Tag: Social Media Legal Issues

A North Carolina court recently granted in part and denied in part a defendant’s motion for sanctions against the plaintiff for missing deadlines to respond to discovery requests. Subsequent to the filing of the motion for sanctions, the plaintiff produced documents that were illegible and failed to comply with ESI protocol. Plaintiff also failed to conduct a search of email accounts and a mobile phone, both of which clearly had data that was responsive to the discovery requests.

The Discovery Dispute

The North Carolina court had issued a prior order imposing sanctions on the plaintiffs, which required payment of expenses and set a 30-day deadline to comply with the discovery. This deadline was imposed when the plaintiffs did not propose a date themselves to the court.

Although the plaintiffs missed the court’s deadline, the defendant agreed to a month extension. No production, however, actually occurred. Since the date of the discovery order instructing the parties to resolve the dispute, the plaintiffs had four months to produce. At that point, the plaintiffs claimed it would take even more time to review more than 160,000 pages of responsive material and remove duplicates. They also noted that the counterclaim defendants would need to review the production. When the plaintiffs requested more time, the court denied the request and instead ordered the parties to meet and propose an agreed-upon discovery schedule.

The plaintiffs missed the first deadline and disclosed that they could not follow the proposed schedule. They also noted they could no longer afford to hire an electronic discovery vendor due to expense and that they had to review 160,000 documents — not 160,000 pages.

The Court’s Decision

The court noted that the plaintiffs’ failure to timely produce documents on dates that they chose was unacceptable. Although the plaintiffs pleaded at court hearings that they were inexperienced in the complexities of ESI discovery and that they needed to coordinate discovery production with counsel for counterclaim defendants, the court did not find either one as a valid excuse. The court issued sanctions reasoning that the defendant suffered prejudice and to ensure respect for the judicial process.

According to the American Bar Association (ABA), there are several things an attorney can do to avoid mishandling discovery during litigation. These include:

• Creating a realistic schedule and sticking to it;
• Starting discovery as early as possible;
• Dating, sourcing, and stamping each delivery of documents;
• Preparing a privilege log; and
• Understanding the new Federal Rules.

The case is State of North Carolina vs. AppyCity, LLC; Timothy S. Fields; Melissa Crete; and Daisy Mae Fowler a/k/a Daisy Mae Barber 2021 NCBC LEXIS 17 (N.C. Super. Mar. 3, 2021).

A lower court imposed sanctions on a lawyer who filed lengthy and frivolous filings in a dispute with his brother. The Atlanta-based 11th Circuit Court of Appeals upheld the sanctions for the Florida-based bankruptcy attorney. The pleadings, according to reports, were riddled with exclamation points, rants, and at one point even quoted Bugs Bunny.

The Case

In its December 15 unpublished per curiam opinion, the appellate court placed sanctions on the man. The behavior by the bankruptcy attorney included comments during a deposition telling opposing counsel to “shush, shush, shush” as well as frivolous filings, one of which included a haiku in a motion seeking reconsideration of a court ruling. The bankruptcy attorney further quoted Looney Tunes character Bugs Bunny when arguing that the sanctions motion against him was lacking specific allegations.

According to the opinion, the sanctions started from the attorney’s self-representation in litigation that began with a probate case and then moved into bankruptcy court. Initially appointed as the personal representative of his mother’s estate, the attorney was then removed by the court based on his brother’s request due to filing for bankruptcy and listing the brother as holding a non-priority unsecured claim. The brother, on the other hand, alleged that the debt was a result of the attorney converting the estate property for personal use and, therefore, was not dischargeable in bankruptcy court. The attorney claimed the bankruptcy court lacked jurisdiction; in response, his brother filed for sanctions.

Monetary Fines

At a sanction hearing, the bankruptcy court ordered the attorney to pay his brother nearly $3,000 in attorney’s fees. After attending a hearing on the underlying bankruptcy case, the brother again filed for sanctions. Ruling on the merits of the case, the bankruptcy court held that the attorney acted in bad faith throughout the litigation, awarding the brother nearly $10,000 in costs. According to the bankruptcy court, the attorney suffocated the docked with frivolous and unnecessarily long pleadings as well as asked repetitive and rude questions in depositions. The court further noted the attorney was wrong when he claimed the bankruptcy court lacked jurisdiction over his brother’s claim.

A district court noted that the bankruptcy court lacked authority to impose sanctions and, therefore, interpreted its order as a recommendation imposing the same sanctions. The attorney appealed. Not only did the 11th Circuit uphold the lower court’s sanctions, but placed additional sanctions of almost $3,500 for expenses incurred by the attorney’s brother for the appeal justifying its decision on the attorney’s baseless arguments, according to an article by Law360.

To protect your reputation from harm like this, check out Attorney Tips and How Lawyers can Improve Their Online Reputation.

It is no surprise to litigators in Georgia and across the country that unguarded messages are often sent by people that later come back to damage their cases. For this reason, discovery of these damaging messages are a top priority in civil lawsuits. Of note, people tend to post intimate information on their social media pages. For this reason, social media has become a particular target in civil litigation and lawyers can try to go after those of opposing parties and witnesses in two ways — through formal discovery procedures or self help.

Seeking Social Media Content Through Formal Discovery

Courts across the country have held that social media providers (think FaceBook, Instagram, Twitter, and LinkedIn, among others) are barred under the federal Stored Communications Act (SCA) from responding to civil subpoenas requesting social media content. That being said, some courts have ordered the opposing party to consent to the social media company’s disclosure agreement and have a consensual request sent to the provider. Without this workaround, social media content is only discoverable from the individuals who posted or received the information.

Notably, restricted social media content is neither private nor privileged in a legal sense, and those who delete or destroy accounts during litigation to avoid discovery have faced sanctions for spoliation of evidence. That being said, courts are hesitant to allow broad requests through all of a person’s private social  media content. Generally, discovery of social media content is allowed when the content directly sheds light on the disputed facts in the underlying lawsuit; if needed, the discovery can be subject to a protective order.

Using Self-Help to Access Social Media Content

It is true that there is no specific ethical rule that prohibits lawyers from looking online at publicly available social media content of opposing parties or witnesses. That being said, seeking private social media content that has been restricted to a limited audience can result in issues. An attorney can ask a friend of the opposing party or witness — meaning, someone who has been granted online access to the private content — to voluntarily share the information. This can not be done through misrepresentation, trickery, or any other unethical methods, though. Attorneys should not ask staff to engage in any activity that would be prohibited if the attorney were conducting it him or herself. Indeed, unauthorized access to private social media content may result in a claim under federal law — specifically, the SCA or Computer Fraud & Abuse Act (CFAA) or applicable state law.

It was only a matter of time until social media websites like Facebook, Twitter, Instagram, and LinkedIn would pose some complex legal issues.

In a 4-3 decision, the Florida Supreme Court held that a judge does not automatically need to recuse him or herself from hearing a case because of a Facebook friendship with one of the lawyers. A Florida law firm sought to force the recusal of a Miami-Dade Judge because she was Facebook friends with a lawyer representing a potential party to the lawsuit as well as a potential witness. The Court affirmed a decision last year by the state’s Third District Court of Appeal.

The Decision

The Florida Supreme Court reasoned that, in the most basic sense, an online social media friendship is a digital connection between people. The two may not be friends in the more traditional sense of the word. It is common for Facebook and other social media friendships to be more casual than traditional friendships. Likewise, they often are less permanent than traditional friendships. The Florida Supreme Court noted the connection on Facebook and other social media “may be as fleeting as the flick of a delete button.” The Court noted that a mere existence of a Facebook friendship between an attorney and a member of the judiciary – without more – does not reasonably equate a close friendship. Writing for the majority decision, Chief Justice Charles Canady ultimately concluded that no reasonably prudent person would be afraid that he or she could not receive an impartial and fair trial solely based on the fact that a judge and an attorney were Facebook friends.

Justice Jorge Labarga, concurring, strongly urged the judiciary to not participate in Facebook. Justice Barbara Pariente dissented, stating she would adopt a strict rule mandating that judges recluse themselves in such circumstances.

Past Cases

The Florida Supreme Court’s decision falls in line with other Florida precedent addressing the issue of traditional friendships. Under Florida law, the mere allegation of a friendship between a member of the judiciary and an attorney or a litigant, in and of itself, is not sufficient for disqualification.

Judges should not friend lawyers on social media if they appear before them in court, according to advice from the Florida Judicial Ethics Advisory Committee (FJEAC). The Florida Supreme Court said, however, that the FJEAC position is in the minority. The Court went so far as to note that the committee’s concern regarding friendships on social media sites to be “unwarranted.”