Social Media Discovery Ethics in Legal Practice
Understanding the ethical considerations of utilizing social media in legal proceedings is crucial for competent representation. Lawyers must gather pertinent information from social media responsibly to uphold professional conduct and avoid unnecessary complications in legal matters.
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Image result for American inn of court DANIEL WEBSTER-BATCHELDER AMERICAN INN OF COURT Come and Get it: Subpoenas and the Abuse of Subpoenas Table 2 February 7, 2018
Table of Contents Hypothetical 3-5 Subpoena .6 Schedule of Topics 7-8 Topic 1:Use of Social Media in Third Party Discovery .9-16 Topic 2: Interstate Discovery in State Court Actions 17-26 Topic 3: : Third Party Corporate Representative Depositions 27-34 Topic 4: Criminal Discovery in New Hampshire State Court: Subpoenas and Other Issues ...35-38
Fact Recap - Way Down in Missouri ABC builds hunting cabins for Bulger in New Hampshire and Kentucky Bulger defames ABC online over a high bill for the Kentucky cabin ABC sues Bulger in its home state of Missouri for defamation
Way Down in Missouri Bob s Sawmill Timber Products, LLC is a local contractor that helped build the NH cabin ABC wants to know more from Bob s Sawmill: 1. Intel by liking Bob s Sawmill Facebook page 2. Depose Bob s Sawmill owner, Bob Sawmill 3. 30(b)(6)-style deposition of Bob s Sawmill
Use of Social Media In Third Use of Social Media In Third Party Discovery Party Discovery
Knowledge of Social Media and the Relevant Knowledge of Social Media and the Relevant Technology Is Part of A Lawyer s Duty of Competence Technology Is Part of A Lawyer s Duty of Competence represent a lawyer competently and diligently, including the duties to: New Hampshire Rules of Professional Conduct 1.1 and 1.3 require a lawyer to Gather sufficient facts about the client s case from relevant sources. Rule 1.1(c)(1); Take steps to ensure proper preparation. Rule 1.1(b)(4); and Acquire the skills and knowledge needed to represent the client competently. Rule1.1(b)(1) and (b)(2). Va. 295 (2013) [failure to understand relevant technology, specifically Facebook, resulting in baseless hacking accusations and needless motion practice, can result in an award of sanctions]. See, Lester v. Allied Concrete Co., 80 Va. Cir. 454 (Va. Cir. Ct. 2010), aff d 285
Ethical Limits On Informal Social Media Discovery Ethical Limits On Informal Social Media Discovery The duty to investigate social media is limited by other ethical obligations, including the following duties: Be truthful and fair to opposing parties and counsel. Rule 4.1; Avoid communicating with a party known to be represented by counsel about the subject of the representation unless that counsel consents or communication is permitted by court order or law. Rule 4.3; Take no action, including an investigation whose primary purpose is to embarrass, delay or burden a third person. Rule 4.4; and Avoid conduct that involves dishonesty, deceit or misrepresentation. Rule 8.4(c). person. Rules1.2(d), 5.3(b) and (c) and 8.4(a). A lawyer cannot avoid these limitations by conducting the investigation through a third
A Lawyer May View A Witness Unrestricted A Lawyer May View A Witness Unrestricted Social Media Accounts Social Media Accounts Twitter, are viewable to all members of the same social media group and thus, public for all practical purposes. Unrestricted Social Media Accounts, such as Facebook and constitute communication with that person as contemplated by Rules 4.2 and 4.3. Viewing a witness s social media accounts does not platform s terms of use agreement. See, New Hampshire Bar Association Ethics Advisory Opinion #2012-13/05 A lawyer should be mindful of and adhere to the social media
A Lawyer Must Accurately Identify Herself A Lawyer Must Accurately Identify Herself and Her Involvement In Litigation to Access Restricted and Her Involvement In Litigation to Access Restricted Social Media Accounts Social Media Accounts Failure to properly identify the lawyer and her role in the litigation may mislead the witness and constitute a false statement of material fact and/or deceitful conduct. #2012-13/05 (noting split of opinion on this issue, citing, e.g., NY City Bar, Ethic Op. 2010-2). See, New Hampshire Bar Association Ethics Advisory Opinion
A Lawyer Cannot Use an Investigator or Staff Member A Lawyer Cannot Use an Investigator or Staff Member to Access Restricted Social Media Accounts to Access Restricted Social Media Accounts The lawyer s investigator or staff member is subject to the same ethical constraints as the lawyer. Rules 5.3(b) and (c) and 8.4(a). Opinion #2012-13/05. New Hampshire Bar Association Ethics Committee Advisory
A Lawyer Cannot Properly Seek to Access A Lawyer Cannot Properly Seek to Access Restricted Social Media Accounts of a Witness Restricted Social Media Accounts of a Witness Represented by Counsel Represented by Counsel ligation, she cannot seek access to the restricted social media accounts of a person or party represented by counsel in that litigation. See Rule 4.2. Even if a lawyer Properly Identifies herself and her role in the #2020-13/05. New Hampshire Bar Association Ethics Advisory Opinion
Other Resources Other Resources Social Media Evidence How to Find it and How to Use it ABA Annual Meeting, August 8-12, 2013. Discovery, 17 SMU Sci. and Tech. L. Rev. 581 (2014). Agnieszka McPeak, Avoiding Misrepresentations in Informal Social Media of the New York State Bar Association Updated May 11, 2017. Social Media Ethics Guidelines of the Commercial and Federal Litigation Section
Bob Sawmill Subpoena Bob Sawmill Subpoena ABC wants to depose Bob Sawmill for its MO lawsuit ABC attorney in MO prepares and signs the subpoena Bob served in hand by Coos Sheriff Served with check for correct attendance and travel fees
Uniform Foreign Depositions Act (UFDA) Whenever any mandate, writ or commission is issued out of any court of record in any other state, territory, district, or foreign jurisdiction, or whenever upon notice or agreement it is required to take testimony of a witness or witnesses in this state, witnesses may be compelled to appear and testify in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony in proceedings pending in this state. This chapter shall be so interpreted an construed as to effectuate its general purposes to make uniform the law of those state which enact it.
Depositions in NH for Out of State Actions RSA 517-A Uniform Foreign Depositions Law New Hampshire enactment of UFDA Witnesses may be compelled to appear for deposition using NH subpoena procedures so long as out-of-state party holds writ, mandate, or commissioner from foreign court, or if parties agree. RSA 517:18 Foreign Commissioners appointed by foreign courts or countries have same powers as justices of the peace to compel attendance of deposition witnesses and production of papers.
Bob Sawmill Subpoena Probably enforceable If approved by court or agreed to by litigants, ABC can use UFDA in NH. Properly served under NH law with attendance and travel fees. If commissioner appointment in MO, then attorney able to sign subpoena just like a justice of the peace. RSA 517:18.
Obtaining Discovery Outside NH Obtaining discovery in Vermont Obtaining discovery in Massachusetts
For Vermont Uniform Interstate Depositions and Discovery Act Dispenses with commissioners and letters rogatory Prepare and present a subpoena complaint with trial state to clerk of UIDDA discovery state Clerk will then issue subpoena compliant with laws of UIDDA state Vermont R. Civ. P. 45 also requires certain notices to deponent: Right to seek to quash subpoena Names of all counsel and pro se parties in out-of-state action
For Massachusetts Two possibilities, but really only one option: MGL c. 233 45 is similar to UFDA, but cannot be enforced through contempt finding. MGL c. 233 11 is enforceable through contempt finding, but: Letters rogatory (or commission) from trial court; and Judically approved subpoena issued in Massachusetts, meaning an action must be opened.
For Massachusetts To proceed under MGL c. 233 11 Must obtain commissioner appointment from Superior Court RSA 517:15 Appointment. Upon petition the superior court may appoint some suitable person as commissioner to take depositions outside this state, for use in causes pending in or returnable to said court. Who to appoint commissioner? Stenographer in foreign jurisdiction? Yourself?
For Massachusetts What if in NH circuit court? RSA 517:15 contemplates only appointments for actions pending in superior court Unsettled, but perhaps superior court may still use letters rogatory to assist litigants in circuit courts requiring out-of-state discovery
Third Party Corporate Representative Depositions Pursuant to Fed. R. Civ. Pro. 30(b)(6) and Superior Court Civ. R. 26(m)
EXHIBIT A Rule 26(m) Deposition Topics opinions concerning the following topics: Please prepare one or more corporate representatives to testify to Your knowledge of and/or 1. Bulger, on the other, from 1/1/1999 to the present. The details of every transaction entered into between You on the one hand, and James Joseph 2. 1/1/1999 to the present date. All communications between You on the one hand, and James Joseph Bulger, on the other, from 3. 1/1/2015 to the present date. All communications between You and any other person or entity concerning ABC Corp. from 4. the one hand, and James Joseph Bulger on the other. 5. Your opinions concerning the quality of workmanship by ABC Corp. and any of its subcontractors on the residential property known as "Blackwater Manor," located at 555 Magalloway Road in Pittsburgh, New Hampshire. All banking records relating, either directly or indirectly, to any financial payments to or from you on 6. or any other project You have ever worked on on Mr. Bulger s behalf. All details concerning the federal, state or municipal permits issued for the Blackwater Manor Project
7. All online communications or postings by You or any of Your employees or agents concerning, relating or pertaining to ABC Corp. This topic shall be construed to include, but shall not be limited to, all Social Media posts or communications made by, received by, or viewed by You or any of Your agents or employees concerning any construction project in which You have been involved from 1/1/1999 to the present date. 8. All online communications or postings You or any of Your employees or agents with, concerning or relating to James Joseph Bulgur or any company or entity in which Mr. Bulgur holds an ownership interest. This topic shall be construed to include but shall not be limited to, all social media posts or communications made by you , received by, or viewed by You or any of Your agents or employees concerning Mr. Bulgur, any property owned by Mr. Bulgur or any company or entity in which Mr. Bulgur holds an ownership interest. 9. Your knowledge of and/or opinions concerning the quality of workmanship by ABC Corp. and any of its subcontractors on any construction project about which You are aware. 10. All details of all of Your work on improvements to Blackwater Manor from 1/1/1999 to the present date. 11. All details of all work done by any other person to improve Blackwater Manor from 1/1/1999 to the present date.
CAN THEY DO THAT? In a word, yes. 8A Wright & Miller Federal Practice & Procedure at 2103 ( The Rule 30(b)(6) procedure is not limited to corporations and other organizations that are parties to the suit and may be used also with regard to organizations that are not parties ). See also Jenks v. NH Motor Speedway, Inc. 09-cv-205-JD, 2011 WL 839709 at *3 (D.N.H 2011) (McCafferty Magistrate J.) ( Rule 30(b)(6) permits plaintiff to obtain this information from a nonparty, corporate entity via a subpoena to that nonparty corporation ). New Hampshire Superior Court Civil Rule 26(m), the state court counterpart to Fed. R. Civ. Pro. 30(b)(6), is still relatively new, but because of the Advisory Committee on the Rules Comment, we know that [t]he jurisprudence used by the federal courts interpreting cognate Federal Rule of Civil Procedure 30(b)(6) should be used as a guide in the interpretation of Rule 26(m).
Is there anything in particular you need to do in order to obtain a third party corporate representative deposition? First of all, you will need to issue a subpoena a notice of deposition directed to a non-party is insufficient to compel attendance. See Cleveland v. Palmby, 75 FRD 654, 656 (W.D. Okla. 1977) (citing numerous cases for the proposition that [w]here a deponent is not a party to the action he can be compelled to appear at a deposition examination only by the issuance of a subpoena ) andMitsui & Co., Inc. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62, 65 (D. Puerto Rico 1981) (noting that individual employees of a corporate party who are not regarded as speaking for the corporation should be treated in the same way as any other witness. His presence must be obtained by subpoena rather than by notice and sanctions cannot be imposed against the corporation if he fails to appear[.] ). See also Nordica S.p.A. v. Icon Health & Fitness, Inc., No. 06-cv-451-PB, 2009 WL 972520 (D.N.H. Apr. 10, 2009) (Discussing notices directed to individual former employees of a corporate party, and noting that [n]on-party, non-employees are not subject to deposition on notice only. )
Second, your subpoena and notice must comply with the requirements of the rules affecting a.) corporate depositions and b.) subpoenas generally Your notice must list the topics for examination with reasonable particularity. This is necessary to allow the responding corporation to identify the person who is best situated to answer questions about the matter, or to make sure that the person selected to testify is able to respond regarding that matter. 8A Wright & Miller Fed. Practice & Procedure 2103. Resist the temptationto use the phrase including but not limited to when you are delineating your corporate representative topics. Many courts have rejected deposition topics that used this language because it makes it impossible for a responding party to know the outer limits of the topic, and so to comply with the requirement that they produce a knowledgeable witness or witnesses. E.g., Reed v. Bennet, 193 FRD 689, 692 (D. Kansas 2000).
Moreover, you need to be painstakingly clear about how a corporate representative deposition works This is built right into the language of Rule 30(b)(6) and 26(m): A subpoena shall advise a non-party organization of its duty to make such a designation [of one or more officers, directors, managing agents, or other natural persons consenting to testify on the corporation s behalf] In case there was any doubt, the Supreme Court s Order Amending Rule 30(b)(6) in 1971 resolves it: The amendment clarifies the procedure to be followed if a party desires to examine a non- party organization through persons designated by the organization as the deponent and may indicate the matters about which discovery is desired. In that event, the non-party organization must respond by designating natural persons, who are then obliged to testify as to matters known or reasonably available to the organization. To insure that a non-party organization that is not represented by counsel has knowledge of its duty to designate, the amendment directs the party seeking discovery to advise of the duty in the body of the subpoena. 52 F.R.D. 79, 81.
FRCP 45 adds some additional requirements If your case is pending in federal court, it is important to note that the requirements and limitations of Rule 45 apply: You cannot subpoena an organization to provide deposition testimony more than 100 miles from its place of business. SeeEstate of Klieman v. Palestinian Authority, 293 FRD 235, 239-40 (D.D.C. 2013) ([A]llowing a subpoena served pursuant to Rule 30(b)(6) to evade the proscriptions of Rule 45(c) would render Rule 45 surplusage and subject nonparties to the same level of burdensome discovery that can be imposed on a party[.] ). Keep in mind that Rule 45(c)(1)(A) defines the geographic scope of the Court s subpoena power for deposition witnesses the deposition must take place within 100 miles of where the person resides, is employed, or regularly transacts business in in person This has been held to mean that non-party corporate representatives can only be deposed within 100 miles of their place of business.
New Hampshire Law on Deposition Practice New Hampshire courts do not have any geographical limitation on the ability to take depositions. See RSA 516:4-:5. However, you should keep in mind that unlike the federal courts, which ordinarily give parties 1, 7-hour day for each person designated to testify in response to a corporate representative deposition notice, the Superior Courts have a presumptive 20-hour limit for all depositions taken in a case. See Super. Ct. Civ. R. 26(a).
Courts Are Sensitive to the Burdens that Discovery Places on Non-Parties A trial court confronted with a subpoena to a non-party employs a balancing test to determine if the requesting party s need for discovery outweighs the burden on the non-party of producing the discovery sought. See Heidelberg Americas, Inc. v. Tokyo Kikai Seisakusho, Ltd. 333 F.3d 38, 41-42 (1st Cir. 2003). The Court will examine, among other factors, the availability of discovery from other sources in assessing whether a request places an undue burden on a non-party. See Gill v. Gulfstream Park Racing Ass n, Inc. 2005 DNH 110, 2005 WL 1711119 at *2 (D.N.H. 2005). In conducting the undue burden balancing test, concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs. Heidelberg Americas, 333 F.3d at 41-42 (quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)) (emphasis added).
State Courts and Non-Party Discovery It is clear that non-party discovery is permitted in state court actions. Robbins v. Kalwall Corp., 120 N.H. 451, 453 (1980). In affirming that discovery of non-parties is available in our Courts, the Robbinscourt emphasized that open-ended fishing expeditions are not permitted. Id. (citing former Superior Court Rule 35(c)(2)). Other than dicta in Robbins, there is no binding case law meaningfully discussing the scope of discovery that can be taken of non-parties under Superior Court rules. Despite the comment to Superior Court Civil Rule 26(m) noting that Rule 30(b)(6) caselaw will be germane to the interpretation of 26(m), many of the limitations on 30(b)(6) subpoenas in federal cases are as a result of Rule 45. Although Superior Court Civil Rule 29(a) mirrors some of the language of FRCP 45, there is as yet no appellate case law interpreting it.
Criminal Discovery in New Hampshire State Court: Subpoenas and Other Issues
Gagne in sexual assault cases and Amirault for police personnel records State v. Gagne, 136 N.H. 101 (1992) A defendant may seek in camera review of complaintant s records if he can establish a reasonable probability that the records contain information that is material and relevant to his defense. Material reasonably necessary to defense may be produced State v. Amirault, 149 N.H. 541 (2003) and R.S.A. 105:13-b In camera review permitted if trial court rules that probable cause exists to believe that the file contains relevant evidence Upon review, portions of the file containing evidence relevant to the criminal case may be produced
Lewandowski and Rule 17(b) Subpoenas Does Petition of State (State v. Lewandowski), 169 N.H. 340 (2016), change subpoena practice in New Hampshire criminal cases? Facts: Trial court compelled state to obtain information from third parties concerning complainant in order to provide it to the defendant. Holding: Supreme Court reversed, holding trial court cannot compel State to obtain evidence from third parties for the defendant. In rejecting the defendant s argument that there were not alternative means for obtaining the evidence, Court noted that New Hampshire Rule of Criminal Procedure 17(b) permit[s] [defendant] to serve on the complainant or other third parties a subpoena duces tecum. The Court further stated that serving a subpoena is at least one means available to [defendant] under the law despite defendant s claim that serving a subpoena is not the practice widely utilized in our trial courts.
Other Common Criminal Discovery Topics Medical Records: In re Search Warrant for Medical Records of C.T., 160 N.H. 214 (2010) Produce to court first for in camera review Permit parties opportunity to object and request a hearing. Materials protected by qualified privilege: State v. Siel, 122 N.H. 254 (1982) Availability of reasonable alternatives Relevance of information Possibility information would affect verdict
