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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.

Legal Ethics Social-Media Lessons for Employers

Posted by Molly DiBiancaOn September 17, 2012In: Purely Legal, Social Media in the Workplace

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Legal-ethics issues in social media is probably my favorite subject. If that makes me an uber dork, so be it. Last week I had the pleasure of speaking on this topic to the Richard K. Herrmann Technology Inn of Court here in Delaware. And, on Friday, I'll be heading to Charlottesville to present on the topic at the Virginia Bar Association's Conference on Labor Relations and Employment Law, which I am looking forward to immensely.

Despite my interest in the subject, I don't often post about legal ethics here because it doesn't directly relate to employment law. Today's post, though, is an exception to that self-imposed rule. And, because you're indulging my side interests, I'll return the favor and tie the lesson of the story back to employment law. There are three recent cases that got my attention.

Lesson 1: Know What Your Subordinates Are Doing On Your Behalf
The first case involves two New Jersey defense lawyers who are charged with violating the rules of ethics. The lawyers' paralegal is alleged to have friended the plaintiff in one of the firm's cases. The allegation arose after the lawyers asked "very specific" questions at the plaintiff's deposition, which indicated that they had somehow had access to the non-public portions of the plaintiff's Facebook profile. The defendant later supplemented its discovery responses with Facebook pages from the plaintiff and the plaintiff's friends.

The plaintiff filed an ethics complaint in which he alleges that a paralegal working for defense counsel friend him to get access to his non-public profile. The lawyers are reported to deny any knowledge of the paralegal's conduct. This does not immunize them from discipline, though. The rules of ethics impute liability for the acts of non-attorney agents to the attorney for whom they work.

One of the reasons that I find this case so interesting is that, in my opinion, it was bound to happen. Although several bar associations around the country (including Philadelphia), have issued advisory opinions that explain that friending a represented person would likely violate the rules of ethics, I still think it is just a matter of time before we see more cases involving similar conduct.

So what's the HR takeaway? Well, here's one: know what your HR staff is doing and how they're doing it. You may be surprised to find how many people in HR (and supervisors generally), conduct online searches of job applicants prior to an interview. Surprise or not--you and your organization will be on the hook for the conduct of your staff. But you won't know until you ask.

See Mary Pat Gallagher's article, When 'friending' is hostile, Daily Report on Law.com

Lesson 2: Be Aware of "Friendly" Conflicts
The second case comes from Florida, where a judge has been disqualified from a case because he was Facebook friends with the prosecutor. Florida has a rule that judges may not be Facebook friends with attorneys who will appear before them due to the potential appearance of impropriety. Whether you agree with the outcome of his case or not, employers--particularly HR professionals and supervisors--should again consider the propriety of being Facebook friends with direct reports. Sometimes it's not just whether there is a conflict; sometimes problems arise just from the perception of a conflict.

See Venkat Balasubramani's post at the Technology & Marketing Law Blog.

Lesson 3: You Can Breach Confidentiality Via Facebook
Our third case also comes from Florida, where a 31-year-old public defender has been terminated as a result of a picture she posted on her personal Facebook page. Specifically, the photo was of her client's leopard-print underwear. She took the picture when a corrections officer was inspecting the garment. Her client's family had brought the underwear and other clothes for him to wear to trial.

The client had requested new counsel on several occasions but was denied. Someone saw the picture and reported it to the judge presiding over the trial. The judge ordered a mistrial and the attorney was immediately filed.

There are multiple lessons to be learned from this story but I'll keep it to just one. People continue to believe that what they post on Facebook "stays on Facebook." This is simply not true. And the sooner we learn this, the better. Consider using this story as a "teaching moment" for your employees.  

See Martha Neil's article at ABA Journal

How to Nail Your Law-Firm Interview

Posted by Molly DiBiancaOn August 22, 2012In: Hiring, Purely Legal

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I take very seriously the job of interviewing potential candidates. There are certain things that a candidate can do or say to sabotage their chances at getting an offer. Many of these "offer killers" are more common than you might think. Many of the lawyers I've talked with have expressed frustration about similar behaviors from the candidates they've interviewed. In an effort to help future candidates, I humbly suggest some things to avoid.

Only Fools and Egomaniacs Submit a Less-than-Perfect Resume

No student should ever--and I do mean ever send out a resume that hasn't first been reviewed by several professionals. Whether it's through your school's Career Services department, through a formal resume-review program, or just by the smartest professional adults you know, there are plenty of resources for having your resume reviewed.

When I receive a resume that misses the mark in even the smallest way, I find it difficult to take the candidate seriously. It tells me that the candidate has one of two equally undesirable personality traits. He is either: (1) sloppy and lazy; or (2) thinks he is smarter than everyone else. There are no other explanations for a student who fails to have his resume reviewed (repeatedly) prior to submitting it. I do not want to work with a new lawyer who falls into either category.

One Error In a Cover Letter Is One Error Too Many

The same rules apply with respect to cover letters. I cringe when I think of the number of times I have seen a cover letter that starts with, "I am a second year law student" instead of the properly hyphenated, "I am a second-year law student." It's called a phrasal adjective, kids. It's ok if you don't know what one is but you'd better find someone who does so they can point out your mistake.

If a dork like me receives a cover letter that contains an error in the first sentence, you're facing an uphill battle. And not just because of your claim, two paragraphs later, that you have "outstanding writing skills." For me, the real frustration is that you could have gotten right, you just didn't bother to take the time to ask someone. You have a legal-writing teacher, don't you? Ask him or her to look at your letter and thank him or her profusely if they return it to you covered in red ink.

Get the Name Wrong and You've Got No Chance

The cardinal sin for cover letters, though, is not grammatical. It's far, far worse. Although far less common, I am still amazed when I read a cover letter that, at least once in the body of the letter, makes reference to the wrong firm.

Yes, it happens. Usually right around the third paragraph, which must be when students grow weary of editing their own work, the author reiterates how confident she is that she will be an attribute to Smith, Jones, and Smith, LLP. Except, I don't work for Smith, Jones, and Smith, LLP. Smith, Jones, and Smith, LLP, is my firm's competitor.

To me, this error demonstrates the candidate's lack of editing skills and, more important, lack of interest. Neither of which are positive qualities in a potential new hire.

Your Resume Is Not the Place to Demonstrate Your Creativity

Creativity is a desirable trait for a lawyer. But resumes are not the place to show us how creative you can be. Save it for your legal analysis. There are two common failures in this regard.

First is the Overly Long Resume. Legal resumes should be one page in length and no more. You are not, I guarantee, so amazing as to require additional pages. Brevity in writing is a skill, so start practicing.

Second is the Oddly Formatted Resume. Lawyers don't use crazy fonts. If you want to demonstrate your prowess for typeface, go into graphic design, not into the practice of law. Your resume is not the place to use distracting borders or other "fun" formatting techniques.

Mind Your Manners

Try to recall every lesson your mother ever taught you about proper etiquette. Then try harder to remember some more. And take them to heart.

My entire interaction with you is limited to a 20-minute interview. None of these 20 minutes should be spent slouched in your chair. Sit up straight. Look me in the eye when you are answering a question. And don't interrupt me when I'm speaking. The same rules apply in the courtroom and I don't want to have to teach these rules to you now--you've got plenty of other things to learn, trust me.

Speak Like a Grown-Up, Even If Your Interviewer Doesn't

Language matters. Word choice matters. We are lawyers and we care how you speak. Do not use any words such as "cool" or "yeah" during your interview. And, I know it's hard but try to limit the amount of times you say the word, "like." You wouldn't believe how many times a candidate utters that word during a short interview. It would make your head spin. I understand that this is a habit that is difficult to break. But try anyway.

Be wary if your interviewer is on the younger, cooler side of the lawyer spectrum. I am sure that I tend to come off as more casual than many of the interviewers that candidates meet. But don't let my preference for pink fool you. I still expect you to conduct yourself in the same way that you would if I was wearing black pinstripes.

I may be partly to blame for this casual leaning because of my inclination to be friendly and my desire to make the interviewee feel comfortable. But being comfortable in an interview is not the same as being comfortable in a college dorm room. Keep this in mind.

Some Parting Thoughts

Candidates of the future, you have been warned. Now that you know what bothers your interviewer, it's up to you to avoid these pitfalls. And, once you land the gig, consider reading this article about ways to make sure you get an offer to return. The cleverly named article was written by Ben Potts, an all-star summer associate who recently finished his first summer in our firm's summer-associate program. Take his advice, he writes from experience and his suggestions are dead-on.

Access to a Party’s Facebook Account During Discovery

Posted by Molly DiBiancaOn July 10, 2012In: Purely Legal, Social Media in the Workplace

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As tempting as it may be to believe, judges don’t always get it right. Every lawyer has seen an opinion that misapplies the law or applies the wrong law altogether. And maybe that’s why we get so giddy when a court really nails it, particularly when the issue is complicated or novel or the law unsettled. Allegheny Court of Common Pleas Judge hit one of these legal homeruns in a 20-plus-page decision issued last week in Trail v. Lesko. The unsettled legal issue that Judge R. Stanton Wettick addressed was the discoverability of social-media content. 

The case arose from a motor-vehicle accident, from which the plaintiff alleged to have been seriously injured. The parties both sought to have the other side produce Facebook posts and pictures.  Neither side complied and both parties filed motions seeking to compel their opponent to turn over his Facebook password and username.

Put differently, “Ask me to show you mine and I’ll ask you to show me yours.”

Plaintiff’s Requests for Access to Defendant’s Facebook Account

The defendant denied driving the vehicle at the time of the accident and alleged that he did not remember who had been driving the vehicle at the time.  The  plaintiff sought access to the defendant’s Facebook account, arguing that it could be “relevant in determining defendant’s whereabouts or in uncovering any potential witnesses who could shed lights on the events in question.” 

After making the plaintiff’s request, though, the defendant admitted in his written discovery responses that he was the driver at the time of the accident. The defendant also admitted that he had been intoxicated while driving. Thus, the court found that any information that might be available on Facebook was rendered “seemingly irrelevant.”  Moreover, the court explained, the defendant’s own admission about driving under the influence of alcohol would render any of the Facebook information irrelevant to a claim for punitive damages.

Defendant’s Requests for Access to Plaintiff’s Facebook Account

And, as is usually the case in litigation, what’s good for the goose is good for the gander.  In other words, the defendant responded to the plaintiff’s Facebook request by issuing a Facebook request of his own.  The plaintiff had alleged that he was “disabled or limited in his normal activities” and that his disabilities were “possibly permanent.”

So the defendant sought access to the plaintiff’s Facebook account on the grounds that the account may contain evidence of the “extent and severity” of the plaintiff’s injuries. The defendant supported his motion with pictures of the plaintiff “socializing” at a bar and “drinking at a party,” which the defendant had obtained from the publicly available portions of the plaintiff’s Facebook account.

The court was not persuaded, though, explaining that the plaintiff had not alleged that he was so disabled that he was unable to leave his home and that the pictures were not “inconsistent with plaintiff’s alleged injuries.”

Motions Denied: Unfettered Access to Accounts Unnecessary

The parties’ cross motions to compel both sought to have the Court require the other party to turn over his username and password to his Facebook account.  Judge Wettick rejected the idea, ruling that a blanket request for log-in information is just plain unreasonable. A party does not get free-reign access to non-public social-networking posts of his opposing party merely because he asks the court for it. To enable a party to roam around in an adversary’s Facebook account would result in the party to gain access to a great deal of information that has nothing to do with the litigation and [] cause embarrassment if viewed by persons who are not ‘Friends'.’”

Before a requesting party will be granted “access” to a Facebook account, the party must show a “sufficient likelihood” that the non-public postings would contain information that is relevant to the litigation that is “not otherwise available.”  Otherwise, the court held, Rule 4011(b), which protects against discovery that is unreasonably annoying or embarrassing, prohibits unfettered access to a social-networking site.

Brava, Judge Wettick, Brava!

The ruling in Trail is a refreshing example of well-reasoned legal analysis applied with common sense.  It is a bad idea for any person to voluntarily turn over his password to any online account to another person.  And it is an equally bad idea to request that a court facilitate such a practice. Yet, much to my disappointment, this is a practice that has become more common in the past few years, as courts struggle to deal with questions relating to discovery of social media and other forms of electronic evidence.  The opinion’s holding sets an important baseline for discovery of social-networking content.  Specifically, a litigant will not be ordered to turn over his password or other log-in information to an opposing party to enable that party to gain unfettered access to the litigant’s social-networking site.

Trail v. Lesko, No. GD-10-017249 (Allegheny C.P. July 3, 2012).