Archive for the ‘social media’ Category

Court: No, You Can’t Have That YouTube Video

YouTubeAnother social media case. This time, instead of the keys to a Facebook account being sought, it is a YouTube video that had been pulled down or hidden. And the video subject matter involves drinking, smoking, shooting a gun and cursing, among other things.

Is this stuff relevant to the lawsuit such that it need be disclosed?

The case of Reid v. Soults starts with tragedy, as 26-year-old Robert Reid falls off an ATV and suffers a traumatic head injury. Off he goes to see the defendant doctors for treatment.

A medical malpractice suit ensues as the young man dies, premised on a delay in treatment for cerebral edema.  As with every other medical malpractice case, obviously no claim is made for the injuries suffered before the patient came into contact with the defendants.

In this case, there is a YouTube video called “Rob Reid Raw and Uncut” that was placed online by non-party Thomas Reid, Jr. (brother of Rob). It showed,  according to the defendants, “the decedent drinking, smoking, and using guns,” all of which preceded the accident and alleged malpractice. That video was then taken down or made private.

Coming as a shock to absolutely no one, the defendants wanted an authorization for the YouTube account of the non-party, bringing up an interesting issue as to whether such discovery should be entertained.

The plaintiff, of course, countered that the only reason the defendants wanted the video was so that they could besmirch the character of the decedent in the hopes that the jury wouldn’t like him, and therefore ignore issues of malpractice.

In other words, the plaintiff wants the trial to focus on the doctors. The defendants want the trial to focus on the conduct of the decedent before any accident even occurred, and are looking for any hook to make it relevant.

The issue for the court: Could the requested discovery be relevant to the issues of pecuniary loss and life expectancy, which are at issue in a wrongful death case, such that it would then make it discoverable?

Back in 2011 when a lower court told a different plaintiff to cough up all Facebook data for a similar request for social media records, the appellate division (First Department) stopped the practice dead in its tracks and forced the lower court to do an in camera review.

The problem here for the courts is that, with the explosive creation of new potential evidence due to a variety of social media, the courts could be swamped by such requests, and each request could contain mountains of postings, private messages, photographs and videos.

Last year, Judge Joseph Maltese, sitting as a trial judge in Staten Island, warned of the problem of defense fishing expeditions through the lives of plaintiffs and the tsunami of data:

As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.

The appellate court in the Reid matter told the lower court to review the video. And Judge Joan Lefkowitz, who sees many of the medical malpractice cases in Westchester, did just that. And she found it badly wanting in the relevancy department, giving the defendants a big fat no in response to their attempts.

A final note: While the standard here is that the party making the request must show a “factual predicate” to get access to the records, the exceptionally burdensome task that will befall the courts in doing the reviews  of what could be, in some cases, mountains of records, means that if such requests are not well-documented, the request should be doomed.

The vast majority of such requests I have sheen so far are simply fishing expeditions. Courts are not going to place themselves in the position of looking for a minnow in an ocean on behalf of the defendants.

Note: On my request, plaintiff’s counsel Anthony Pirrotti, Jr. —  a frequent lecturer to other trial lawyers —  provided me with some of the background, via one of the briefs.

Enough with the LinkedIn Endorsements!

linkedin_log0They come poring in to my email these days — LinkedIn endorsements. And I still can’t figure out why this is happening.

When I joined LinkedIn a couple years back it was to see what this other social network was and post my bio in case anyone using the service wanted to find me. I assumed it was a pretty pointless exercise since I already have a pretty good web footprint, but hey, you never know if someone is going to invent a better toaster. Twitter, after all, supplanted my RSS feed.

In doing so, I also accepted connections from other lawyers since this was just a simple click and it cost me almost no time. As long as I didn’t smell a marketeer that was going to follow-up with email solicitations, it didn’t seem to matter much to me.

But LinkedIn wasn’t, as far as I could tell, a better toaster, and it just seemed to be yet another gathering point for people to connect with others, and yet another way to spend time that could be better spent with doing actual work, or time with family.

My wife, a recruiter for dot com companies, loves the site as it enables her to look for people with certain attributes to fill positions. For job hunters, it can be valuable. But for a practicing lawyer to be spending time there?

Every so often I noodled around with it, and joined a legal blogging group that I diligently checked once or twice a year. That was about it.

LinkedIn EndorsementsAnd then started the flood of people endorsing me. Friends, adversaries and strangers.  A first I was flattered. I’m easy that way.

But I was endorsed for legal practice areas sometimes, in areas where I don’t even practice.

I endorsed a few people back if I knew them and was familiar with their skills, but the problem is that the endorsements came in like a flood, sometimes multiple ones from the same person, but with new practice areas noted. And each time I tried to endorse someone back, in took me several minutes just to do it right, me not being the type to willy-nilly endorse people.

My brain finally started to fire properly and I belatedly realized that this endorsement racket is, for most, a massive self-congratulatory pat on the back to each other that doesn’t amount to a hill of beans. Sort of like a contest to see who can collect the most Twitter followers.

I’ve stopped, at least for now, because I can’t answer the one big question: What the hell is the point? It isn’t as if a potential personal injury client is going to go to LinkedIn to find an attorney. And even if they were already deeply involved with LinkedIn, and used the service on some regular basis, it isn’t as if such a person would be duped by the endorsement scam.

Would some other attorney find me and refer a case? Maybe. But they are also unlikely to be duped by the endorsement scam. They would see my bio, and they would ask around.

So I’ve stopped what I see as a pointless charade.

If folks want to use LinkedIn in order to find people connected in their particular industry, as my wife does, I get it. If I were looking for new employment, I would most definitely have my bio on that site.

But running around “endorsing” people doesn’t seem like time well spent.

What Does A Smile Mean? (Updated x2)

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman is in the picture to the right. He is in the news right now because he had the great misfortune of being near one of the Boston Marathon bombs.

In the picture Bauman is smiling and giving a thumb’s up. He is also missing both of his legs. Actor Bradley Cooper is to the left and New England Patriots wide receiver Julian Edelman (who tweeted the picture) is to the right.

As soon as he woke up in the hospital, he asked for pen and paper to write that he saw the bomber and then went on to help the FBI.

I bring this smile photo up today because, over the years, I’ve covered several rulings by courts that deal with defense attorneys asking to fish through the Facebook and other social media sites of plaintiffs. They ask to fish because the plaintiff is smiling in a photo and claim that the smile is inconsistent with suffering.

Here are two examples: In Davids v. Novartis,  drug-maker Novartis went fishing on the basis of a smile in a photograph and Magistrate Judge Williams D. Wall slapped it down, writing, “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

By contrast, a Suffolk County judge permitted access to Facebook based on the same theory, writing in Romano v. Steelcase:

In this regard, it appears that plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. (see also, in contrast,  Eric Goldman’s commentary on the Romano photo)

Perhaps future courts will take note of the picture of Bauman, with a smile and a thumb’s up, to note that a smile in a snapshot does not magically mean everything is well.

As Bauman makes abundantly clear in this picture, people can smile for a multitude of reasons. It may be because they are happy to be alive. Or because someone said something humorous, even at a funeral. Or simply because of instinct when someone lifts a camera and hollers, “Say cheese.”

Judges and practitioners, please take note.

Heather Abbott, of Newport, R.I., is wheeled into a news conference past members of the media, behind, at Brigham and Women's Hospital, in Boston, Thursday, April 25, 2013. Abbott underwent a below the knee amputation during surgery on her left leg following injuries she sustained at the Boston Marathon bombings on April 15. (AP Photo/Steven Senne)Updated (4/26/13) – Another smile, this time from bombing victim Heather Abbott. One week after the bombing, she had her leg amputated. Prior attempts to surgically repair the leg had failed.

Three days after the amputation she appeared at a press conference. And smiled. You can see her expression here.

A smile may mean many things.

Updated June 24, 2013: People Magazine ran a cover photo in its June 11, 2013 edition — three amputees, three brave smiles. If a defendant tries to claim a smile in a photograph means the person isn’t injured, just show them this cover.PeopleMagazine-BostonStrong

The Death of RSS and the Rise of Twitter

twitterWhen news broke yesterday that Google was dumping GoogleReader there were two kinds of reactions from bloggers noted Bruce Carton at Legal Blog Watch: Those for whom it was the end of the world and those who shrugged.

Carton was in full panic mode. I was a shrugger. I stopped using my RSS feed about a year or two ago, as it simply died a slow death for me.

And that’s because most anyone that I would have followed on RSS is placing links to their blog posts on Twitter. And Twitter also had the advantage of having (short) comments on those blog posts, which might also give you an idea if something was interesting or contentious. RSS was not just redundant, but inferior. (And, as I noted the other day, it can make you a better writer of legal briefs.)

Between Twitter, RSS, Facebook, LinkedIn, Google+, Instagram, blog post comments, YouTube, listservs, all manner of open discussion forums and whatever else is incubating now that I don’t know about, participating online can easily be a 24/7 job/hobby/distraction. But I have a real job and a real family, as most of you do, and I have to pick and choose. RSS lost. I also have an account at LinkedIn that I rarely check/use, I stopped using forums years ago, and I haven’t yet figured out what to do with Google+, or had the time to explore it.

I haven’t always been a fan of Twitter, and ripped it right after it came out. But I’ve come to appreciate its utility, an appreciation that comes only by carefully screening those I might follow.

When someone follows me, I generally look at their last three tweets (or “twits” as Scott Greenfield quite appropriately calls them). If those tweets are about a local accident, in the desperate hope the victim will log on to Twitter and find this brilliance, I know this is not a person to follow. So too with anyone in legal marketing. I need more phone calls and emails from these hucksters like I need a hole in the head.

But worse still are those that respond to an individual with something like “Ha!”, apparently forgetting that many others will see this gibberish, not just the one that sent the message being responded to. And even worse are those that write, “Thanks for the RT!” Thanks for sharing your insecurity, with me by noting how important an RT is to you.

Why anyone would want this crap clogging their Twitter feed and rendering it useless is beyond me. Links and short comments on relevant stories are what works.

And you know those folks that are following thousands of others? It’s pretty clear such folks are not reading their own Twitter feeds. I don’t give a damn if they follow me or not.

Last year I spoke at a conference on social media down in Washington DC. And a woman that followed after me was hit by an audience question: If someone follows you on Twitter, are you supposed to follow them back? “Yes!” she cried, as that was the polite thing to do. I almost fell off my chair as I recognized the entire audience had just become dumber for having heard this.

Twitter can be a good tool that certainly replaces RSS. Just be sure to carefully cull the list of those you follow. You can follow me if you want (@Turkewitz) but don’t be upset if I don’t follow back. My brain has a limited capacity.

That’s my two pesos. Bruce Carton’s mileage will vary. And remember that no one will ever put the number of your Twitter follows on your headstone.

Elsewhere on the subject:

Really Simple Sign of the Future (Greenfield)

The End of GoogleReader: A Sign of Blogging’s Decline and Lessons for Lawyers (Elefant)

 

Another Facebook Fishing Expedition Gets Slapped Down

The Facebook decisions seem to be coming fast and furious now.

Today, the Appellate Division (First Department) shot down yet another attempt by a defendant to go fishing around the plaintiff’s personal life, simply because Facebook activities “may reveal daily activities that contradict or conflict with”plaintiff’s claim isn’t enough. No way, said the appellate court, not good enough.

“Mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage.”

“To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account — that is, information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

So sayeth the court in Tapp v. New York State Urban Dev. Corp.

The other Facebook decisions and discussion on my site are at this link.

 

 

NY Judge: Facebook Discovery Reviews May Open Flood Gates

This Facebook discovery decision came down January 11th. It is one that I’ve expected for a long time.

The backdrop: In the last few years there have been a plethora of demands by defense lawyers in personal injury cases for Facebook (and other social media) information. It often comes in the form of a demand for the plaintiff’s log in information, so that they can go snooping around looking for something damaging.

The first decision of any note came about due to a woman smiling in a photo on Facebook. The photo was public. If the woman is smiling, argued the defendants, maybe she isn’t in as much pain as she claims? (Romano v. Steelcase, 2010) And so it began.

Commercial litigators have dealt with e-discovery for years, sifting through documents that might number in the millions as emails and document drafts are sorted through with sophisticated software. Out-of-work lawyers get hired for peanuts to sit in dreary dungeons going through them.

But such discovery is mostly unknown to the personal injury bar. The exploding use of social media, and the creation of spectacular quantities of data, is now changing that.

This data explosion and the desire of defendants to access it has ramifications for the courts. Who is to say what should be disclosed or not? Well, the court is to say. And in order to say, the court must review. Therein lies the problem.

In Staten Island, Justice Joseph Maltese wrestled with that issue two weeks ago at the trial level in Fawcett v. Altieri. Fawcett’s action alleges assault and battery by Altieri and injury to Fawcett’s eye.

Defendants moved for social media data and the plaintiffs cross-moved for a protective order.  The defendants demanded:

authorizations to permit the defendants to obtain full access to and copies of Plaintiff’s current and historical records and/or information and photographs on Plaintiff’s social media website pages, including but not limited to Facebook, MySpace, Friendster, Flickr, and any other social media websites.

In the face of discovery demands, courts have to deal with what his “material and necessary.” The court noted the wide array of things that social media is used for:

The court takes judicial notice that subscribers to these sites share their political views, their vacation pictures, and various other thoughts and concerns that subscribers deem fit to broadcast to those viewing on the internet. Whether these broadcasts take the form of “tweets,” or postings to a user’s “wall,” the intent of the users is to disseminate this information.

This wide array of data is important because, if some material is to be disclosed, someone impartial will have to sift through it. The fact that privacy settings may be cranked up high is unimportant. An old fashioned hand-written diary may be private, but it also may be discoverable in certain circumstances.

And so defendants must show, in order to gain access to private information, a “factual predicate” for doing so, which is another way of saying that a party, to gain access, “must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand.” In this case, Justice Maltese noted that depositions hadn’t even been held yet, and no actual predicate had been shown.

The judicial burden is extraordinary. The judge noted that “asking courts to review hundreds of transmissions ‘in camera’ should not be the all purpose solution to protect the rights of litigants. Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim.”

This is exactly the point I made back in October 2011 after a lower court told the plaintiff to disclose everything, and the appellate division reversed and threw it back to the trial court to do a “more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” (Patterson v. Turner)

I noted then that, if lower courts were forced to actually do such determinations, they would be swamped by requests. They would have to set the bar of discovery high, just to survive the paper onslaught. I  wrote that:

What does this mean for the lower courts? That if they see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter,  emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.

Justice Maltese has concluded, as had I, that someone has to go through all that crap. OK, he doesn’t say it exactly that way, but he comes damn close:

As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.

This point can’t be made strong enough: Anyone opposing a discovery order for social medial records had damn well better point out to the court that this is not a one-time deal. When the camel’s nose gets under the tent, the rest of the camel will surely follow.

Twittering With the Enemy (A Blogospheric Celebration)

Yesterday I re-tweeted something that Ted Frank wrote over at Point of Law; a piece about lawyers whining about no work. His point — after noting that he started up a successful public interest law firm dedicated to objecting to class actions that don’t treat the plaintiffs well — was that there were many good causes out there for lawyers to get involved with. Get off your ass, he effectively said, and go find a cause to represent.

The main point that I took, before he addressed a myriad of potential legal issues, was how much he enjoyed what he was doing as opposed to the career track toward academia he had anticipated. He wrote that he

discovered how much I like litigation when I have autonomy and don’t have to make arguments I don’t believe in, and discarded the idea of writing law-review articles no one would read. Today I have two attorneys working for me, a fascinating docket, and get to argue more appellate cases every six months than I did in my entire ten-year BigLaw career.

Frank’s political views, of course, are not universally shared, particularly by members of the plaintiff’s personal injury bar. But he did address, as I said, a number of issues that could be raised by lawyers looking for new career tracks.

There are three different reactions that I’ve seen, though I think the last one might be the most important…stick with me here, because this time I have an actual point to make.

The first reaction to the Frank piece came  from Max Kennerly (First Lesson For New Plaintiff’s Lawyers: If It Was Easy, Everyone Would Be Doing It). Kennerly is always a good read, and he gets into the nitty gritty of the details of the clients and lawyers actually meeting each other:

plaintiffs’ law firms don’t just discover viable legal claims somewhere in the world and file them, they only enter the picture after clients find and hire the lawyersMarketing lawyers is hard work.

He goes on to discuss — and I won’t give it all here because I think you should head over to his site and read it yourself — the extraordinary difficulties of the entire contingent fee arrangement and trying to fund mass actions:

Frank is arguing for inexperienced, poorly capitalized lawyers to dive right into expensive and prolonged complex litigation involving procedural mechanisms (e.g., the class action) and causes of action (e.g., antitrust) that are routinely attacked by no less a force than the United States Supreme Court against defendants with essentially unlimited resources, like “Ivy League schools” and “the Obama administration.”

The second objection comes from Elie Mystel over at Above the Law. First he identifies the problem:

the problem is that “the reason” most people went to law school was “money.” The “cause” most people signed up for was “risk-averse earning potential.” Frank is essentially telling a group of mercenaries to find a cause they believe in and fight for free for a time, and then the money will come. And it’d be great advice except for that fact that most mercenaries didn’t get into the business for a cause, they’re in it for the cash.

But from there Mystel digs deeper and points the finger at the law schools that teach legal theory, as opposed to the actual practice of law. Young, unemployed lawyers are simply not up to the task of doing what Frank advocates because they’ve never been taught. He notes:

Not everybody has the skills to start their own business, and it’s not like law school spends a lot of time — or any time whatsoever — teaching and training people in the art of making money with a J.D. Heck, there are hard-working, incredibly intelligent partners at law firms who have no freaking clue how to market themselves or their legal expertise. We call them “service partners,” and they’d probably be working for the hourly rates of an SAT tutor if it weren’t for “rainmakers” with business savvy who know how best to turn talent into money.

Scraping clients together is hard, not everybody knows how to do it, and law schools aren’t teaching people.

And finally, there is a third objection that I didn’t expect, and the one I consider most important. This one comes from “Michael” on Twitter, who was displeased that I (and Dave Waterbury) re-tweeted Frank’s piece to begin with:

@Turkewitz @dewesq55 Really? Sending a link advocating undercutting standard fees on contingency fees = asking for a race to the bottom.

That is correct, I re-tweeted something even though I had disagreements with parts of it and even though Frank has a long history of being a tort “deformer” whose political views I oppose. And you know what? I once hired him as my attorney anyway. I explained that in detail a few years ago: Turkewitz v. Yahoo (Meet My Lawyer, Ted Frank).

Now the point I wanted to make — I told you I would get here: When I was just a baby blogger, some six years ago, I was irritated by some point or article that Walter Olson noted at Overlawyered and wrote a response. And Olson proceeded to give me the best damn lesson in blogging that I ever received: He amended his post to say, and for an opposing view, see Turkewitz. WTF?

“The enemy” had just given me link juice and readers. It took just a heartbeat to fully comprehend the nature of the blogosphere. We are not islands unto ourselves, but this is an ongoing conversation. Nor is this a conversation to be had solely among those with whom we agree. What good is that?

Unlike many politicians (and arguing spouses) that simply talk past each other, barely even acknowledging the position of the other, Olson engaged. And with less than a year under my belt, he then added me to his blogroll (which I wrote about).

Frank wrote something that was interesting. People responded. They may agree or disagree with him, but this is what makes for a vibrant blogosphere. Let us celebrate.

Why is this important? Because many still don’t get it, with social media gurus telling clients to fill their blogs with all manner of Google friendly search terms regardless of the dreck it produces. This is a favorite topic of people like Scott Greenfield and Brian Tannebaum.

Look at the four faces you see in this post. That, my friends, is how blogging is supposed to be done. Break out the boxing gloves and debate the merits and to hell with what the social media gurus tell you about how Google thinks. Google, you may be surprised to learn, could be a tad smarter than you think.

App Court: You Ain’t Gettin’ Those Facebook Files

Another defendant attempts to get access to a personal injury plaintiff’s Facebook and other social media accounts, and another defendant is shot down by an appellate court.

This one comes out of New York’s Appellate Division (4th Department). Kregg v. Maldonado, decided a few days ago,  deals with a motorcycle accident and a suit against Suzuki. As per the court:

The Suzuki defendants moved, inter alia, to compel the disclosure of the “entire contents” of those and any other social media accounts maintained by or on behalf of the injured party. Plaintiff objected to such disclosure on the grounds of relevance and burden, contending that the demand for disclosure was a “fishing expedition.” Supreme Court agreed with the Suzuki defendants that they were entitled to such disclosure. That was error.

The authority the appellate court cited to was McAnn v. Harleysville, also a 4th Department case, which I discussed two years ago. Missing from the defendant’s demand, and the heart of the McAnn ruling, was that there had to be some “factual predicate with respect to the relevancy of the evidence.” But there wasn’t.

The defendants were, in essence, on a simple fishing expedition (or, perhaps, a billing expedition) hoping that something would come up that might contradict the plaintiff’s testimony in some way. But that is not a sufficient reason under the law to demand access to private materials.

The court ruled that:

As in McCann, the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident.

Expect to see continued attempts by defendants to pry into social medial accounts marked private, and attempts to create “factual predicates” upon which to make such demands.

New Facebook Discovery Decision: Another Defendant Shot Down

There have only been a few decisions in our state court system dealing with the discoverability of private Facebook postings in civil litigation. Today comes the first federal court decision, out of the Eastern District of New York.

Addressing an issue of first impression within the Second Circuit, Magistrate Judge William D. Wall shot down a request by Novartis Pharmaceuticals to procure the log-in information for a plaintiff to her Facebook and other social networking sites. Decision here, dated today: Davids v. Novartis

The case deals with plaintiff’s claim that she suffers from effects of osteonecrosis of the jaw and the defendants drug Zometa. Defendant Novartis, seeing a profile picture of the plaintiff on her Facebook page that it claimed showed her to be smiling, used that as a basis to demand “log-in information to all of her social- networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.” A copy of their letter-motion to the court is here: Facebook Demand

Magistrate Judge Wall denied the motion, writing that the defendant had failed in its burden to show “some factual predicate, like an individual’s public postings, from which the court could infer that relevant information exists on the individual’s private page.”

Even if the plaintiff was smiling in the photograph, which Judge Wall said “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

Citing to the only New York appellate case on point, McCann v. Harleysville, which announced that standard (and which I discussed in November 2010), it was clear that this was a mere “fishing expedition” that amounted, according to the Court, “a suggestion that a Plaintiff should have to grant free access to all of her social media accounts for no other reason than she filed a claim against Defendant.”

There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera inspection looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.

Expect to see this decision widely cited in the future.

I’m Changing My Blog (No More Mr. Nice Guy)

No more Mr. Nice Guy. I need to toughen up my image a bit.

I started thinking of this two years ago on Halloween when I walked around the neighborhood with the Bogeyman.  Maybe, I’m just too nice. So I took a shot at Monster Energy drink and its monstery conduct. That felt good, but maybe I was still too nice. After all, when I put this blog up for sale on eBay, I didn’t get any bites; something must be wrong.

So this year I’m going all in with a change of ‘tude, as the kids like to say. Since I’ve finally been convinced by the social media experts that I am doing this bloggy thing all wrong, it’s time to pull the trigger on change.

Henceforth (one of those big lawyer words I should use more often), I’m going to use this blog to be more aggressive and talk about me. Grrr. You can see the new me in the masthead and in the picture at right, as I decide to toughen up my image. (And if you’re reading this  in email or RSS feed, you’re just going to have to visit the actual website to see the masthead to know what I’m talking about. Offer expires at midnight tonight.)

Part of my current inspiration comes from the Steven J. Baum law firm, a Buffalo area foreclosure mill for banks, who last year mocked, ridiculed and derided, at a Halloween party, the poor whose homes they were taking. And really, isn’t revelling in the misery of others part of what being a lawyer is about? Never mind that the firm, according to the New York Times:

…recently agreed to pay $2 million to resolve an investigation by the Department of Justice into whether the firm had “filed misleading pleadings, affidavits, and mortgage assignments in the state and federal courts in New York.”

Now that is what we call aggressive.

And then there is the other kind of aggressive,  for which we turn to one Horace Hunter. He was snagged on ethics by the State of Virginia for using his blog for advertising purposes, and therefore requiring a disclaimer. It seems he likes to talk about himself a lot on his blog. So Virginia demanded the disclaimer as per its ethics rules, and Hunter snapped back with “This Week in Richmond Criminal Defense is not an advertisement, it is a blog.”

He lost, and has now been officially admonished. But. You gotta love that aggressive attitude, and isn’t that the point? Grrr. And look at all that press it earned him! He must be doing something right. Here’s a sampling: The Lawyerist, Simple Justice (“If a writing is self-promotional, it is marketing and not a web log, blog or blawg (or any other variation on the theme).  Stop calling them all blogs. They’re not.”), My Shingle (“Hunter’s “blog” really isn’t a blog at all, at least as I define the term. It’s more akin to a running news feed, with at least half of the “posts” reporting on cases that Hunter or his firm handled…”) and more.

But Hunter, of course, didn’t originate the idea of devil may care, sell your soul self- promotion. No siree. Take a look at some of the other ads out there…..ahh, these are six you really have to admire.

So let’s forget about professionalism and results. Forget competence and knowledge. Forget the tarnished image of the profession. Forget about clients. Let’s use this blog to talk about what really counts: Me.

It’s become clear that, in order for me to compete in this brave new world, I’m going to have to take some drastic steps. Ergo, the new me.

Grrrr.

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