Magistrate Mix`s Presentation

An Employment
Lawyer’s Guide
to Friending
d
Social Media
Kristen L. Mix, U.S. Magistrate
g
Judge
g (D.
( Colo.))
October 20, 2011
What Are Social Media?
Interactive websites that:
connect users based on common interests
AND
allow users to personalize individual websites
Examples?
p
•
•
•
•
•
•
•
Facebook
MySpace
Xanga
LinkedIn
Plaxo
YouTube
Twitter
What is
?
• World’s most popular social-networking site
• Users create online profiles
• Users share information through status updates,
direct messages to other users,
users wall posts or chat
features
• Users mayy also share p
pictures and videos
• Users can determine who can view their
information through privacy settings
What is
?
• A service
i which
hi h allows
ll
users tto share
h
messages
of 140 characters or less
• Messages are viewable through the internet or
mobile phones
• Users
Users’ accounts may be public or private
Access to Social Media Information
• Users control access
(more or less) through
privacy settings
• Are you a “friend”
of a user?
Storage of Social Media Information
WHOSE SERVER HAS IT?
User s ?
User’s
Friend’s ?
The Website Owner’s ?
Sources of Information on Social Media
• 1. The user
• 2. Someone who has access to the user’s page
• 3. The website owner
Evidentiary Issues
• Relevance
R l
• Authenticity
• Hearsay
• Original writing
• Probative value vs. unfair prejudice
p j
Common Legal
g Issues
• Do the ESI rules apply
pp y to information
found on social media?
Common Legal
g Issues (cont.)
(
)
• Is the information within a party’s
p
y
possession, custody or control?
Common Legal
g Issues (cont.)
(
)
• What is the scope
p of a party’s
p
y duty
y to
preserve social media content?
Common Legal
g Issues (cont.)
(
)
•Privacy
Common Legal
g Issues (cont.)
(
)
•Relevance
Common Legal
g Issues (cont.)
(
)
•Fourth Amendment
Common Legal
g Issues (cont.)
(
)
•First Amendment
Common Legal Issues (cont.)
• Stored
St
dC
Communications
i ti
A
Actt
• Electronic Communications
Privacy Act
Cost-Shifting
g in Discoveryy Disputes
p
• Marginal utility approach
• Rowe Entertainment approach
• Zubulake approach
The Canadian
Approach to
Discovery of Social Media
• “Facebook is not used as a means by which
account holders carry on monologues with
themselves.”
Find them on
The Adapting
p g Judiciaryy
“If I’m applying the First
A
Amendment,
d
I have
h
to apply
l iit to
a world where there’s an
Internet,, and there’s Facebook,,
and there are movies like . . . The
Social Network, which I couldn’t
even understand.
understand ”
- Justice Stephen Breyer, November
16, 2010 at Vanderbilt Law School
Jurors on Trial
Source: Indianapolis Star, A1, March 22, 2011
Juryy Instructions
• “you must not conduct any independent research”
you should not consult dictionaries or reference
• “you
materials, search the internet, websites, blogs, or
use any other electronic tools”
• “you may not communicate with anyone about the
case on your cell phone, through e-mail, Blackberry,
iPhone text messaging
iPhone,
messaging, or on Twitter . . . Or by way
of any other social networking websites, including
Facebook, My Space, LinkedIn, and YouTube”
Proposed Model Jury Instructions, prepared by the Judicial Conference Committee on Court
Administration and Case Management, December 2009
Mistrial byy
“[A] juror in a big federal drug trial in Florida
admitted to the judge that he had been doing
research on the case on the Internet, directly
violating the judge’s
judge s instructions and centuries of
legal rules. But when the judge questioned the rest
of the jury, he got an even bigger shock. Eight
other jurors had been doing the same thing.”
- “As Jurors Turn to Web, Mistrials Are Popping Up,” New
York Times,
Times March 18
18, 2009
Tweeting
g Jurors
“Guilty. Guilty. I say no. I will not
be swayed. Practicing for jury
duty.”
- Tweet by Juror No. 269 in the Chandra
Levy murder trial
Tweeting
g Jurors
“oh and nobody buy Stoan. Its bad mojo
and they’ll
they ll probably cease to Exist, now
that their wallet is 12m lighter.”
“I just gave away TWELVE MILLION
DOLLARS of somebody else’s money.”
- Tweets
T
t by
b “J
“Juror Johnathan”
J h th ” during
d i Arkansas
A k
ttrial
i l