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How NOT to Produce Facebook Evidence

Posted by Molly DiBiancaOn July 23, 2014In: Purely Legal, Social Media in the Workplace

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Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is. ESI Discovery

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it.  I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it.  Ummmm, no. 

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI).  In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in “native format.”  (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . . :

printed out responsive emails and provided photocopies of certain portions of those emails to defendants. Additionally, [one plaintiff] provided the content of several text message exchanges and Facebook posts by transcribing those messages on loose-leaf paper.

The Court granted the motion to compel. 

Initially, I assumed that the producing parties must have been acting pro se (without counsel) because there is just no way that a lawyer would produce text messages and Facebook posts that were “transcribed” on “loose-leaf paper.”  Upon closer review of the opinion, though, it appears that all parties were represented.  Clearly, I am missing something about the course of events that led a party to produce ESI in this “format” (is loose-leaf paper even considered a “format”?). 

What matters, though, is that employers and their counsel be diligent in their efforts to preserve all potentially relevant evidence, including text messages and social-media content, and to preserve it in its original form (native format).  Preservation is the first step.  Maybe we can work on our production skills after that.  I’ll keep my fingers crossed.

Wellin v. Wellin, No. 2:13-cv-1831-DCN, 2014 U.S. Dist. LEXIS 95027 (D.S.C. July 14, 2014).

Waiver of Attorney-Client Privilege Via Facebook

Posted by Molly DiBiancaOn July 10, 2014In: Purely Legal, Social Media in the Workplace

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Breaches of confidentiality via Facebook and other social media are more common than most of us would like to think.  Employees post information about customers, clients, and patients on Facebook, in violation of internal company policies and privacy laws, such as HIPAA, for example.  I recently wrote about a plaintiff who could not collect a sizeable settlement payment because his daughter posted about the settlement on Facebook, which served to demonstrate that her father had breached the confidentiality provision in the settlement agreement.  Waiver of Privilege via Facebook

There’s another reason to be concerned about what employees say on social-networking sites—waiver of the attorney-client privilege.  The general rule is that confidential communications between an attorney and her client are subject to the privilege and are not subject to discovery by the opposing side.  Privilege can be waived, however.  And one way for a client to waive privilege is to have the communication in the presence of a third party.  Another way is for the client to tell a third party about the communication between himself and his lawyer. 

For example, Lawyer and Client meet to discuss strategy regarding litigation.  This conversation would be privileged.  If Client brings his friend to the meeting, the conversation would not be privileged.  And, if Client did not bring his friend but reported the conversation to his friend after the meeting was over, the privilege would be lost. 

Communicating an otherwise privileged conversation via Facebook is no different than if done via telephone or in person.  A case decided earlier this week in a federal court in Nebraska reminds us of this risk.  In Kaiser v. Gallup, Inc., the employee-plaintiff filed suit under the ADA against her former employer.  During discovery, the employer learned that the plaintiff had communicated with her cousin, who was a lawyer, about events leading up to the plaintiff’s termination.  The employer also discovered that the plaintiff had discussed the  communications with her cousin (the lawyer) via Facebook. 

The employer sought to compel the plaintiff to produce those communications.  In response, the plaintiff contended that they were protected by the attorney-client privilege because, at the time the communications were made, her cousin represented her as counsel in her unemployment-benefits claim.  The employer argued that, even if the privilege had once applied, the plaintiff waived it when she discussed the communications with third parties.  The plaintiff failed to show that she hadn’t waived the privilege and the court granted the employer’s motion. 

This case, and others like it, serve as a good reminder that confidential information should not be shared through any medium, including social media.  Posting it to Facebook is, contrary to popular belief, the equivalent to sharing it on the phone, in an email, or in person.  If it’s a secret—it doesn’t belong on Facebook. 

Kaiser v. Gallup, Inc., No. 8:13CV218, 2014 U.S. Dist. LEXIS 92588 (D. Neb. July 8, 2014).

Jurors Behaving Badly

Posted by Molly DiBiancaOn June 16, 2014In: Purely Legal, Social Media in the Workplace

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Jurors misbehaving have been making a lot of news headlines lately.  And jurors’ online research is one of the most commonly reported problems in this area. Jurors Behaving Badly

In May 2014, for example, a jury awarded the plaintiff, a former police officer, $300,000 in compensatory damages and $7.2 million in punitive damages based on its finding of unlawful sexual harassment and retaliation.  The employer appealed the judgment after a juror acknowledged that, during deliberations, he Googled the phrase, “where do punitive damages go” and, after reading a Wikipedia entry on the subject, told his fellow jurors that the plaintiff would receive some or all of such an award.

Delaware has not been immune from this problem.  In May, the Delaware Supreme Court reversed a final judgment following a jury verdict due to alleged juror misconduct.  In Baird v. Owczark, the plaintiff moved for a new trial on several grounds, including juror misconduct.  In the two weeks after the jury had delivered its verdict, one of the jurors wrote a letter to the trial judge informing him that another juror had conducted online research during deliberations.

The court heard oral argument about the alleged misconduct but did not conduct an investigation.  The Supreme Court reversed and remanded, finding that the Delaware Constitution mandates an investigation following allegations of juror misconduct.  Such an investigation is mandatory even where the trial court gave clear instructions regarding the use of the Internet as a source of extrinsic information.

Baird v. Owczark, No. 504 (Del. May 28, 2014).

See also

Peek-a-Boo, I See You: Juror Contact Via LinkedIn

3d Cir. "Likes" Jury Instructions on Social Media

Delaware Supreme Court Rules On Admissibility of Facebook Evidence

Posted by Molly DiBiancaOn February 12, 2014In: Purely Legal, Social Media in the Workplace

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Employment lawyers know the potential importance of social-media evidence.  I’ve written about numerous cases in which an employee is fired for something he posted on Facebook or other social-media site.  As a general matter, it is not unlawful per se to make an employment decision based on information obtained from a social-networking site.  (Of course, the normal rules apply to social media, too.  Thus, it is unlawful to make an adverse employment decision based on race, religion, gender, etc., regardless of the source of that information.)  Facebook Delaware

So employers may make decisions with social-media “evidence.”  Whether an employer (or other party) has a right to discovery of such evidence during litigation and, if so, how to go about getting it, are two entirely different questions.  (If you’re interested in the answer, here’s a link to an article I wrote last month for the ABA Business Law Section, Discovery and Preservation of Social-Media Evidence). 

Assuming the employer is able to obtain relevant social-media evidence, there is yet another question to be answered—is the evidence admissible in the litigation?  There is a split among courts as to the appropriate standard for admissibility of social-media evidence.  Without oversimplifying it too much, there are two approaches.

First, there is the Texas approach.  That approach requires the proponent of the evidence to make some proffer of authenticity.  In other words, if you want it to come into evidence, you have to make some affirmative showing that it is authentic.  If an employee, for example, denies writing the Facebook post, the employer must offer up some evidence to prove that the evidence is not fraudulent.  In short, under the Texas approach, the proponent does not necessarily need to prove that the social media evidence is authentic, so long as a jury "could reasonably find” the evidence authentic.

Second, there is the Maryland approach.  This approach imposes a higher standard and requires that the proponent of the evidence offer some sort of evidence to show that the posts are authentic.  For example, the proponent could ask the supposed author (i.e., employee) if he or she created the profile or post, search the internet history and hard drive of the purported creator’s computer, or obtain information from the social-networking site itself.  Those courts that have followed the Maryland approach cite to a concern that social-media evidence could be fake or otherwise inauthentic.

The Supreme Court of Delaware has now weighed in on the question.  In Parker v. State of Delaware, decided last week, the state’s highest court adopted the Texas approach.  Specifically, the Court acknowledged that social-media evidence could be falsified but concluded that such evidence should be treated like other forms of evidence.  In other words, where a proponent seeks to introduce social-media evidence, he or she may use “any form of verification” available under the Rules of Evidence, including:

witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question.

This is, in my opinion, the correct approach.  Social-media evidence should not be made more difficult to authenticate merely because it is “possible” to falsify such evidence.  All evidence can be falsified.  To make the proponent attempt to authenticate a Facebook post by obtaining some kind of verification from Facebook is more than highly impractical—it can be close to impossible since Facebook will not release much, if any, user information absent a criminal subpoena or written consent from the user himself. 

This ruling is an important one—in Delaware and in those jurisdictions where the issue has not yet been decided—and I hope more courts adopt a similar finding. 

Parker v. State of Delaware

, No. 38, 2013 (Del. Feb. 5, 2014).

Discovery and Preservation of Social Media Evidence

Posted by Molly DiBiancaOn January 27, 2014In: Purely Legal, Social Media in the Workplace

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This one is for the litigators in the group.   An article I wrote about the discovery of social-media evidence is now available online at Business Law Today, a publication by the ABA Business Law Section.  My article, Discovery and Preservation of Social Media Evidence, is one of several in a mini-theme issue focusing on Social Media and Business Law.  like tweet share follow letterpress

Other feature articles include:

-The Threat of Social Media Diligence on the Confidentiality of the M&A Process: The Problem and Possible Solutions, by Jonathan D. Gworke

-10 Tips for Avoiding Ethical Lapses When Using Social Media, by Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath

-Privacy and Social Media, by Theodore F. Claypoole

Enjoy!

Court Finds Duty to Preserve Personal Emails of Employees

Posted by Molly DiBiancaOn October 15, 2013In: Policies, Privacy In the Workplace, Purely Legal, Social Media in the Workplace

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The modern workplace presents a cornucopia of problems thanks to technology.  As much as employers may want to restrict employees from surfing the Internet or checking Facebook during working time, it’s nearly impossible.  After all, employees can just use their personal cellphones to get online.  Add to that reality the fact the growing popularity of BYOD policies. 

So what, you might ask?  Well, one big problem is when an employee uses his personal device or account for company business.  The issue of whether the employer is deemed to have custody or control over an employee’s work-related emails sent to and from the employee’s personal email account. BYOD

In a recent case in Kansas, the court found that the employer did not have possession, custody, or control of employees’ personal emails and therefore did not have to produce the emails in discovery.

But a new case from Puerto Rico takes a different approach.  In P.R. Telephone Co., Inc., v. San Juan Cable LLC, the court found that the company did have a duty to preserve relevant email from the personal email accounts of three of the company’s former officers.  The only facts given by the court as the basis for its decision is that the company “presumably knew” that its officers had used their personal email accounts to manage the company for seven years.

Although the court did not order sanctions, it did find that there was a failure to preserve relevant evidence.  The court denied the motion for sanctions without prejudice, leaving open the possibility that the motion could be renewed if discovery revealed additional evidence of spoliation.

P.R. Telephone Co., Inc., v. San Juan Cable LLC, No. 11-2135 (GAG/BJM), 2013 U.S. Dist. LEXIS 146081 (D.P.R. Oct. 7, 2013).

[H/T Bow Tie Law Blog]

Discovery of Social-Media Passwords

Posted by Molly DiBiancaOn October 1, 2013In: Purely Legal, Social Media in the Workplace

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Access to social media in civil litigation remains a Wild West in many respects.  Parties don’t know what to ask for, so they ask for too much.  When the other side refuses, the court often agrees because the request is so obviously overbroad.  When it comes to discovery of social-media contents, the general rule of thumb is the narrower, the better.

But what about requests for passwords and user names?  I think most reasonable minds agree that employers should never ask an employee for his or her Facebook password.  So why are lawyers doing it?  Beats me, man.  It’s a terrible idea, no matter who makes the request. keyboard with blue lock key

A recent case in Louisiana seems to support this conclusion.  In NOLA Spice Designs, LLC v. Haydel Enterprises, Inc., the defendant sought to compel the plaintiff-entity and its principal to produce “passwords and user names to all online web sites related to the issues in this litigation, including social media, weblogs, financial information and records”  The court had little trouble concluding that the requests were overly broad and “far exceeded” what was considered proportional under the discovery rules. 

The court acknowledged that the plaintiffs had “no protectable privacy or confidentiality interest in material posted or published on social media.”  Nevertheless, the court explained that there was no reason that the plaintiffs should be required to give total access to their adversary, thereby allowing the defendant to roam around and, potentially, engage in “mischief.”

The court’s analysis is correct.  There is no basis to require a party to turn over social-media passwords during litigation.  In fact, it’s a terrible idea to do so.  And, in my opinion, lawyers are best advised not to request passwords in the first place.  Even if the other side is willing to turn it over, you risk any number of bad outcomes, such as spoliation of evidence.

One court feels at least as strongly as I do on the subject.  In Chauvin v. State Farm Mutual Automobile Insurance Co., a federal court in Michigan affirmed an award of sanctions against a defendant due to its motion to compel production of the plaintiff’s Facebook password.  The court found that the Magistrate Judge did not err in concluding that the content that the defendant sought to discover was available “through less intrusive, less annoying and less speculative means” even if relevant. Furthermore, there was no indication that granting access to the account would be reasonably calculated to lead to discovery of admissible information.  No. 10-11735 (S.D. Mich. Oct. 20, 2011). 

NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515 (E.D. La. Aug. 2, 2013).

Peek-a-Boo, I See You: Juror Contact Via LinkedIn

Posted by Molly DiBiancaOn September 30, 2013In: Purely Legal, Social Media in the Workplace

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Rules of ethics limit lawyers’ communications with certain groups of people.  For example, a lawyer may not communicate about a matter with a party who is represented by counsel.  Similarly, a lawyer may not communicate with jurors during a trial.  In some states, including Delaware, the prohibition on lawyer-juror communication continues even after the trial has concluded. 

Because of these ethics rules, the definition of “communication” is very important.  When I teach legal ethics and social media, I discuss “inadvertent” communications that can occur via social-networking sites.  For example, at my direction, my paralegal “follows” a juror on Twitter, the juror may receive an email notifying him of his new follower.  Is this a “communication”?   Yes, it probably is because my paralegal “followed” the juror for the purpose of seeing what he is tweeting that may be relevant to the case.   LinkedIN logo icon white

But what if the juror follows me on Twitter long before the trial.  During trial, the juror could view my tweets because they would appear in his timeline.  Would I have “communicated” with the juror?  Maybe. Assuming so, my communication would have been inadvertent, for sure. 

There’s another scenario that I give in this context that, unfortunately for all parties involved, has come to fruition.  In the Bank of America “hustle” case, one of the jurors has notified the court that one of the lawyers for the defense had reviewed the juror’s LinkedIn profile.  Judge Jed Rakoff of the S.D.N.Y. said that, when an associate had viewed the juror’s LinkedIn profile, the firm had “communicated” with the juror.  For those familiar with LinkedIn, you likely know that you can see who has “viewed your profile” within a certain period of time unless the user is not logged in or unless the user has a premium (paid) account, which enables him to block you from seeing his identity.

According to the WSJ’s MoneyBeat blog, the judge ruled that lawyers could conduct Internet research on potential jurors but only during the jury-selection period.  Once trial began, that research was supposed to stop.  (This, too, raises interesting questions.  Why wouldn’t the court want to know if jurors were engaged in misconduct online during the trial?  But that’s a whole different set of questions.)  Apparently, the court has determined “no harm, no foul” because the case will proceed as scheduled with an instruction to the jury that the search was a mistake that they should disregard.

This story, however, should serve as a lesson to lawyers everywhere—understand how social-media works and make sure those who are working for you do, too.  There are ethical implications, as well as the risk of significant costs to the client for failing to “get it.” 

See also, M. DiBianca, Ethical Risks of Lawyers’ Use of (and Refusal to Use) Social Media (Del. L. Rev. 2011) (PDF).

Kansas Court Mitigates the Risks of a BYOD Workforce

Posted by Molly DiBiancaOn August 12, 2013In: Policies, Privacy In the Workplace, Purely Legal, Social Media in the Workplace

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BYOD at work is all the rage. What is BYOD, exactly? Well, it stands for “Bring Your Own Device” and, put simply, it means that an employee uses his own smartphone, tablet, or laptop for work as well as for his personal purposes.  BYOD policies raise several concerns, including increased security risks and wage-and-hour issues for work performed at home.  Another issue is one of particular interest to litigators like me—the question of how BYOD policies will affect e-discovery.  In other words, will an employer be on the hook for the preservation of its employees’ personal devices if those devices are used for work and for personal purposes? Discovery of text messages

The answer to this question can have wide-reaching impacts. For example, if the answer is, “yes,” the employer would be responsible for ensuring that each such device is preserved immediately upon the threat of litigation. But telling your employees to submit their personal smartphones to the company’s lawyers is probably not going to go over so well. 

A recent case from a federal court in Kansas gives hope to employers who want to permit employees to use their own devices without risking liability for failing to preserve those devices should litigation arise.  In Cotton v. Costco Wholesale Corp., the District of Kansas denied the employee-plaintiff’s motion to compel text messages sent or received by employees on their personal cell phones. The court’s decision was based on the fact that the employee had not shown that the employer had any legal right to obtain the text messages.  In other words, that the phones and the data they contained were not in the “possession, custody, or control” of the employer.

The court also based its decision on the absence of any evidence that the employees had used their phones for work-related business. Although it wasn’t the controlling factor in the outcome of the case, the fact that it was mentioned by the court is likely enough to give future litigants grounds to argue that where BYOD is the standard policy—officially or unofficially—there is a basis to compel production. But, for now, this decision is definitely a positive sign for risk-adverse employers.

Cotton v. Costco Wholesale Corp., No. 12-2731 (D. Kan. July 24, 2013).

H/T Jay Yurkiw at Porter' Wright’s Technology Law Source blog.

Judicial Notice of LMAO

Posted by Molly DiBiancaOn July 24, 2013In: Public Sector, Purely Legal, Social Media in the Workplace

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In preparing for an upcoming social-media seminar, I was reviewing my always-expanding research file of cases that address social media in employment law.  It’s a challenge to keep up with all of the new case law as it is decided so it’s a rarity that I re-read opinions.  But, when I do, I almost always stumble across a jewel or two that I didn’t notice in the first (or second) reading. 

One such case is Spanierman v. Hughes, which was one of the earliest cases involving what I now call a “Facebook firing.”  The case, decided in 2008, was decided pre-Facebook, though, so the social-media site in question was MySpace. 

The case was an important one for public-sector employers, upholding the decision to terminate a teacher who posted unprofessional content on his MySpace page and used his account to communicate even less professional and sometimes inappropriate messages with his students.  The teacher brought his suit under the First Amendment, arguing that the content and messages constituted protected free speech.

But this time around, I noticed a footnote that I’d not caught in my first readings of the case.  Specifically, the court took judicial notice of some abbreviations that are now part of our everyday vernacular.  The court also takes judicial notice of the definition of an “emoticon" and even provides some examples!

Judicial notice, if you’re not familiar with the term, is a way for the court to accept as true a fact that is not in the record but that is not subject to dispute.  For example, a court could take judicial notice of the distance between two locations by referencing a map (or, in today’s world, MapQuest, I suppose).  Here’s the text of the footnote, in case any lawyers who are reading someday want to cite a case as support for what “LOL” and “LMAO” stand for:

The court has not altered the contents of this or any other exchange taken from the Plaintiff's MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., "LOL" can mean "laughing out loud," and "LMAO" can mean "laughing my ass off"). Furthermore, such exchanges often contain so-called "emoticons," which are symbols used to convey emotional content in written or message form (e.g., ":)" indicates "smile" or "happy," and ":(" indicates "frown" or "sad").

A more recent decision in which it appears that the judge took judicial notice of the existence of an entire Facebook page was reported on the Bow Tie Law Blog.  That decision has far greater legal significance but it’s not quite as much fun as the “LMAO footnote” discussed above. At least that’s IMHO.  ;o)

Spanierman v. Hughes, 576 F. Supp. 2d 292, 312-313, n.13 (D. Conn. 2008).

See also

Workplace Email: The Devil Made Me Do It

Why I May Have to Eat My Emoticons

Don't Be a Quitter: The Duty to Mitigate

Posted by Molly DiBiancaOn January 23, 2013In: Discrimination & Harassment, Purely Legal

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An employee who is unlawfully terminated may be entitled to recover damages in a variety of forms, including front pay. Front pay can be a frightening prospect for the employer-defendant--just imagine having to pay a former employee for time he doesn't work for you. Not pleasant.

But, as is the case in most employment laws, the rules tend to balance out in a fair way. An employee who claims she was unlawfully terminated because of her gender cannot merely sit at home indefinitely and wait to collect a big jury award. The law imposes what is called a "duty to mitigate," which means that the employee has the duty to mitigate her losses.

duty to mitigate damages.jpg

If an employee fails to look for work at all and, instead, elects early retirement, her damages are tolled. In other words, she will not be eligible for an award of front pay during any period in which she is not actively seeking work. The phrase used by the courts is that the employee must be "ready, willing, and able" to obtain employment. If, instead, she elects to stay home and watch soaps all day, she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.

So, on one hand, if the employee makes constant and good-faith efforts to seek similar employment, she is eligible to receive front pay if victorious on her claims. On the other hand, she will receive no front pay if she voluntarily elects to remove herself from the job market. But, as with everything in the law, there are countless variations in between these two extremes.

For example, what if the employee decides not to look for work so she can stay home with her young children? But, once the kids are old enough, she elects to return to the workforce and begins again to actively seek employment? In the Third Circuit, which covers Delaware, Pennsylvania, New Jersey, and the Virgin Islands, she would not be able to collect front pay during the period when she stayed home but, once she started to look for work, she would be eligible for front-pay damages again.

And what if she elected to try a new career path and, in that effort, returned to college to complete her degree? In that case, the courts differ. Some say that she would still be eligible for front pay as long as she was ready, willing, and able to work. Others say that she could not be awarded front pay unless or until she returned to an active job search.
The cases are very fact specific and difficult to predict. However, at least in the Third Circuit, one thing is settled--an employee who makes no attempt to look for work after an allegedly unlawful termination is deemed to have voluntarily withdrawn from the job market and is ineligible for an award of front pay for that time.

Del. Supreme Court Warns Lawyers to Mind the Clock

Posted by Molly DiBiancaOn January 10, 2013In: Cases of Note, Delaware Specific, Purely Legal

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The Delaware Supreme Court started the New Year with a resolution of sorts for lawyers. In a decision issued on January 2, 2013, the Court instructed that, if counsel agrees to alter a deadline in the trial court's scheduling order, all remaining deadlines will be rendered inapplicable:

Henceforth, parties who ignore or extend scheduling deadlines without promptly consulting the trial court will do so at their own risk. In other words, any party that grants an informal extension to opposing counsel will be precluded from seeking relief from the court with respect to any deadlines in the scheduling order.

The Court also stressed the priority of avoiding any changes that would affect the trial date:

. . . [I]f the trial court is asked to extend any deadlines in the scheduling order, the extension should not alter the trial date. Counsel may face a compressed time period to complete discovery, or the filing of dispositive motions, but the most important aspect of the scheduling order--the trial date--will be preserved.

And, the Court warned, where the trial court does elect to postpone the trial date, the parties should expect that their new date will be after "all other trials already scheduled on the court's docket." In other words, there's no butting in line.

The Court's admonition is a welcome one. All too often, counsel wants to extend a deadline that truly should not be extended. There seems to be a belief by some practitioners that all requests or extension must be granted. This simply is not true. In fact, a lawyer may not agree to extend a deadline that would detrimentally affect his client's case.

Moreover, the parties negotiate the scheduling order--it is not a set of arbitrary deadlines forced upon them by the court. It is a set of obligations created entirely by agreement. Thus, I tend to have a fairly low tolerance for the opposing counsel who cries that he just couldn't meet the deadlines and whines that I'm such a monster for not agreeing to extend them. In my book, a deal's a deal and there's a lot to be said for keeping your promises.

Christian v. Counseling Resource Assocs., Inc., C.A. 460, 2011 (Del. Jan. 2, 2013).

Thoughts on Writing a Legal Blog

Posted by Molly DiBiancaOn December 17, 2012In: Purely Legal, YCST

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Being selected as a Top 100 Blawg by the ABA Journal again this year is such an honor. What makes this honor even more remarkable is the popularity of our field. According to the State of the AmLaw 200 Blogosphere report, Labor and Employment is the single most popular category for legal blogs among the country's largest law firms. Put that fact together with the fact that we are not a big law firm and I'm even more flattered than I dare express.

For those of you who have already cast your vote for us in the Labor & Employment category, thank you, thank you, thank you. If you haven't yet voted, there's still time--voting closes at the end of this week.

As I've said a number of times, blogging is a real labor of love. It doesn't pay--just the opposite, it takes time that I would otherwise spend doing billable work. So why do it? Honestly, there are more reasons than I could fit in a single post.

If you're considering starting a blog or if you just want to learn more about it, take a stroll around the newest blog written by Ernie Svenson. Ernie is a practicing attorney in New Orleans who also happens to be a prolific blogger. He's written a great new book for the ABA titled, Blogging In One Hour for Lawyers.

Ernie was kind enough to mention me in the book's Acknowledgment and has posted my answers to 5 questions he asked several law bloggers. Check out his blog post to get a sense of why I love blogging and how I got started. While you're there, be sure to check out the answers that other bloggers shared, as well.

And thanks again for your ongoing support of our humble endeavor at the Delaware Employment Law Blog!!

Kansas Lawyer Fired for Profane Tweet

Posted by Molly DiBiancaOn November 27, 2012In: Purely Legal, Social Media in the Workplace

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Lawyers' use and misuse of social media is, as many readers know, a topic that I love. Although it's been a while since I posted about a lawyer's social-media "fail," it certainly isn't because of a lack of potential stories. Here's a recent story that made the headlines of the Huffington Post.

Sarah Peterson Herr was employed as a research attorney for a Kansas Court of Appeals judge when she tweeted about that State's former Attorney General, Phill Kline. At the time of the tweets, Kline was appearing before the Kansas Supreme Court as part of an ethics investigation.

The tweets weren't exactly journalistic in nature. Nor were they very complimentary of the former AG. In one, Herr asked, "Why is Phil Klein (sic) smiling? There is nothing to smile about, douchebag." How charming. In another tweet, Herr predicted that the former AG would be disbarred for seven years for his conduct during investigations of abortion providers.

It's unclear where exactly Herr was when she posted the tweets but it does seem that, if she wasn't actually present at the hearing, she was purporting to be. Either way is problematic. Judicial staff, including staff attorneys, are prohibited from commenting on pending cases, as are the judges to whom they report.

When the story broke, Herr apologized, saying that she "failed to realize her posts were readable by all Twitter readers," reports the Huffington Post. She was suspended with pay on Friday but, by Monday, the Kansas Supreme Court's Chief Justice announced that Herr had been terminated and referred to the appropriate ethics offices.

Litigators Love Depositions. Most Days, Anyway.

Posted by Molly DiBiancaOn September 27, 2012In: Purely Legal

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Litigators love depositions. Well, at least this litigator does. There's something about the challenge of navigating the subtle ebbs and flows of a personality you know only through the written word. But as much as I enjoy them, depositions are exhausting endeavors.

The mental jumping jacks are made all the more exhausting when the deponent is uncooperative or hostile. Of course we never expect the deponent to be particularly helpful but there is a middle ground. Nevertheless, when the plaintiff in an employment-discrimination suit refuses to cooperate, I have to wonder.

Specifically, I have to wonder about her counsel. Is he asleep at the wheel? Good plaintiffs' lawyers know that, at trial, their client is the one with the burden of proof.
Refusal to cooperate at deposition and a sudden "inability to recall" basic facts can be a major weapon in a defense lawyer's arsenal at trial. When a jury hears (or, if videotaped, sees) a plaintiff playing dumb at deposition, they are far less inclined to be sympathetic and much more likely to see her as a manipulating fraud. And that suits me just fine.

So, when I am deposing one of these "charming" individuals, I don't waste my time trying to beat answers out of her. If she doesn't want to testify honestly, so be it. I tend to let her write her own ticket to defeat. And, in jurisdictions like Delaware, where such conduct is sanctionable, I may be inclined to seek reimbursement of my fees. In the Third Circuit, a deponent who is so evasive that she prevents the questioner from eliciting appropriate testimony can be sanctioned by the court. And so can her lawyer if he sits silent, allowing his client to play games with opposing counsel.

So how about this deponent? In the video, below, the famous rapper, Lil' Wayne, is being deposed and, let's just say, he's not exactly playing along. He is the plaintiff, so the burden is his but the questions he is being asked are hardly relevant to the case. Am I horrified by his refusal to cooperate and his apparent inability to recall his criminal history? Frankly, I am not.

Parents, if you have big dreams about your son or daughter taking up the law for a living, I encourage you to watch the video and reconsider. Really, do you want your precious angel sitting across the table from Lil' Wayne and having to deal with that nonsense for a living? It takes a very particular kind of personality to handle, nevertheless feel some modicum of satisfaction from, a day at the office that goes like this.

And, because it's Friday, I'd like to share one more thing before signing off. For the litigators in the audience--both plaintiffs' and defense--I encourage you to read this post from the blog, Abnormal Use. The title of the post says it all, "The Most Unwritten Rule: Depositions Should Start at 10 a.m." If you are one of the lawyers who feel compelled to notice a deposition to begin any earlier than 10 a.m., I hope this post makes you reconsider the idea.

I recently had a case in which a lawyer on the other side took no less than 10 depositions, almost all of them at his office, which was located more than 2 hours from mine. Despite knowing that the witnesses and counsel had to drive such a far distance, he insisted on beginning at 9 or 9:30 a.m. I managed it but still harbor some resentment about it. He will not be on my holiday-card list this year.