Read part one of our post on Ethan J. Wall and social media here.
It's a fact that the law follows life, says Ethan J. Wall, an intellectual property litigator at Richman Greer in Miami and a Florida Rising Stars listee; and given how much social media has changed lives in 2011, no one should be shocked that it's changing the law, too.
"Even if attorneys think that social media is a fad and it's not for them they need to be mindful of it," Wall says, "because it will be relevant to their clients. This [area of law] is a bit of the Wild West."
Take defamation. In 2009, grunge icon Courtney Love allegedly made disparaging comments about fashion designer Dawn Simorangkir on her Twitter account. "She was sued for defamation and libel and slander," says Wall. Instead of the case setting legal precedent, though, Love settled in March. She also shut down her Twitter account.
There's fraud, too. "If you're posting your résumé on LinkedIn and you're dishonest about what your background is," Wall says. "Or you've got clients involved in real estate posting information about a particular listing that turns out to be untrue, that might create individual legal liability."
And employment litigators take heed. Wall brings up a case recently settled by the National Labor Relations Board on behalf of a woman who claimed she was wrongfully terminated by a Connecticut ambulance company because she made negative comments about her boss on Facebook. "The case was the first by the National Labor Relations Board to assert that employers break the law by disciplining workers who post criticisms on social-networking Web sites," wrote The New York Times. "If your company has a social media policy that prohibits or restricts all types of communication--including protected work communications--then you may very well have a faulty policy," says Wall.
Social media is also changing discovery.
"Social media sites look like plunder to attorneys," says Wall. "They're online treasure chests of information about your cases. So attorneys rightfully want to find out this information."
Requests for productions, interrogatories and subpoenas, he says, can be directed toward social media evidence. "As an opposing partying you have your traditional means of discovery--like asking them for all social media messages that concern a particular topic that's narrowly tailored to the case, and can use it in your proceedings--as long as you can overcome a lot of the evidentiary hurdles such as hearsay, authenticity, etc."
But preservation is another challenge. "It is the nature of social media that it can be changed at the drop of a hat," says Wall. "So when attorneys draft litigation hold letters, or are monitoring their own client's use, they need to know what type of information might be on some key player's, or relevant person's, social media sites, and begin to address those issues of preservation."
Of course, ethical rules still apply in the Wild West, he warns. "If someone's social media site is public, it's just like any other website; attorneys can go on there and grab information. But what we're finding is that when attorneys are looking at nonparties, that they are trying to gain access to private pages to gain information, and that's where a lot of these ethical issues arise."
And what about order in the court? Wall cites the 2009 case Diehl v. Stoam Holdings in which a juror Tweeted while the case was still proceeding. The juror wrote that he wasn't doing much that day besides the fact that he "just gave away TWELVE MILLION DOLLARS of someone else's money!" He then instructed his Twitter followers not to buy products from Stoam because the company might "cease to exist." "All this happened prior to the jury reaching the verdict," says Wall. "So the defense counsel learned about this and filed a mistrial."
The legal community has taken notice. In early 2010, the Judicial Conference of the United States updated its traditional rules that ban jurors from talking about an on-going case outside of deliberations; they added provisions addressing email, cell phones, social media sites, text messages and Internet research, according to the ABA.
"Attorneys should be aware of these types of issues," says Wall, whether that's asking for jury instructions on social media use, or, he adds, "just being mindful that their clients aren't sending text messages or social media messages to witnesses on the stand." He pauses. "Yes, that's happened before as well."