Connecticut Business Litigation Blog : Connecticut Business Lawyer & Attorney : N. Kane Bennett : Aeton Law Partners LLP : Hartford, Middletown, Glastonbury

The impact of social media  (Facebook, Twitter, LinkedIn, etc) continues to grow in legal matters including litigation and trial.  The court decisions cut across numerous areas from employment law and personal injury to privacy rights and defamation.  Social media use has involved all the key players in lawsuits inclding judges, jurors, consultants, attorneys, reporters, and witnesses.  Lawyers are using Facebook to screen jurors; jurors are using Facebook to post about the case they are sitting on; judges are checking Facebook to make sure jurors are not using it; jury consultants are following Twitter to give advice on trial strategy to attorneys during the trial; and reporters are giving first hand accounts of trials 140 characters at a time. Bottom line: Social media is everywhere and lawyers and litigants should pay attention.

In keeping up to date on the topic, here are some new resources and  articles on social media and litigation and trial:

Vianei Lopez Robinson published an article for Texas Lawyer featured on Law Technology News that covers some recent decisions involving Facebook and the discovery of public and non-public information.  The article also discusses some of the ethical implications for attorney's "friending" litigation opponents. 

Dan Schwartz's Connecticut employment law blog continues to cover social media for employers. He recently posted a new update for employers on the newest social network site, Google +. 

Corey Dennis, who previously submitted to this blog a great summary on the basics of Connecticut civil procedure, has just published a comprehensive law review article on social media and the various laws implicated by its use. Here is a link to his article for the Massachusetts Law Review. 

 Leita Walker and Joel Schroeder published a thorough review of social media "crashing into the courtroom" in an article posted by Law.com.  The article describes several recent cases, juror misconduct with social media, attorney use of social media in discovery and cases ranging from employment to trademark matters.

A year or two ago it used to be relatively easy to track social media and the impacts on lawsuits and litigation. There were very few cases, and I posted about most of them.   Now, there are new reports and articles,  cases, and legal issues involving social media almost daily.   Just today,  a Google search of social media and trial brings up articles about the Roger Clemens perjury trial and the Casey Anthony murder trial. 

The bottom line is social media is here to stay and has clearly "crashed into the courtroom."  Attorneys, and especially trial lawyers and litigators, have to become familiar with all the legal implications as social media just might crash into one your cases.   

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Lawyers are all over Facebook and LinkedIn.  What are they doing?  If they are not marketing or social networking, they are fishing or "mining" for information about individuals and businesses.  They are looking for this information to help with lawsuits.  The business and employment trends involving social media are growing and as a result we will continue to see a variety of different lawsuits and legal issues involving some aspect of Facebook, LinkedIn, Twitter, MySpace and YouTube.  For example, read the posts yesterday by Dan Schwartz's Employment Law Blog detailing how privacy settings on Facebook permit easier production in electronic discovery and how facebook wall postings might be unavailable in discovery and deemed private. 

One of the issues lawyers will have to address when mining for data on Facebook and other sites is how to get the information.  Do you seek the material in discovery and possibly risk a judge deeming the information unavailable as private or irrelevant?  Do you just limit your search to what is publicly available?  Better yet, what about having an investigator try to "friend" your target so you can get access to the information that is not available to public searches?   If you are concerned about the ethics of this type of searching, you good instincts. 

Lawyers fishing on Facebook would be well advised to read through a few ethical opinions on the issue. Recently, the New York Bar Association issued an opinion related to ethical concerns for lawyers "fishing" for information and evidence on Facebook and LinkedIn.  The verdict?  Relying in part on a 2009 Pennsylvania Bar Association opinion, it was deemed ethical for lawyers to search for this information from public pages.  Seeking to "friend" for improper purposes, however, is more problematic and may land a lawyer in ethical trouble.  Specifically, if deception was used (by either the lawyer or a third party directed by the lawyer) to gain access as a "friend," it likely would violate the rules of professional conduct. 

Clearly, LinkedIn and Facebook are treasure troves for litigation attorneys.  However, it is a good idea to be cautious about how you access any information from these sites, especially if the information is not generally available from public searches. 

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When I started this blog, I decided I would keep an eye on lawsuits related to social networking websites as it seems this type of evidence will soon take the place of the smoking gun email of the last ten years.  The impact of social networking evidence in Connecticut business litigation will continue to grow.

My interest in social networking cases started with a Facebook lawsuit so I made a Facebook category on this blog and discussed some concerns for individuals and Connecticut businesses.  Then Twitter exploded to growth of 1000% last year, so I added a Twitter defamation case and a new category.  And now, its finally here ... I need a  LinkedIn category for LinkedIn lawsuits. 

I do not claim to know about all of the social networking lawsuits out there.  There are also some social networking sites that I ignore, like the dying MySpace.  Nevertheless, I do track cases of interest in this area.  You might also check out Megan Erickson's Social Networking blog as a resource to check on these type of claims or visit Dan Schwartz's Connecticut Employment Law Blog for resources and tips on policies for employers related to social networking.  

The LinkedIn lawsuit involves a non-compete agreement and solicitation of employees by a former employee. Molly DiBianca with The Delaware Employment Law Blog detailed the case in a post about the lawsuit filed by TEKSystems against its former employees.  Nothing strange about this type of lawsuit, only in this case, TEKSystems claims it has evidence of breach of the employment contract arising from post-termination solicitation of its employees through the LinkedIn connections of one of the defendants.  Here is a copy of the lawsuit (go to paragraph 37). 

Molly DiBianca states it is the first lawsuit she is aware of using an employee's LinkedIn account.  She may be right, as I am not aware of another case like it.  Nevertheless, I certainly expect this type of social networking evidence to be the focus of more lawsuits and it was only a matter of time for LinkedIn to be involved in a case with media attention.  In Connecticut, we had our own social networking evidence case with Facebook.  In a bullying case involving Miss Porter's School, Judge Arterton ruled that the plaintiff's postings in an expired account were relevant.   

The way I see it, this is only the beginning.  Soon enough, social networking evidence will be as significant and commonplace as email evidence.  At that point, I'll have to find something else to blog about ....

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