Tag Archives: MySpace

From the Vault: e-Discovery 101: Twitter MySpace Away on Facebook

[This is the 1st time I've retrieved a post from the archives.  It was my 28th, from February 4th, 2009.  The reason I'm doing so is, this seems to be the most popular article I've written, in terms of republishing, anyway.  Maybe people just like the title.  I recently granted permission for it to be reprinted for an attorney malpractice CLE course in New Jersey April 26th, and it occurred to me; I didn't really have any subscribers back then, so it's likely almost none of you have ever seen it.]

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I've been looking at Twitter, MySpace and Facebook recently…

"I hate my job!"  "I don't want to do this anymore!"  "I pay my staff too much!"

Who wrote this?  Attorneys!  I'm picking on attorneys because they should know better, but my point is simple; live your life online and it'll come back to haunt you, someday.  Hello???  You do know this stuff may be discoverable, right?

Since it's fast approaching, here's a President's Day story for you…

An underling wrote to a General – who would go on to be President of the United States – regarding an act of treason.  The underling was profligate, rambling on and on about the facts of the case, anecdotal details et al, until finally getting to the point; the request for the General to sign-off on an executive order of execution.

The General was not amused.  In his order authorizing the execution, he decided to 'send a message' when he sent the message.  His order contained two words:

"So do."

The underling got the message.  Upon execution of the order, he sent a follow-up to the General:


In the above story, the names were changed to protect the innocent (which means I couldn't find a link to provide, even though I know the story – in some variation – actually occurred.  My recollection is that the missive was sent to General Washington during the American Revolutionary War).

Are you getting the message?


Everybody's seen this on TV – the Miranda warnings.  I'm adopting two of the four Miranda rights as our new e-discovery mantra:

You have the right to remain silent.  Anything you say can and will be used against you in a court of law.

You may be dealing with an adversary who has deep pockets.  What do you think happens the moment a dispute – or threat of one – occurs?  In the old days, they'd hire a private investigator to gather data on the principals, their attorneys, their contacts, heck, even their pets! 

Now, they just do a web search.

There's an old saying; if we could be convicted for what we're thinking, we'd all be in jail!  Forget about 'conviction' for a moment.  Anything you say, no matter when you said it, may be fair game in court to show bias, prior inconsistent statement or a host of other possibilities.  You are creating a record – possibly permanently – of your thoughts.  If you think that deleting them makes them go away, it doesn't.  They can still be recovered in many cases – by someone like me.

If you are operating under the notion that this is personal – and professional litigation is separate – think again.  Anything that can be used to create a profile of how you might carry out your professional duties may be fair game.

Paranoid?  You should be.  You have to be your own filter.  Before you post, ask yourself whether you're OK with the concept that anyone on earth might see it – forever.  If the answer is yes, go ahead.  Post it.  Otherwise, keep it to yourself.

This is e-discovery 101.  Common sense.  We all possess it; we just have to execute.

The Skip, the Bounty Hunter & the Poke(y)

MP900407444 Criminals need love, too.  So much so, that even after committing a crime – and jumping bail – they still can't contain themselves from looking for love on Facebook, MySpace, et al.  You know how you're always hearing the warning, "That intriguing woman named Jenny you're IMing with might actually be a 13-year-old male student from Minnesota"?

Well, it also might be the last name of an anal-retentive, 28-year-old male bounty hunter who's tracking you across state lines.  It also might – as it did in this case – lead to your recapture.

In a 140-character world, I hope you'll take the time to read this story, because you'll get a lot more out of it than you think.  Not only do we see another convergence between the old, in the form of an 1873 Supreme Court case Taylor v. Taintor, and the new, social media, but I'd like you to focus on how much information Jenny gleans just from pouring over the skip's profiles.

If you're purely a data-tech, I understand how you may not care about any of this, but all we ever hear is how everyone wants everyone else to cooperate.  In order to cooperate, it helps to understand how others do their jobs, why they do them the way they do them and what they're hoping to accomplish.  Or, in simpler terms, the psychology of it.

The reality is, if people kept their mouths shut, you'd be amazed how many more cases would remain un-solved.  While this is a criminal example, it applies in a civil context as well.

Loose lips do, indeed, sink ships.  It's just that nowadays, the anchor is attached to social media.

Destroyed Reputations – Brought to you by Facebook/MySpace

00309100 It's nothing new for me to warn about social networking, linking you to the latest example of someone who was done in – legally speaking, of course – by their own postings.  But I gotta say, I've never seen it done quite the way this L.A. Times article does it.

Here are the facts; a man and a woman were in a private residence.  Another male, a bail bondsman, entered through an unlocked sliding-glass door, an argument ensued and the bondsman was shot and killed.  Now, follow the progression of the article.  The 'authorities', if you will, provided virtually no information.  But the 'Times examined the Facebook & MySpace pages of all three individuals involved.  Then, like assembling some sort of puzzle, they used excerpts from each to update the original piece.

The result?  Although the article doesn't speculate, the innuendo is clear; the selected posts suggest that the woman was caught with one man by the other, resulting in his murder.  But how do we know this?  Where are the facts?

The story is located in a section called "L.A. Now", which is described as "the Los Angeles Times’ news blog for Southern California."  In their defense, I suppose they would say that as bloggers, they're not subject to the same journalistic standards as their 'official' newspaper.

But I'll tell you, this reads like a gossip article from a supermarket tabloid.  It also illustrates how three separate people, innocently posting on their social networks, had their personal lives invaded in a way none of them could have ever anticipated.  Yes, I know one of them is dead, but he had two children – and possibly other family members – who will be affected by the publicity.

Shame on you, L.A. Times.

The Verdict is In: Social Networking is a Drug, and Facebook, Twitter, et al, are Enablers

J0321155 I'm rarely surprised by the things I read.  However, while reading an article on Time.com about something I've covered several times, jurors using PDAs during trials, a portion of the last paragraph floored me:

"The temptation to hop online is so great, and the habit so ingrained,
that, as Keene notes, a burglar in Pennsylvania ended up getting caught
because he stopped to look at his Facebook page on the victim's
computer, leaving an online trail for the police to follow."

Granted, assuming the burglar wasn't an IT expert, he wouldn't know he was leaving an online trail, but you'll recall I also posted about a felon who boasted on MySpace about committing a murder.

Maybe I've been discounting the possibility that there is a positive side to social networking.  After all, we know that most people can't keep their mouths shut, and in fact, if all bad-actors simply didn't talk (the opposite of what we always see on TV, where everybody talks and talks and talks before asking for a lawyer) the reality is, a much lower percentage of crimes would be solved.

I'm curious, going forward, to see if we start experiencing a marked increase in crimes being solved through this type of evidence.  It's something to watch in 2010.

Pop! Goes Your Privacy!

Chicken-Little Remember how I went on and on about the fact that what you do and say in your personal life (particularly online, after all this is an e-discovery blog) may become relevant in a legal proceeding?  Remember how I told you that there are several cases pending that might completely change the definition of privacy?  And remember when I nagged you like your (Please fill-in-the-blank here; mother, grandmother, psychiatrist, attorney, etc.  Hey – I'm not dumb enough to actually name someone and make them mad at me!) when I implored you to stop making those inappropriate posts on Twitter/Facebook/MySpace, etc.?

Well, this headline says it all:

Judge: Buffalo Grove trustee can get Web poster's ID

For those who are pressed for time, this is the relevant portion:

"Buffalo Grove
Village Trustee Lisa Stone should be told the name of the man she
accuses of making defamatory online comments about her 15-year-old son,
a judge ruled Monday in a case being watched for its Internet privacy

Cook County Circuit Judge Jeffrey Lawrence ordered that the identity
of a person known online as Hipcheck16 be turned over to Stone."

We can debate the Constitutional implications of the ruling itself, but truly, this goes all the way back to the 'shouting fire in a crowded theater' argument.  Post-mortems don't interest me much; I deal with what is, and what will be, not what was.  To paraphrase a certain election campaign, it's about the future, stupid!

On a fairly regular basis, I'm accused of being "Chicken Little".  Perhaps my detractors are right.  Maybe it's because I was a boy scout when I was a kid (Be Prepared!) or perhaps it's from all of those years protecting my clients from what might happen, not just what I could identify as likely to happen.

If I weren't doing what I'm doing, maybe I'd have become an actuary (I'd say 'bean-counter', but for those who know this blog well, the only beans I'd be counting are coffee beans…).

It sucks being the wet blanket.  It sucks constantly warning people about risks.  But here's the thing; technology is moving much faster than our ability to understand what we're doing with it.  There used to be an admonishment; when angry, count to ten before acting.  Now, not only do we not count to ten, we immediately grab our always-within-reach Blackberry and post on Facebook!

So, here's a question for you to ponder over the weekend; do you think Hipcheck16 wishes I'd have been his wet blanket?

MySpace Boast Opens the Door to a Murder Conviction

J0432756 Is this e-Discovery Insights or The Darwin Awards?  It might be hard to tell today…

The Indiana Supreme Court upheld a murder conviction against a man who beat to death the two-year-old daughter of his girlfriend.  The Court stated that admitting boasts he made about the crime on MySpace into evidence at trial did not violate the rules.

His lawyer appealed the original conviction, claiming that allowing the evidence to be presented prejudiced his client.

As far as I'm concerned, this is 'Evidence 101', folks.  If you place your character at issue during a criminal trial – as defendant did here – you 'open the door' to the prosecution to rebut with their own character evidence.

Like the article says, it doesn't matter whether you boast at your local bar or on MySpace; it has no effect on the rules of evidence.