Hold”
 Meet with client – become familiar with client’s document
retention system and document terminology
 Identify “key players” and confirm their policies on
 Meet with IT personnel who can help with document
 Issue a thorough “litigation hold” to all employees who
may have relevant information.
What to do during a
“Litigation Hold”
 Continually communicate with client to monitor
preservation efforts
 Take possession of data or ensure data is in a safe
 Document all steps taken to preserve discoverable
Duty to Preserve Evidence
Spoliation of evidence:
… is the destruction or significant alteration of evidence or
the failure to preserve property for use as evidence in
pending or reasonably foreseeable litigation. West vs.
Goodyear Tire & Rubber Co.,, 167 F.3d 776 (2nd Cir.
Destruction of Evidence
SonoMedica, Inc. vs. Mohler, 2009 WL
2371507 (E.D.VA July 28, 2009)
• 2 computers were subpoenaed for
examination and the Court ordered
parties to turn over computer “without
it being touched except to turn it off”. A
forensic expert discovered that before
turning over the computers “22,603
files/folders had been affected and 556
were manually deleted. Court
sanctioned party for $108,215.15.
Zubulake vs. USB Warburg
• $29 million verdict – spoliation of
evidence against USB because the
company destroyed email messages
that were requested
Questions? Comments?
Erik P. Crep, Esquire
Wicker, Smith, O’Hara, McCoy & Ford, P.A.
2800 Ponce de Leon Blvd, Suite 800
Coral Gables (Miami), FL 33134
(305) 448-3939
[email protected]