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Attorney–Client Privilege Challenges y g gWith Social Media and E‐CommunicationsEffective Strategies for Preserving the Privilege and Maintaining Confidentiality

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, JULY 7, 2011

Today’s faculty features:

David A. Sorensen, Partner, Hinshaw & Culbertson, Chicago

Steven R. Paradise, Partner, Vinson & Elkins, New York

Jonathan Evan Goldberg, Partner, SNR Denton, New York

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Attorney-Client Privilege Challenges With Social Media Challenges With Social Media and E-Communications

Effective Strategies for Preserving the P i il d M i t i i C fid ti litPrivilege and Maintaining Confidentiality

David Sorensen

Greater Benefits and RisksGreater Benefits and RisksMore technological outlets = more ways for client to waive privilegeclient to waive privilegeLenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (ND California 2008)Holmes v. Petrovich Development Co., 191 Cal. App. 4th 1047 (Cal 3rd App. Dist. 2011 )Stengart v Loving Care Agency Inc 990 A 2d Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (N.J. 2010) Scott v. Beth Israel Med. Center, Inc., 847 N.Y.S.2d 43641 (N.Y. Sup. 2007)Terraphase Engineering, Inc. v. Arcadis, U.S., Inc (disqualification)

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Inc. (disqualification)

Part I AgendaPart I Agenda

Waiver A. Who can waive the privilege?B. Implied waiverpC. Boilerplate disclaimers D. Security of communicationD. Security of communicationE. Inadvertent disclosure

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A-C Privilege: 4 Basic RequirementsA C Privilege: 4 Basic Requirements

(1) a client;( )(2) a lawyer;(3) a communication in aid of giving or (3) a communication in aid of giving or seeking legal advice; and(4) a reasonable and contin ing (4) a reasonable and continuing expectation of confidentiality. See, e.g., Restatement (Third) of the Law: Law Governing Lawyers 68-72 (2000)

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Waiver: The BasicsWaiver: The BasicsA lawyer’s ethical duty of confidentiality is b d th th id ti tt li t broader than the evidentiary attorney-client privilegeMRPC 1.6MRPC 1.6Only communications (not facts) are privilegedLaw is similar, but not necessarily identical, from one state to another or even from one federal one state to another or even from one federal court to another. See, e.g., In re Spalding Sports Worldwide, Inc., 203 F.3d 800 (Fed. Cir. p , , (2000) May be viewed as an obstacle to the truth

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A Who Can Waive the PrivilegeA. Who Can Waive the Privilege

Client owns the privilegeCorporate context: privilege generally belongs to corporation and ability to waive privilege usually exercised by officers/directors of corporationVoluntary disclosure of confidential information t thi d ti d t i il S I to third parties destroys privilege. See, e.g., In re Grand Jury Proceedings October 12, 1995, 78 F 3d 251 254 (6th Cir 1996)F.3d 251, 254 (6th Cir. 1996)Involuntary disclosure may destroy privilege too

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B Implied WaiverB. Implied Waiver

Does not involve the actual disclosure of privileged communications, but rather a client's or lawyer's reliance on the fact of ythe privileged communication to gain some advantageg

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Implied Waiver IIImplied Waiver II

Most courts apply "subject matter" waiver pp y jdoctrine — requiring party who discloses some privileged communication (or relies p g (on some privileged communication) to reveal all privileged communications on p gthe same subject matter Rationale: cannot be both sword and Rationale: cannot be both sword and shield

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Resolving Implied WaiverResolving Implied Waiver

Fairness typically dictates the resultExample -- client cannot expect to defend by relying on a helpful letter from lawyer without involving all communications with lawyer on the same topicS t l l thi d t i t th Some courts also apply this doctrine to the mistaken disclosure of privileged documents. VLT Inc v Lucent Techs Inc 54 Fed R Serv VLT Inc. v. Lucent Techs. Inc., 54 Fed. R. Serv. 3d (Callaghan) 1319 (D. Mass. 2003).

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C Boilerplate DisclaimersC. Boilerplate Disclaimers

The “predictable proliferation of yada-p p yyada”If you have read this, please forget itIf you have read this, please forget itIf no one pays attention, why bother?

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Disclaimers Are Not All BadDisclaimers Are Not All Bad

Privilege notices help establish and preserve privilege --g p p p gnot having one can contribute to waiving privilegeIf it is not clearly privileged, consider removing the disclaimerdisclaimerWord the notice to apply to recipients who were not “intended“If t l i il d t thi lik "PRIVILEGED AND If truly privileged, put something like "PRIVILEGED AND CONFIDENTIAL" ahead of the text -- before the electronic horse is out of the electronic barnSalutations at the beginning of the e-mail, such as "Dear Ms. Client and Mr. Client II" to identify the intended recipients

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p

Disclaimers Are Not All Bad IIDisclaimers Are Not All Bad IIBe specific when filling in the "subject" line for the e-mailIf extra sensitive place a short privilege alert in the beginning If extra sensitive, place a short privilege alert in the beginning of the "Subject" line of the e-mail, e.g. "ATTORNEY CLIENT PRIVILEGE" – in court, the subject line will be one of the primary ways in which the e-mail will be describedEthically (and for your reputation), be correct on the law, or implied statements of the law – do not make baseless threatsBe polite -- deletion and non-use of inadvertently sent e-mails by non lawyers is largely voluntaryby non-lawyers is largely voluntaryWord the notice so that it includes attachmentsUse e-mail groups to set up distribution lists for the projects you're working on -- minimize auto-fill problems for e-mails you re working on -- minimize auto-fill problems for e-mails going to large numbers of recipients

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D Security of CommunicationD. Security of Communication

Talk with the clientExplain risks and benefitsGet on the same pagep g

TechnologyEncryption remote wiping etcEncryption, remote wiping, etc.Time and place considerationsPolicies and proceduresPolicies and proceduresKnow the systems and the people involved

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E Inadvertent DisclosuresE. Inadvertent DisclosuresThe privilege can be waived voluntarily or involuntarilyinvoluntarily.Any communication of privileged information which does not involve client/corporate counsel or their agents (investigators, accountants or other consultants working under the direction of the attorneys) will waive the privilege.y ) p gAccidental or inadvertent disclosure is usually held to be a complete waiver. See, generally, Underwater Storage Inc v U S Rubber Underwater Storage. Inc. v. U.S. Rubber Company, 314 F.Supp. 546 (D.D.C. 1970)This is not an absolute rule.

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When Will Waiver Be Found?When Will Waiver Be Found?

When a lawyer or client fail to take proper y p pprecautions, or are negligent in their attempts to safeguard the confidentiality of p g ythe inadvertently disclosed material, a waiver will likely be foundySee Harp v. King, 835 A.2d 953, 967 (Conn. 2003); Gray v. Bicknell, 86 F.3d (Conn. 2003); Gray v. Bicknell, 86 F.3d 1472, 1483 (8th Cir. 1996) (discussing the different tests used)

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different tests used)

Three ApproachesThree Approaches

Lenient must be knowingly waivedLenient – must be knowingly waivedStrict – inadvertent or not = too badMiddle Ground (majority of states)

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Factors to Decide Waiver (Bicknell)Factors to Decide Waiver (Bicknell)

Reasonableness of the precautions taken to prevent the disclosure Extent of the document productionNumber of inadvertent disclosuresPromptness of measures taken to rectify p ythe disclosureWhether the overriding interest of justice g jwould be served by relieving the party of its error

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ABA Model Rule 4 4(b) (2002)ABA Model Rule 4.4(b) (2002)“A lawyer who receives a document relating to the representation of the lawyer’s client and knows or representation of the lawyer s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender”Wh h l h i i di d d Whether a lawyer who receives a misdirected document is required to take additional steps, such as returning the document to the sender, is beyond the scope of the M d l R lModel RulesIf the law in a particular jurisdiction does not require a lawyer to return a document inadvertently sent to her, y y ,“the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer”

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y

Special Waiver Issues in the Electronic WorldElectronic World

Inadvertent production: ABA Formal Opinion 05-437 (2005); ABA Model Rule 4.4(b)

Promptly notify sending lawyerO h i l f l h l ' Other issues left to state law or the lawyer's professional judgmentFRE 502FRE 502

Metadata:What is it?What is it?What are your obligations?

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TakeawaysTakeaways(After hundreds of years) the law of attorney-client privilege still is not fully developed -- what is clear:y pAttorneys owe clients a broad duty not to reveal or make other inappropriate use of information received from or about their clientsAtt th i li t d t t t t i ti f Attorneys owe their clients a duty to protect communications from potential third party discovery by seeing to it that their communications are subject to attorney-client privilege when it is practical to do sopWhile strong, both the broader duty to protect client information and the duty to make use of attorney-client privilege are plagued with exceptions and uncertainties, at least some of which should ideally be discussed by attorney and client in advanceideally be discussed by attorney and client in advanceAs is also true in other contexts, an ounce of prevention will often be worth a pound of cure

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Thank YouThank You

For questions or comments:q

David SorensenLawyers for the Profession® Practice GroupHinshaw & Culbertson LLP222 North LaSalle Street Suite 300222 North LaSalle Street, Suite 300(312) 704-3000dsorensen@hinshawlaw comdsorensen@hinshawlaw.comwww.theethicalquandary.com

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Att Cli t P i ilAtt Cli t P i ilAttorney-Client Privilege Challenges With Social

Attorney-Client Privilege Challenges With Social g

Media and E-Communications

gMedia and E-

CommunicationsCommunicationsCommunicationsEffective Strategies for Preserving the

Privilege and Maintaining ConfidentialityEffective Strategies for Preserving the

Privilege and Maintaining ConfidentialityPrivilege and Maintaining ConfidentialityPresented by:

Steven Paradise, Esq.

Privilege and Maintaining ConfidentialityPresented by:

Steven Paradise, Esq., q, q

Outline of DiscussionOutline of DiscussionOutline of DiscussionOutline of Discussion

Wh t i i l di ? What is social media? How is social media defined? How does social media manifest itself?

Wh t th i l d id ti f th f i l What are the governing rules and considerations for the use of social media? ABA and state bar association guidelines and opinions Court decisions Court decisions

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What is Social Media?What is Social Media?What is Social Media?What is Social Media?

“Social media uses web based devices that allow its users to Social media uses web-based devices that allow its users to communicate interactively, either with the website or the device itself or with other users.”¹

Commonly known social media tools: Social networking sites i e Facebook Social networking sites i.e., Facebook Blogs i.e., Above the Law Microblogs i.e., Twitter

¹ Michael C. Lynch & Lystra Batchoo, Social Media in Discovery and as Evidence Litigation, Law Tech. News, May 9, 2011.

.

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How Does Social Media Manifest Itself?How Does Social Media Manifest Itself?How Does Social Media Manifest Itself? How Does Social Media Manifest Itself?

²H J Th B t S i l M di I All i O Pl (J 30 2011

²

²Henry Jones, The Best Social Media Icons All in One Place, (June 30, 2011, 5:28pm), http://webdesignledger.com/freebies/the-best-social-media-icons-all-in-one-place.

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Guidelines and Restrictions for Using Social MediaGuidelines and Restrictions for Using Social MediaSocial MediaSocial Media

U f i l di f i ti ti f i t Use of social media for investigation of opposing party ABA model rule 4.2 forbids “communication with a person

represented by another attorney, and this sometimes prohibits access to social media posts ”access to social media posts. Oregon State Bar Association has decided that “if a social media

post is publicly available -- like a blog or an ordinary webpage --an opposing attorney can access the post because the attorney was simply reading information posted for general public consumption… not communicating with the represented owner of the website.”³

³Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media is Obvious. It’s Also Dangerous. ABA Jour. (2011) citing Oregon State Bar Association Opinion No. 2005-164 (August 2005).

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Guidelines and Restrictions for Using Social MediaGuidelines and Restrictions for Using Social MediaSocial MediaSocial Media

Accessing social media posts of someone unrepresented by counselg p p y Model Rule 4.1 (a) “forbids a lawyer from making a false statement of

material fact or law to a third person.” Model Rule 8.4 (c) “forbids a lawyer from engaging in conduct

involving dishonesty fraud deceit or misrepresentation ”involving dishonesty, fraud, deceit or misrepresentation. The Association of the Bar of the City of New York and the

Philadelphia Bar Association have opined that these rules are violated when an attorney friends an individual under false

tpretenses. But, the Association of the Bar of the City of New York has

explained that “an attorney can withhold strategic information when making a friend request.”g q

The Philadelphia Bar Association disagrees with New York’s opinion explaining “legal ethics require an attorney to make a full disclosure of the motive for making a friend request.”4

4Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media is Obvious. It’s Also Dangerous. ABA Jour. (2011).

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The ABA Commission on Ethics 20/20 W ki GThe ABA Commission on Ethics 20/20 W ki GWorking GroupWorking Group

C i i t d t f th h i f th ABA M d l Commission was created to perform a thorough review of the ABA Model Rules of Professional Conduct in the context of advances in technology and global legal practice developments.

In September 2010 solicited comments to examine a number of legal In September 2010, solicited comments to examine a number of legal ethical issues arising from lawyers’ use of technology and discuss possible approaches to dealing with these issues. Issues included: Line between personal communications and lawyer advertising Inadvertent lawyer-client relationships

Guidelines for amending model rule 1.18 Gathering information through networking websites

Follow Philadelphia Bar Association guidance suggesting use of model rules 4.2 and 4.3 as a guide or issue a formal opinion

Blogging and discussion forums P i f li d ti i f l d l d Paying for online advertising, referrals, and leads Lawyer websites

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Use of Work Computer and Work E-mail to Send Information to Personal AttorneyUse of Work Computer and Work E-mail to Send Information to Personal AttorneySend Information to Personal AttorneySend Information to Personal Attorney

Th f l ’ k t d k il t d The use of an employee’s work computer and work e-mail to send information to her personal attorney can waive the attorney-client privilege when the following questions are answered in the positive: Is there a company policy banning use of company e-mail for Is there a company policy banning use of company e mail for

personal correspondence? Does the company monitor the use of its e-mail? Does the company have access to all e-mails?p y Did the company notify the employee about these policies?5

5Alamar Ranch, LLC v. County of Boise, CV-09-004-S-BLW, 2009 WL 3669741 (D. Idaho Nov. 2, 2009).

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Attorney-Client Communication Over Employer Computer Not PrivilegedAttorney-Client Communication Over Employer Computer Not PrivilegedEmployer Computer Not PrivilegedEmployer Computer Not Privileged

Holmes v Petrovich Dev Co LLC 2011 WL 117230 (Cal App 3 Holmes v. Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. App. 3 Dist. Jan. 13, 2011). Employment discrimination claim Plaintiff used her employer’s computer to e-mail her attorney. C t t t d th t i il d t t d t h th l Court stated that privilege does not extend to when the employee

uses the employer's systems, is advised that the communications are not private, and is aware of and agrees to these conditions. The court analogized the use of an employer’s The court analogized the use of an employer s

communication system for personal communications to consulting an attorney in the employer's "conference rooms, in a loud voice, with the door open."

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Waiving Work-Product Protection Through Use of Social MediaWaiving Work-Product Protection Through Use of Social MediaUse of Social MediaUse of Social Media

Ki t I C i I 219 F R D 503 (S D C l 2003) Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003). Kintera sued its competitor for copyright infringement and

misappropriation of trade secrets. Kintera discussed the alleged misappropriation of trade secrets on its Kintera discussed the alleged misappropriation of trade secrets on its

company website, which can be accessed by members of the internet using public, and disclosed that it had signed affidavits from Convio’s employees confirming the allegations.

During discovery, Kintera withheld the affidavits relying on work-product protection.

Court held that Kintera’s disclosures of the affidavits on its website fresulted in a waiver of work-product protection.

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Waiving Attorney Client Privilege Through Use of Social MediaWaiving Attorney Client Privilege Through Use of Social MediaUse of Social MediaUse of Social Media

L U i l M i C 572 F S 2d 1150 (N D C l 2008) Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008). Defendant moved to compel Plaintiff to produce documents and

testimony withheld under waived attorney-client privilege. Plaintiff made multiple disclosures relating to the motive of bringing Plaintiff made multiple disclosures relating to the motive of bringing

the action in e-mails, electronic chats, and her personal blog. Court held that Plaintiff voluntarily waived the attorney client privilege

because her communications with third parties related to the actual psubstance of her conversations with her attorney.

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Implications for DiscoveryImplications for DiscoveryImplications for DiscoveryImplications for Discovery

E E O C Si l St M t LLC 270 F R D 430 (S D I d E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010). Two former employees alleged sexual harassment by former

employeremployer. Defendant looked at public profiles and communications from the

former employees’ Facebook and MySpace accounts. Court held that content on social networking sites is not shielded g

from discovery simply because it is not publicly viewed. Content from social media sites must be produced when it is

relevant to a claim or defense in the case.

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Social Media as EvidenceSocial Media as EvidenceSocial Media as EvidenceSocial Media as Evidence

S A i t d P fil d M h 14 2011 i Mi t Di t i t Spooner v. Associated Press, filed March 14, 2011 in Minnesota District Court. NBA referee sued the Associated Press and a reporter alleging that

a series of Tweets on the news agencies’ Twitter account defameda series of Tweets on the news agencies Twitter account defamed him by suggesting he engaged in “game fixing.” This pending case highlights the growing trend of using social

media to communicate information that can become important evidence to support the initiation of a lawsuit.

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Presenter ProfilePresenter ProfilePresenter ProfilePresenter Profile

Steven R Paradise PartnerSteven R. Paradise, Partner• Steven's main area of practice is complex

commercial litigation with an emphasis on securities-related litigation.

• Steven also has extensive experience representing companies and individuals in investigations and enforcement proceedings by the SEC, FINRA, and other law y , ,enforcement and regulatory agencies.

• Steven is the co-chair of V&E’s Securities Litigation and Enforcement Group and Electronic Discovery Task Force

212.237.0016 sparadise@velaw.com

Electronic Discovery Task Force.

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Best Practices forPreserving the Privilegeg g

Jonathan Evan GoldbergPartner

T +1 212 398 5779jonathan.goldberg@snrdenton.com

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snrdenton.com

About SNR Denton

SNR Denton is a client-focused international legal practice delivering quality and value.

We serve clients in key business and financial centers from 60 locations in 43 countries, through offices, associate firms and special alliances across the US, UK, Europe, the Middle East, Russia and the CIS, Asia Pacific, and Africa, making us a top 25 legal services provider by lawyers and professionals worldwide.

Joining the complementary top tier practices of its founding firms—Sonnenschein Nath & Rosenthal LLP and Denton Wilde Sapte LLP—SNR Denton offers business, government and institutional clients premier service and a disciplined focus to meet evolving needs in eight key industry sectors: Energy, Transport and Infrastructure; Financial Institutions and Funds; Government; Health and Life Sciences; Insurance; M f t i R l E t t R t il d H t l d T h l M di dManufacturing; Real Estate, Retail and Hotels; and Technology, Media and Telecommunications.

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Our Locations

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Jonathan Evan Goldberg

Jonathan Evan Goldberg is a member of SNR Denton’s Litigation and Arbitration practice, where he focuses on all aspects of complex commercial litigation, employment law and litigation, and ERISA litigation.

Jonathan, an experienced trial lawyer and frequent public speaker, has successfully represented numerous clients in federal and state courts throughout the United States in matters involving claims of retaliation, discrimination, wrongful termination, fraud, breach of fiduciary duty and breach of contract. Jonathan also routinely represents corporations and individuals in trade secrets and restrictive covenant litigation, assists clients inindividuals in trade secrets and restrictive covenant litigation, assists clients in understanding and addressing the various legal issues raised in connection with the failure of Bernard L. Madoff Securities, Inc., and has defended corporate and individual clients in connection with investigations by the US Department of Labor (DOL) and the US Department of Justice (DOJ), Antitrust Division.Jonathan also concentrates on and advises clients with respect to the following:Jonathan also concentrates on and advises clients with respect to the following: Advancement and indemnification proceedings; Civil RICO litigation; Whistleblower litigation; Defamation litigation; Executive compensation litigation and arbitration; International litigation and arbitration; Antitrust litigation and arbitration; Products liability litigation; Environmental and toxic tort litigation.

Prior to joining SNR Denton Jonathan gained significant litigation and trial experiencePrior to joining SNR Denton, Jonathan gained significant litigation and trial experience working at several major law firms and served as a federal law clerk for the Honorable Harvey E. Schlesinger, US District Court for the Middle District of Florida, Jacksonville, Florida.

Jonathan is also a trained and skilled mediator.

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Considerations for Protecting the Privilege in Social MediaProtecting the Privilege in Social Media

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Considerations for Protecting the Privilege in Social Media

No Difference in the Legal Standard

– The standard for what constitutes waiver of attorney-client privilege via– The standard for what constitutes waiver of attorney-client privilege via communications made through social media is the same as the standard for what constitutes waiver via communications through any media.

– To determine whether privilege has been implicitly waived courts considerTo determine whether privilege has been implicitly waived, courts consider whether the communication at issue placed otherwise privileged matters in controversy.

• See e g 6 James Wm Moore et al Moore’s Federal Practice § 26 49(5)(a) (3d edSee, e.g., 6 James Wm. Moore et al., Moore s Federal Practice § 26.49(5)(a) (3d ed. 2008) (citing Conkling v. Turner, 883 F.2d 431, 434-35 (5th Cir. 1989); Hollins v. Powell, 773 F.2d 191, 197 (8th Cir. 1985); Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 at n.11 (9th Cir. 1981); Multiform Dessicants, Inc. v. Stanhope Prods. Co., 930 F.Supp. 45, 48-49 (W.D.N.Y. 1996)).

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Considerations for Protecting the Privilege in Social Media

Practical Issues

– Every communication made through social media is recorded– Every communication made through social media is recorded.

– Deleting the electronic record is nearly impossible.

– Communications made through social media are often less private than k ti i tspeakers anticipate.

• See, e.g., Romano v. Steelcase, Inc., 907 N.Y.S.2d 650, 657 (N.Y. Sup. Ct., Suffolk Co. 2010) (stating that “privacy [on social networking sites] is no longer grounded in

bl t ti b t th i th ti l t l b tt kreasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”) (citations omitted).

– There are commercial pressures to communicate through social media.

• See, e.g., Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D.Cal. 2003) (holding that statements regarding trial preparation communicated through plaintiff’s website in the interest of appeasing investors waived protections of that preparation under the work-prod ct doctrine)

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product doctrine).

S i l M di P li iSocial Media Policies

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Social Media Policies

A clear and consistent social media policy governing both attorneys’ and clients’ communications may afford protection against the waiver of y p gattorney-client privilege via communications made through social media.

– See, e.g., DeGeer v. Gillis, 2010 WL 3732132 (N.D.Ill. Sept. 17, 2010) (focusing on an employer’s computer use policy when holding that the plaintiff had not waived attorney-client privilege with respect to emails sent to his personal attorney on his work computer merely because those emails passed through the employer’s servers). The DeGeer court, (citing U.S. v. Hatfield, 2009 WL 3806300 (E D N Y N 13 2009)) li d h f ll i f2009 WL 3806300 (E.D.N.Y. Nov. 13, 2009)), listed the following factors as relevant to whether such use waived attorney-client privilege:

• Does the employer maintain a policy of banning personal use of emails?

• Does the employer monitor the use of its computer or emails?

• Does the employer have access to the computer or emails?

• Did the employer notify the employee about these policies? and,

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Did the employer notify the employee about these policies? and,

• How did the employer interpret its computer usage policy?

Social Media Policies

An effective social media policy clearly emphasizes confidentiality.

– While some have a tendency to be more forthcoming when using social media– While some have a tendency to be more forthcoming when using social media than when using other media, this predilection should be resisted for both legal and commercial reasons.

– Rule of Thumb: If the information in question is something you wouldn’t wantRule of Thumb: If the information in question is something you wouldn t want your staunchest competitor or opposing counsel to read, it probably shouldn’t be communicated through social media.

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Social Media Policies

An effective social media policy clearly states the level of access and oversight that supervisors have over information passing through work servers. p p g g

• Such clarity ensures that all parties are aware of where confidentiality can be expected, or - perhaps more appropriately - where confidentiality ought not be expected.

• Supervisors should strictly adhere to the access rules once established, and not exceed their authority. Overstepping authority to access social media could result in civil action, statutory and/or punitive damages, and evidence preclusion.

– See 18 U.S.C. § 2701(a); 18 U.S.C. § 2707(a)-(c). See Also Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d 199 (4th Cir. 2009); Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 08-Civ-4810, 12-29 (S.D.N.Y. Dec. 22, 2010).

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Social Media Policies

Effective social media policies are strictly enforced, and social media policies that are only enforced when a major offense occurs are ineffective. y j

– Because a communication made through social media is nearly impossible to delete, major offenses in the world of social media are difficult to remedy.

– Accordingly its probably better to strictly enforce every minor offense to aAccordingly, its probably better to strictly enforce every minor offense to a social media policy in the effort of preventing major offenses, than to excuse minor offenses and risk a major offense.

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Ed ti / T i iEducation / Training

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Education / Training

Remain current on the technologies and the related issues.

– Remember that because social media is a quickly developing phenomenon that– Remember that because social media is a quickly developing phenomenon that often evolves faster than the laws governing it, many of the laws related to social media are unclear, and many of the issues are unresolved.

Remain informed on the involvement of one’s clients and fellow attorneysRemain informed on the involvement of one s clients and fellow attorneys with social media.

– This will at least provide notice of what to look for with respect to protecting against waiver of attorney-client privilege and will ensure one’s ability to warnagainst waiver of attorney client privilege, and will ensure one s ability to warn attorneys and clients of the potential impact of communications made through social media on attorney-client privilege.

If there is any confusion on the social media format, remember that theIf there is any confusion on the social media format, remember that the broad rules of attorney-client privilege have not changed.

– If it seems like a communication made through any other media would threaten attorney-client privilege, it will likely also threaten attorney-client privilege if

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attorney client privilege, it will likely also threaten attorney client privilege if made through social media.

Control Privileged Material to Reduce Possibility of Waiverto Reduce Possibility of Waiver

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Control Privileged Material to Reduce Possibility of Waiver

– Again, once a communication is made through social media, it is nearly impossible to avoid all of the negative consequences of that communication. p g q

– Accordingly, it’s best to ensure that privileged material is not widely distributed. That is, it is good practice to ensure that privileged materials are only distributed to those who need access to them, and to those who are aware of the general contours of attorney-client privilege.

– While it is difficult to delete the complete record of a communication made through social media, it is still good practice to make a good faith effort to do so once aware of a potentially problematic communication.

– Minimizing exposure to the communication might mitigate the negative consequences.

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