Ethics, Social Media, and YOU
Presented to ACC, Colorado Chapter
December 4, 2013
Ed Stewart, Wheeler Trigg O’Donnell LLP
Craig May, Wheeler Trigg O’Donnell LLP
Jyll Lottner, Vail Resorts, Inc.
370 Seventeenth Street | Suite 4500 | Denver, Colorado 80202-5647 | P 303.244.1800 | F 303.244.1879 | wtotrial.com
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Social Media – Not Just For
Teenagers Anymore
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Jury Selection
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Discovery
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Employment
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Interactions With Parties, Jurors,
And Clients In The Facebook Age
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Do I Really Have To Know This?
Rule 1.1, Comment 6 instructs lawyers to “keep abreast of
changes in the law and its practice . . . .”
Rule. 1.1, Comment 5: competent handling of a matter
includes…use of methods and procedures meeting the standards of
competent practitioners
Rule 1.3, Comment 1 requires acting with “zeal and advocacy” on
client's behalf
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Or . . .VOIR “GOOGLE”
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Research – An Option?
A Right? A Duty?
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Option?
THE COURT: Are you Googling these people?
COUNSEL: Your Honor, there's no code or law that says I'm not
allowed to do that. I — any courtroom —
THE COURT: Is that what you're doing?
COUNSEL: I'm getting information on jurors — we've done it all the
time, everyone does it . . . . There's no rule . . . .
THE COURT: No, no, here is the rule. The rule is it's my courtroom
and I control it. So, therefore, my ruling is: close the laptop for the
jury selection process . . . I can't control what goes on outside of
this courtroom, but I can control what goes on inside the
courtroom.
Right?
“A party must use reasonable efforts to examine
the litigation history . . . of those jurors selected
but not empanelled . . . To facilitate this search,
the trial courts are directed to ensure the parties
have opportunity to make a timely search prior to
the jury being empaneled . . .” Johnson v.
McCullough MD (Supreme Court of Missouri)
Duty That Can Be Waived?
“We note that . . . the trial court suggested that
the attorneys run jurors’ litigation histories
electronically before the jury commenced
deliberation . . . Given this set of facts, we cannot
say the trial court abused its discretion in denying
plaintiff’s motion for a new trial.” Tricam
Industries v. Coba, (Florida Court of Appeals,
2012)
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To Google or Not to Google During
Voir Dire
Pros:
 If court expressly allows, Rule 1.1 may impose duty to do so
 May expose biases, grounds for cause, evasive/untruthful voir dire responses
 More information almost never harmful
Cons:
 Time constraints
 Distraction from effective “traditional” voir dire
 False positives
 Risks offending jurors if confronted with their social media postings
Either way ASK (Sluss v. Commonwealth of Kentucky, 381 S.W.3d 215 (2012))
Where Should You Check?
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Investigating Jurors –
Ethical Challenges
Rule 3.5(d) prohibits ex parte communications with jurors during the
course of proceedings
Is social media research a “communication”?
Obtaining generally accessible information usually is not
“Friend” request by attorney or staff—or one initiated by juror—
not permitted
Search which “itself imparts to juror knowledge that he or she is
being investigated” may be a “communication”
E.g. New York City Bar Assoc. Comm. on Professional Ethics,
Opinion 2012-2
Know Your Technology!
“[I]t is an attorney’s duty to research and understand the properties
of the service or website she wishes to use for jury research in
order to avoid inadvertent communications.” (New York City Bar
Assoc. Comm. on Professional Ethics, Opinion 2012-2)
Facebook = OK to access public pages, but not to gain access
to private pages or “Friend”
Twitter = OK to read posts, but not to “follow”
LinkedIn = OK to browse anonymously without leaving
electronic footprint
NOTE: You MUST change your privacy setting to
“completely anonymous” in order to browse anonymously
Monitor During Trial?
May reveal information
withheld in voir dire that
could lead to mistrial
(e.g. are your jurors
“friends” with Plaintiff?)
May reveal juror
misconduct (e.g.
tweeting about case,
conducting research,
revealing juror
deliberations)
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Does This Really Happen?
It does in South Carolina
Branham case
9 of 12 jurors discovered to be former clients of
plaintiffs’ counsel
It happens other places too!
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Juror Conduct During Trial
“This trial is boring! I don’t know which way to go, so
I’m holding a poll. Should I vote guilty or innocent?”
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State v. Dellinger
(West Virginia Supreme Court,2010)
Juror to Defendant on Myspace during trial:
“You might not understand why you are hurting
right now but when you look back on it, it will
make perfect sense. I know it is hard but just
remember God is perfect and has the most
perfect plan for your life. Talk soon.”
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Duty to Report Juror Misconduct?
Old Rule (Code of Professional Responsibility)
Lawyer had a duty to “ . . . reveal promptly to the court improper
conduct by a venireman or a juror, or by another toward a
venireman or a juror or a member of his family, of which the
lawyer has knowledge.” DR7-108
New Rule (Rules of Professional Conduct)
No express duty
But interests underlying Rules 3.3-3.5 suggest duty to disclose,
regardless
Social Media and Witnesses
Communicating with Represented
Persons
Cannot communicate about subject matter of
representation with person represented by counsel
(Rule 4.2)
Applies even if contact initiated by the party
Advice – no “friending” witnesses who are
represented
No using an employee to friend the witness for you
Avoid "pretexting"
Rule 8.4 expressly prohibits lawyers violating
RPC through acts of another
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Communicating with
Unrepresented Persons
Risky to communicate through social media
No Pretexting
Rule 4.3 prohibits lawyers, when dealing with
unrepresented persons, from implying that
he/she is disinterested
No False Statements
Rule 4.1
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Social Media and Discovery Issues
Investigating Opposing Parties and
Third Party Witnesses
Social media can be rich source of discovery
BUT - investigation must be done ethically
Investigate Your Client
Research your client to gain important
information for litigation
Before filing suit (Rule 3.1, Meritorious Claims
and Defenses)
During suit (with or without discovery request)
Before company witness depositions (as part
of preparation)
Duty to Preserve Evidence
Rule 3.4 prohibits altering or destroying evidence
DO NOT instruct client to remove harmful
information from social media site during or in
anticipation of litigation
Can you advise the client to change privacy
settings?
What About Deactivating a
Facebook Site?
Taking down a site may result in the deletion of
the account, and all of its content
Example – plaintiff deactivated his Facebook
site during the case, resulting in its deletion 
spoliation sanctions
Can you adequately preserve all content of the
Facebook account before deactivation?
Know the technology!
Advising Client on Social Media
Advising client to use highest possible
privacy/security settings?
Advise client to “take down” material from social
media sites, while preserving relevant material for
litigation?
NOTE: client can be asked about any changes
to social media
Advise client to publish truthful, favorable
information
Obtaining Social Media in Discovery
Competing tests for compelling production
Restrictive Test - Requires showing that:
Public pages contain material contradicting claims; and
Request is narrowly tailored to seek only relevant
information
Tapp v. New York State Urban Dev. Corp., 102
A.D.3d 620 (NY 2013); Tompkins v. Detroit
Metropolitan Airport, 278 F.R.D. 387 (E.D. Michigan
2012)
Example - Picture of slip-and-fall plaintiff holding a 2-5 lb.
dog, attending a birthday party and pushing a shopping
cart not inconsistent with injury claims
Obtaining Social Media in Discovery
Permissive Test (FRCP)
Any relevant, nonprivileged information is discoverable
If in doubt, rules favor permissive discovery
Reduced expectation of privacy where circle of “friends”
is large
E.g. Higgins v. Koch Development Corp., 2013
Westlaw 3366278 (S.D. Indiana 2013); Reid v.
Ingerman Smith LLP, 2012 Westlaw 6720752 (E.D.
New York 2012)
Like a written diary, private Facebook posts are potentially
relevant to a wide range of issues, such as emotional
distress, etc..
Social Media in the Workplace
Presented by Jyll Lottner, December 2013
Legal Constraints on Employee Discipline
• Expression of political opinions
• Legal off-duty activities or “lifestyle discrimination” (e.g.,
California, Colorado, Connecticut, New York, North Dakota),
which ban discrimination based on legal off-duty conduct
• Wrongful termination in violation of public policy (arrests,
convictions, bankruptcy, workers’ comp. history)
• Whistleblowing (SOX, Dodd-Frank, Wage & Hour)
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Legal Constraints on Employee Discipline
• National Labor Relations Act - Section 7 of
the NLRA guarantees employees the right
to “engage in other concerted activities for
purpose of collective bargaining or other
mutual aid or protection”
• Applies to both union and non-union
employees
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Legal Constraints on Employee Discipline
• 2+ employees acting to address a collective concern about
terms and conditions of employment is considered protected
concerted activity.
• 1 employee acting on behalf of others, initiating, inducing or
preparing for group action, or who has discussed the matter
with co-workers, can be engaged in protected concerted
activity.
• Comments made solely by an employee related to
employment but do not arise out of, or call for activity by other
employees, are not protected concerted activity.
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Protected Activity
Actions via social media taken for the purpose of improving
working conditions such as:
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Pay
Hours
Workplace safety
Workload
Benefits
Terms of employment (i.e. supervisor conduct, work satisfaction or
dissatisfaction)
Could be deemed “protected, concerted activity”
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Protected Activity
Real life examples:
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Employee at a BMW dealership fired for Facebook posts ridiculing the
dealership for serving hot dogs during a sales event rather than more
upscale food…concerted and protected because arose from discussions
among several employees and hot dog cart could have “turned off”
customers thereby impacting the employee’s commissions
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Employees at a clothing store fired for Facebook post criticizing and
complaining about supervisor’s reaction to their complaints about working
late…concerted and protected because it was a continuation of earlier
discussions about employment conditions and was for the mutual aid and
protection of other employees
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Unprotected Activity
The following actions via social media are likely not concerted,
protected activity:
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posting secret, confidential or attorney-client privileged information
(protects company’s legitimate interests)
discussing information relating to safety of company’s product (not
related to safety of the workplace)
harassing, bullying, discriminating or retaliating
posting anything in the name of the company or in a manner that could
be reasonably attributed to, or to be on behalf of, company
posting threats of violence or similar inappropriate or unlawful conduct
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Protected Activity?
Craig May
December 1
To whom this may concern:
You know who you are – you cried and cried and cried like a little b**ch and got your f***ing way.
He’s gone. Great job, you’re the f***ing man! Pat yourself on the back you sissy. I hope things
were really that bad for you, you deserve it, you loser. Instead of crying like a little b**ch, why
don’t you try confronting the person who you feel has done you wrong? Why don’t you act like a
real man and own up to what you claim happened. Instead, you hid behind mommy and took the
chicken sh*t way! You shouldn't be allowed to hide behind mommy, no one should ever. EVER.
Stand up for yourself you f***ing crybaby! F**k you!!
Like – Comment – Share
19 people liked this.
Edward Stewart – I know; it’s bullsh*t! No way this should have gone down without some
face to face. What a joke!
December 1
Jyll Lottner – F**k you!! No more hiding allowed!!! Change it – man up!
December 1
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Protected Activity?
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What to Do?
• Do NOT assume that the content of a tweet, post on
Facebook, etc. allows the employer to take action against the
employee
• Look at whether other co-workers are involved in the
discussion; whether the discussion directly arises from an
earlier discussion; or whether the post calls co-workers to
action
• Look at the subject matter of the tweet, post, etc. and if it
could be considered concerted and protected activity
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What to Do?
• Look at whether another employees’ rights have been
violated
• Look at the tweet, post, etc. for threats of violence or
similar inappropriate or unlawful conduct
• Consider talking to the employee to work out his/her
concerns through internal procedures
• Consider whether to conduct an investigation
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