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Publications:
E-Discovery Update - October 2010
10/26/10
Additional author: Heidi Goldwater, Litigation Technology Manager
Contents
Want to Subpoena Google? Not so Fast.
By Richard H. Tilghman IV
The prevailing view in civil litigation is that all electronic communications are subject to discovery, including information held by social networking sites and e-mail service providers. It stands to reason, then, that a litigant should be able to freely subpoena relevant information from Google or Facebook, right? Not exactly.
The Stored Communications Act, 18 U.S.C. § 2702, generally prohibits an electronic communication services provider from divulging the contents of any communication in electronic storage. Under the Stored Communications Act, companies such as Google and Facebook can be held liable for divulging the electronic information of their users in violation of the act. As such, several courts have quashed subpoenas that seek the content of communications stored by providers of electronic communication services.1
Given the potential for highly relevant information to be held by e-mail service providers and social networking sites, several courts have fashioned a remedy for litigants seeking information from these entities. Under the Stored Communications Act, a service provider may disclose the content of electronic communications “with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscriber in the case of remote computing service.”2 Therefore, courts have allowed disclosure of information from third-party service providers with the consent of the user. And, since Rules 34 and 45 of the Federal Rules of Civil Procedure authorize courts to require production of any information within a party or third-party’s “possession, custody, or control,” courts have held that a person can be compelled to provide the consent necessary for disclosure under the Stored Communications Act.3
Given the courts’ interpretation of the Stored Communications Act, it makes little sense for a civil litigant to subpoena companies like Google and Facebook in order to obtain information about a user. The Stored Communications Act likely precludes service providers from complying with the subpoena, at least as to the user’s private communications. The better course is to request the user’s consent for the release of the relevant information. If the party or third-party refuses to consent, the court should be able to compel consent under Rule 34 or Rule 45. With that consent, the service provider should release the information to the user, which can then be turned over to the requesting party.
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1 See, e.g., In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va. 2008).
2 18 U.S.C. § 2702(b)(3).
3 See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008).
Courts and Lawmakers React to Social Media Use During Jury Trials
By Emily M. Dierberg
Courts are encountering new challenges in the wake of social networking and blog websites, especially in the context of a jury trial. When jurors are impaneled, the judge instructs them of their obligations to keep the trial details confidential, until after the verdict. It is difficult however for courts to police the jurors’ conduct in this regard. Jurors, like the rest of the public, have technology at their fingertips. One can blog or post a comment on Twitter from any PC or even a cell phone. Those posts are available for anyone in the user’s network to view.
Courts are increasingly tailoring their jury instructions to address this issue, and are specifically instructing jurors not to discuss the trial via any electronic medium. In fact, the Judicial Conference of the United States, the policy-making body of the federal courts, released model jury instructions in late January 2010, addressing this problem.
The instruction is as follows:
You may not communicate with anyone about the case on your cellphone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube.1
Instances of jurors ignoring that instruction, however, are on the rise.2 For example, in United States v. Fumo, the defendant and state senator, Vincent Fumo, was convicted of mail and wire fraud in a scheme to defraud the state senate. He moved for a mistrial based on one juror’s postings on his Twitter and Facebook accounts and personal web page during the trial.3 The court disagreed finding the statements were innocuous and provided no information about the trial or his thoughts of the trial. The juror also posted that the verdict was about to be announced, but this again did not disclose any case details. His statements about the facts of his jury service were not prohibited. Accordingly, the court found juror misconduct did not prejudice Fumo, and his motion for mistrial was denied.4
As courts continue to face these issues, new case law and rules are developing to address them. As in Fumo, courts typically will not order a mistrial unless the proponent can demonstrate substantial juror misconduct resulting in prejudice.5
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1 http://www.wired.com/threatlevel/2010/02/jurors-stop-twittering/
2 See e.g., United States v. Siegelman, No. 2:05-cr-119-MEF-CSC, 2007 WL 1821291 (M.D. Ala. June 22, 2007); Commonwealth v. Guisti, 449 Mass. 1018 (2007) (juror e-mail); People v. McNeely, No. D052606, 2009 WL 428561 (Cal. Ct. App. Feb. 23, 2009) (juror blogging); State v. Goehring, No. OT-06-023, 2007 WL 3227386 (Ohio Ct. App. Nov. 2, 2007) (juror blogging); Gregoire v. City of Oak Harbor, No. 58544-4-I, 2007 WL 3138044 (Wash. Ct. App. Oct. 29, 2007) (juror blogging).
3 United States v. Fumo, 2009 WL 1688482 (E.D. Pa. June 17, 2009).
4 See also People v. Ortiz, 2009 WL 3211030 (Ct. App. 2d Dist. Cal. Oct. 8, 2009), (jury foreman’s discussion of the case on an internet blog during trial, including criticisms of the attorneys, prospective jurors and the American judicial system, were devoid of any discussion about the particulars of the case, did not indicate juror had pre-judged the case, and appellant thus suffered no prejudice from those entries.)
5 See e.g., United States v. Kemp, 500 F.3d 257, 301 (3d Cir. 2007).
Qualcomm Revisited
By Lisa C. Sullivan
This spring, attorneys in California undoubtedly breathed a sigh of relief. In revisiting its earlier e-discovery sanctions order, the court in Qualcomm Inc. v. Broadcom Corp., (S.D. Cal. 05CV1958), declined to impose sanctions on the attorneys because it found no evidence of bad faith.
Readers of this newsletter may be familiar with the original Qualcomm decision; the first issue was devoted entirely to Qualcomm. In the original proceedings, Magistrate Judge Major not only required Qualcomm to pay over $8 million to its opponents in attorneys’ fees, but also sanctioned counsel for failing to conduct a reasonable inquiry into the adequacy of its client’s document production. The latter sanctions were vacated by the district court on the grounds that Magistrate Major had not provided the lawyers an adequate opportunity to defend themselves.
In the recent opinion after the remand, Magistrate Major found that the new evidence presented to her indicated that the attorneys had “made significant efforts to comply with their discovery obligations” and “did not act in bad faith.” For example, the attorneys “did make repeated efforts to verify” that discovery responses were accurate.” As a result, Magistrate Major declined to impose sanctions.
Does Qualcomm relieve any party or lawyer from e-discovery obligations? Hardly. First, Qualcomm’s approximate $8.5 million payment of attorneys’ fees was not appealed. No party should want to risk such a penalty.
Second, Magistrate Major still found “that this massive discovery failure resulted from significant mistakes, oversights, and miscommunication on the part of both outside counsel and Qualcomm employees.” The “major errors” mentioned by the Court include: (1) failure to meet in person with the client to discuss document collection; (2) failure to understand how the client’s computer system was organized, so as to learn where relevant documents might be stored; (3) a breakdown in the chain of command for oversight of the document production; (4) “an incredible lack of candor” by the client; and (5) inadequate follow-up to contradictory evidence.
Rather, Qualcomm can be used as a guide for what parties and their lawyers should do when litigation starts to ensure that all relevant documents – electronic or not – are produced. The lessons of the original Qualcomm decision still apply: A party ignores e-discovery at its peril.
Tech Corner: Are You on Facebook or Twitter (or Both)? Is Your Privacy Protected?
By Heidi Goldwater, Litigation Technology Manager
Not by default! These websites will share your information with other users and third parties unless you specifically change the security settings that are initially in place when you set up the account. Spending five minutes or less to change a few default settings can save you a lifetime of unwanted shared data. These websites alter their security settings each time they make a system upgrade. It is important to log on to your accounts and select either “Privacy Settings” or “Security Settings” which are available from your profile or home page.
Here are a few items to consider when choosing your security settings or using these social networking applications.
Facebook - Personal Information and Your Profile
Is your profile public? Can anyone search for you and see your personal information? Information such as your address, employer, e-mail address and phone numbers are just a few items that can appear on your profile page. Often, users will leave their profile public and then include enough personal information that inadvertently makes them a target for criminal activity and identification theft. A good rule to remember is, if you post information about yourself, secure it. Options are to make your personal information visible to “everyone on Facebook”, “friends”, or “friends of friends”.
You can also control who can post to your “wall.” Use caution when mixing personal and professional relationships on Facebook.
Photo “tagging” is another potential pitfall on Facebook. While you may have properly secured all of your information, a “friend” who fails to set his or her security settings and leaves everything open to the public can cause problems. For example, a “friend” can post pictures and then “tag” you in them. So while a Facebook search of your name may not produce your profile information if properly secured, it will find all those photos where others have “tagged” you. To prevent this you can conduct a search for yourself and “untag” photos that include you.
The most recent feature of Facebook is called “Facebook Places.” When accessing the “places” application users can “check in” and post their location. While this may not seem dangerous, if you do not set your security settings, everyone in the Facebook universe will be able to view your location. In the security settings, look for “places I check in” and you can then secure your options. On Facebook, “everyone” is the default setting. You must always change the default setting in order to secure this information.
Twitter
Unlike Facebook, Twitter has fewer settings for which you need to be concerned. The two most important are found on the main page under “Settings”.
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There is a heading called “tweet location” with the option of “add a location to your tweets.” Uncheck this box if you do not want people to know the location from which you are posting.
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Tweet Privacy – there is an option to “protect my tweets.” This allows you to control who is able to view your postings.
If you want to make sure your personal privacy is completely protected, you should not use social networking sites. And even if you choose not to use Facebook, someone can always tag you in a photo without your knowledge. With some common sense and a few simple settings changes you can protect yourself.
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