Social Media for the Family Lawyer (And Anyone Else, for the Matter) From Start to Finish

1. Social Media for the Family Lawyer (And Anyone Else, for the Matter) From Start to Finish Ronald W. Nelson and Ashlyn L. Yarnell Lenexa, Kansas kansas-divorce.com | Twitter @KansasDivorce

2. Something my kids use • Something I use to keep tabs on my kids • Something I should probably learn more about • Something I don’t want to learn more about • All of the Above • Some of the Above • None of the Above Social Media Is…

3. Why should we care?

9. TOP SOCIAL NETWORKING SITES*SEPTEMBER 1, 2012 by eBizMBA.com 1 Facebook 750,000,000 2 Twitter 250,000,000 3 LinkedIn 110,000,000 4 MySpace 70,500,000 5 Google Plus+ 65,000,000 6DeviantArt25,500,000 7LiveJournal20,500,000 8 Tagged 19,500,000 9Orkut17,500,000 CafeMom12,500,000 *unique monthly users

10. 1 Google 900,000,000 2 Facebook 700,000,000 3 Yahoo 500,000,000 4 YouTube 450,000,000 5 Wikipedia 350,000,000 6 MSN 325,000,000 7 Amazon 250,000,000 8 Ebay 210,000,000 9 Twitter 200,000,000 10 Bing 165,000,000 Craiglist 150,000,000 *unique monthly users TOP INTERNET SITES CAPABLE OF NETWORKING*November 1, 2013 by eBizMBA.com

11. Clients using Social Media

12. Image from: http://theoffice.wikia.com/wiki/Dwight-Angela_Relationship Hypothetical Divorce Clients: Dwight v. Angela

13. To provide you with Dwight’s Facebook login and password? • To write down any social media accounts she (Angela) uses? • Provide you with the names of a few of Dwight’s friends who have social media accounts? • None of the above? • Some of the above? • All of the above? You meet with Angela for an initial consultation. Should you ask her:

14. To provide you with Dwight’s Facebook login and password? • To write down any social media accounts she (Angela) uses? • Provide you with the names of a few of Dwight’s friends who have social media accounts? • None of the above? • Some of the above • All of the above? You meet with Angela for an initial consultation. Should you ask her:

15. Provide information to clients about responsible social media practices • Ask clients about their social media accounts: • What social media do you use (expansive)? • What are your screennames/ID’s? • Who has access to/knowledge of accounts/passwords? • How do you use social media? • When and how often do you post information? • What are your current privacy settings? Privacy

16. Deactivate her Facebook account • Delete the video post • “De-friend” Dwight and any mutual friends • All of the above • Some of the above • None of the above You have been retained. You find out that Angela posted a video of herself doing a keg stand at a party and you see little toddler Phillip watching in the background! You should advise her to:

17. Deactivate her Facebook account • Delete the video post • “De-friend” Dwight and any mutual friends • All of the above • Some of the above • None of the above You have been retained. You find out that Angela posted a vide of herself doing a keg stand at a party and you see little toddler Phillip watching in the background! You should advise her to:

18. Spoliation

22. “Friend” Dwight on Facebook to see his profile • “Friend” Dwight on Facebook using a pseudonym • Have your paralegal “friend” Dwight • Search Dwight on Google • View Dwight’s public profile • All of the above • Some of the above • None of the above As Angela’s attorney, which of the following actions can you take to obtain information about Dwight?

23. “Friend” Dwight on Facebook to see his profile • “Friend” Dwight on Facebook using a pseudonym • Have your paralegal “friend” Dwight • Search Dwight on Google • View Dwight’s public profile • All of the above • Some of the above • None of the above As Angela’s attorney, which of the following actions can you take?

25. Ethical Social Media Discovery

31. “The scope of relevancy in a discovery proceeding is broader than the scope of relevancy at trial. Relevancy includes information that may be useful in preparing for trial.” Gleichenhaus v. Carlyle, 226 Kan. 167, 597 P2d 611 (1979)

32. Electronically stored information is admissible when: • Relevant • Authentic • Not hearsay or falls under an exception to the hearsay rule • Probative value outweighs prejudicial effect Lorraine v. Markel American Insur. Co., 241 F.R.D. 534 (D.Maryland 2007). Using Social Media as Evidence

33. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. [The rule] does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence.” Manuel v. Texas, TxCrim Appeals, 12th Dist., Aug 31, 2011 Authentication

34. Asking the purported creator of the profile/content • Reply letter doctrine • Circumstantial Evidence • Computer Forensics • Information Directly from Social Networking Site Process of Authentication

35. “In this case, the internal content of the MySpace postings – photographs, comments, and music – was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror [fact finder] could have found that they were created and maintained by the appellant.” Tienda v. State of Texas, 5th Ct Crim Appeals, PD-0312-11 (Feb 8, 2012)

36. Evidence is “unfairly prejudicial” if it has “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one”; “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish”; or “may cause a jury to base its decision on something other than the established propositions in the case.” Quagliarello v. Dewees, No 09-4870 (August 4, 2011)(E.D. Pa.) Probative Value v. Prejudicial Effect

39. Attorneys using Social Media

40. DON’T hold yourself out as something you are not. Do’s and Don’ts:

42. DON’T hold yourself out as something you are not. • DON’T reference personally identifiable or private information about clients or cases Do’s and Don’ts:

44. DON’T hold yourself out as something you are not • DON’T reference personally identifiable or private information about clients or cases • DON’T use social medial (or any media) to pursue ex parte communications with the Court Do’s and Don’ts:

46. DON’T hold yourself out as something you are not • DON’T reference personally identifiable or private information about clients or cases • DON’T use social medial (or any media) to pursue ex parte communications with the Court • DON’T give legal advice on social media sites Do’s and Don’ts:

48. DON’T hold yourself out as something you are not • DON’T reference personally identifiable or private information about clients or cases • DON’T use social medial (or any media) to pursue ex parte communications with the Court • DON’T give legal advice on social media sites • DO review your privacy settings and web history Do’s and Don’ts: