social media ethics and judicial holds - data security for law firms - greensboro bar association
TRANSCRIPT
HOW TO ADVISE CLIENTS AND MANAGE JUDICIAL HOLDS AND DISCOVERY WITH SOCIAL MEDIA
Chris Homer [email protected] | @chrishomer24
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CHRIS HOMER
Legal Marketing Expert
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LAW FIRM MARKETING @
Torch Award for Marketplace
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OUR BOOKIncludes Chapter Contributions from: AVVO Clio Fujitsu
Complimentary Book
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COMPETENCE
ABA Model Rule 1.1 [8]
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
2005
Online = Website
20177
Online = Presence
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MILLENNIALS
• 18-33 years old now
• Yes, they are adults and many are middle managers with great
income
• They grew up with mobile devices not phones
• On average send over 100 texts a day
• 2/3 rather text than speak to someone on the phone
• They knew Amazon the retailer before Amazon the river
• 75% are on social media (from a mobile device)
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GEN Z
• <20 years old…. but
• Largest population in U.S.
• Prefer Images vs. text (snapchat, instagram, video)
• Can work multiple screens at once (iPad, computer, TV,
smartphone, games) and have only seen touchscreens
• Learn as much from YouTube as school
• Low attention span - “Bite-size media”
• Leaving Facebook??
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THE INTERNET MINUTE• 701,389 logins on Facebook
• 69,444 hours watched on Netflix
• 150 million emails sent
• 527,760 photos shared on Snapchat
• 347,222 tweets on Twitter
• 28,194 new posts to Instagram
• 2.4 million search queries on Google
• 972,222 Tinder swipes
• 2.78 million video views on Youtube
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SOCIAL MEDIA COMPETENCE
Are you confident that you, the lawyer, can adequately
provide guidance and advice to your clients about the
exposure and risks of using social media networks?
Asking people to not participate in social media is liking
asking people to not use email.
*NC 2014 Formal Opinion 5
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NC 2014 FORMAL OPINION 5
Opinion rules a lawyer must advise a civil litigation client about the legal ramifications of the client’s postings on social media as necessary to represent the client competently. The lawyer may advise the client to remove postings on social media if the removal is done in compliance with the rules and law on preservation and spoliation of evidence.
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SOCIAL NETWORKS
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SOCIAL MEDIA HAS NO JURISDICTION
• Social Media is NATIONAL • Geo-tagging
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SOCIAL MEDIA AS EVIDENCE
81% of divorce lawyers have used social media to find court-worthy evidence from various websites.
*American Academy of Matrimonial Lawyers
SOCIAL MEDIA
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• There are 1.71 Billion monthly active users on Facebook
• 1.13 Billion people log into Facebook every day
• 4.75 Billion pieces of content are shared daily
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SLIDE TITLE
• Body One • Body Two
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FACEBOOK AS EVIDENCE
• Largent v. Reed • “[o]nly the uninitiated or foolish could believe that Facebook is an online
lockbox of secrets.” • B.M. v D.M.
• “I've come a long way...I had to learn to walk all over again, like a baby. Today I danced a choreographed dance across a studio floor, who woulda thought?”
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FACEBOOK AND SPOLIATION
• Gatto v United Airlines • Adverse inference
• Lester v Allied Concrete Company • “I [heart] hot moms” t-shirt, and holding a beer can with other young
adults. • Thurmond v Bowman
• “Thurmond’s conduct in both respects is certainly a fair subject for cross-examination at trial and could result in the impeachment of her credibility.”
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• There are 310 Million monthly active users
• 44% of created accounts have never sent a Tweet
• 80% of users access Twitter via a mobile device
• A day’s worth of tweets would fill a 10 million page book
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HOW TWITTER WORKS
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“FOLLOWING”
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“FOLLOWERS”
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PRIVACY
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BOTS AND AUTO-POSTERS
• Twitter estimates that 23 million of its active users are actually bots • Tools like Hootsuite make it easy for people to send tweets and
retweet without taking any action. • Are auto-tweets admissible? Federal Rules of Evidence 901(B)(5)
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TWITTER CAN CAUSE ISSUES TOO
• Stoam Holdings • $12.6 Million verdict • “‘So, Johnathan, what did you do today?' Oh, nothing really. I just gave
away TWELVE MILLION DOLLARS of somebody else's money!” • “Oh, and nobody buy Stoam. It’s bad mojo, and they’ll probably cease
to exist, now that their wallet is $12M lighter.”
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• Instagram has more than 400 million monthly active users
• More than 80 million photos are uploaded per day
• Instagram’s monthly user base has grown from 90 million in Jan 2013, to 400 million in September 2015
Users do not need to
approve a tag to be
tagged in another users
photo.
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INSTAGRAM AS EVIDENCE
• People v K.B. • Wearing the same clothes and discarded 2
firearms • 50 Cent and Rich Kids of Instagram
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• There are 433 million users • 40% of users check LinkedIn daily • 59% of LinkedIn users don’t use
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BEWARE OF “SKILLS”
“Opinion rules that a lawyer may accept an invitation from a judge to be a "connection" on a professional networking website, and may endorse a judge. However, a lawyer may not accept a legal skill or expertise endorsement or a recommendation from a judge.”
*NC 2014 Formal Ethics Opinion 8
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LINKEDIN GROUPS
• Watch out when posting in LinkedIn Groups • Attorney client relationship • Same applies for websites such as Avvo
• 2000 Formal Ethics Opinion 3 • “…it is not a violation of the Revised Rules of Professional Conduct for a
lawyer to respond to inquiries posted on an Internet message board provided the lawyer clarifies the nature of the lawyer's relationship with the person or company making the inquiry and the limits of the information that the lawyer is providing.”
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LINKEDIN USED AS EVIDENCE
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• 100 million regular users
• 85% of users are female
• One of the fastest growing social media platforms
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SNAPCHAT
• 150 million daily active users
• 30% of daily active users are Millenials
• 9,000 Snaps are sent per second
• 35% of users actively use Snapchat because the content disappears
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SNAPCHAT AND DISCOVERY ISSUES
• Snaps last from 1-10 seconds and then are deleted. • Users have the ability to add a snap to their “Story,” which lasts 24
hours. • Users can now save Snaps to their phone and on the app.
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ONLINE VIDEO
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WATCH OUT FOR JURORS AND JUDGES
• Queen’s Juror was fined $1,000 and resulted in mistrial • Minnesota Judge called courtroom a “zoo” on social media • Beware when “friending” judges
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ETHICS RECAP
• Don’t “Friend” potential jurors • Do not delete data from social media profiles
• You can advise clients to restrict access via privacy settings as long as no evidence is deleted.
• Candor Towards the Tribunal • Social media is national
ETHICS OF DATA SECURITY
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THE PROBLEM
• Being “computer illiterate” or not being a
“computer person” is no longer an excuse.
• We’re carrying a computer in our pocket.
• Everyday a basic service moves to online
(only).
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WHAT WE’LL COVER
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• Secure Email
• Storage
• BCC
• Virus / Malware
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TOP 25 PASSWORDS OF 20151. 123456 2. password 3. 12345 4. 12345678 5. qwerty 6. 123456789 7. 1234 8. baseball 9. dragon
10. football 11. 1234567 12. monkey 13. letmein 14. abc123 15. 111111 16.mustang 17. access 18. shadow
19. master 20. michael 21. superman 22. 696969 23. 123123 24. batman 25. trustno1
Ars Technica stated in 2012 that a 25-GPU cluster could crack every Windows
password under 8 characters in less than six hours.
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GENERATE SECURE PASSWORDS
• Use a convention • For example - pick three words that mean something to you or are
easy to remember • Use a song title and numbers to make a secure password.
• StHLZ1971
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PASSWORDS
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WIFI
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WIFI
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IF YOUR DATA IS COMPROMISED - HAVE A PLAN
• Having a plan in place can help reduce stress, expedite the recovery process, and possibly protect you against further lawsuits.
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YOU ARE NOT IMMUNE
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CLIENT INFORMATION
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CLIENT INFORMATION
• 2008 Formal Ethics Opinion 5 • Opinion rules that client files may be stored on a website accessible by
clients via the internet provided the confidentiality of all client information on the website is protected.
• “The use of a web-based management system that allows both the law firm and the client access to the client's docketing information or other information in the client's file is permissible provided the lawyer can fulfill his obligation to protect the confidential information of all clients.”
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UNBUNDLING
• Becoming increasingly valuable • Quick • Selective • Convenient
North Carolina RPC 6.5 2005 Formal Ethics Opinion 10
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LAW PRACTICE MANAGEMENTWhat Can the Cloud Do?
• Matter management
• Time and Billing
• Docusign
• Document Management
• Email, Correspondance, Communication
• Information Storage
• Multi-Device Access
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LAW PRACTICE MANAGEMENT
Technology to Embrace:
• Paperless Office
• Smart Phones
• Cloud Services
• Word and Excel (Kia Test)
• Redact on Acrobat Pro
• Call Assistance
QUESTIONS?
