Reprinted with permission from the November 1, 2011 issue of The Recorder.
© 2011 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
By: Kevin L. Nichols
Last month I was on a panel at the Computer Forensics Show with Jack Halprin, head of eDiscovery, enterprise at Google; Eric Hunter, director of knowledge management at Bradford & Barthel; and Michael Lackey Jr., partner at Mayer Brown, which addressed the ethical concerns and challenges involving social media. Technology using new media is changing so rapidly that the courts cannot keep up. A common thread that emerged was that social media, in some form, is here to stay; however, no one is convinced that the dominant players, namely Facebook Inc., LinkedIn Inc. and Twitter Inc., will remain at the top five years from now. Some of the presentation’s key takeaways included rules and regulations, court decisions and best practices with regard to social media.
Rules and Regulations
The ABA, state bars and countless government agencies are trying desperately to implement restrictions, polices, procedures and codes of conduct to ensure that companies and law firms monitor their social media sites and their employees’ as well. For example, the Electronic Communications Privacy Act and Stored Communications Act (18 U.S.C. §§2510-2712) adds the transmission of electronic data from computers to existing government restrictions on wiretapping and disclosure of electronic communications held by third-party Internet service providers. Moreover, SEC Release No. 34-58288 outlines the liability for information posted on companies’ websites; and FINRA Regulatory Notice 10-06 requires financial services firms to monitor and maintain records on social media site usage and interactions. Companies and law firms need to be aware of these changes and can review Federal Judicial Center: Social Networking Guidelines & U.S. District Courts, N.Y. City Bar Op. No. 2010-02 (Sept. 2010), and Philadelphia Bar Op. No. 2009-02 (Mar. 2009) for more guidance on using social media in these areas.
There are currently several courts across the country grappling with social media and what is discoverable.
1. The case of Offenback v. L.M. Bowman lays the groundwork that the “scope of discovery into social media sites ‘requires the application of basic discovery principles in a novel context.’” Offenback’s finding states that “public information contained in plaintiff’s account is properly subject to limited discovery in this case.” Thus the court has the right to obtain passwords and access social media sites if there is just cause.
2. In a Central District case of Crispin v. Christian Audigier, the court quashed a subpoena for private messages by finding that the Stored Communications Act was applicable, but clearly distinguished private messages from public posts on social media sites, for which the SCA was inapplicable.
3. In Romano v. Steelcase, the court declared that social media data was “material and necessary to the defense of [the] action,” which included even deleted pages. The Romano court found that “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”
4. In EEOC v. Simply Storage Mgmt., the court required the plaintiff to produce relevant data from social media sites such as Facebook and MySpace because they were not considered private communications, which expanded the discovery scope from “communications that directly reference the matters alleged.”
These cases illustrate that the “reasonable expectation of privacy” that once existed is diminishing rapidly when individuals willfully choose to share information via social media sites. More and more information is becoming discoverable and produced as evidence. This exposure can be reduced through better practices.
In working with social media, one must use a commonsense approach and a “reasonable person” standard to operating a business or conducting personal interactions. Because many companies and firms are using these sites to interact with customers, market their products and/or services, it is vital to have standard practices, rules of conduct, policies and procedures in place.
Here are some recommendations:
1. Have clear and concise policies, with “do’s and don’ts,” and training available for your organization.
2. When at all possible, restrict use of social media sites for all employees with the exception of marketers and individuals who need to conduct investigations, e.g., for deposition preparation (but remember to include policies about the use of personal hand-held devices while on the company’s clock).
3. Include defensible legal hold and preservation polices in your organization’s governance materials.
4. Attorneys should beware of calling themselves “specialists” or embellishing their biography on the firm website (duty of candor).
5. Be careful whom you “friend,” “connect with,” or “follow.”
6. Keep client names and personal information out of blog posts and articles for privacy and confidentiality concerns.
In summary, much like rock ’n’ roll and even hip-hop, the younger generation has created a new phenomenon that has changed the world. Social media is here to stay and many companies, including law firms, do not want to be left in the dust. There are serious concerns of exposure while participating in social media; thus, participants need to proceed with caution. Attorneys have explicit guidelines and ethics to follow, and should be careful to avoid the existing pitfalls. Develop firm policies and procedures for you and your clients and remember that with social media, everyone’s checking your status.
Disclaimer: The author is not a lawyer, thus the content of this article should not be interpreted as providing legal advice.
Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting. For more information, please visit http://www.klnconsultinggroup.com.