Wednesday, March 23, 2016

Your Social Media Activity May Be Used Against You In Court

Most people use some form of social media. Some of the most heavily-trafficked social media sites are Facebook, Twitter, LinkedIn, Instagram, Pinterest, Tumblr and Google+. Ironically, despite the fact that social media users voluntarily post photos and text on these sites, I do not think most people consider it to be public information. At least, they do not expect it to pop up in the discovery phase of their lawsuit, which is the time during a case when the opposing party can request information relating to their claims (including emails, paper records, etc.).

Even though social media sites generally have some form of privacy setting, the sites do not guarantee complete privacy. Because of that fact, many courts have ordered litigants to turn over their social media content to the opposing side during discovery.  Litigants should be aware that potentially discoverable information includes social media profiles, wall postings, current and historical pages, including deleted pages, and related metadata (e.g. geotags).

One example of how social media can lead to problems in litigation is as follows:

Bob claims that he hurt his back in a car accident and that it makes everyday tasks more difficult for him. One week after filing a lawsuit against the driver who ran a red light and hit him, Bob uses Foursquare to “check in” at the gym down the street. Bob’s friend also posts a photograph on Facebook of Bob, which is time and date stamped, tags Bob and captions it “pumping iron.” During discovery, the other side asks Bob to turn over all social media content related to his claimed injuries. Even though Bob’s social profile is set to “private - friends only,” the judge orders him to turn over the content. Bob’s case is damaged by his social media content because he looks like he was not truthful about his injuries.

To protect yourself, you should assume that anything you post online can become a part of your case. In addition, check the settings on your smart phone (e.g. iCloud and location services settings) so that you are informed about what data your electronic device is collecting.  In sum, courts have become more familiar with social media and you should be aware that your activity on social media sites could be used against you in your case. 

Tuesday, March 15, 2016

The Attorney-Client Privilege: Steps to Preserving the Confidentiality of Your Communications With Your Attorney

The Attorney-Client Privilege Prevents Discovery Of Communications Between Attorney And Client In Certain Circumstances

Most people are aware that their discussions with their doctor are protected by the physician-patient privilege. However, many people are not aware that the law affords a similar protection to their communications with their attorney.

The attorney-client privilege protects communications between an attorney and his or her client that are made in confidence for the purpose of obtaining or providing legal assistance for the client.  For example, if you are involved in litigation and are deposed by the opposing party, the attorney-client privilege can prevent the other side from discovering what you and your attorney discussed. Similarly, in court during a trial, the other side cannot make you divulge those communications which you had with your attorney in which you were seeking legal advice. 

A Client Can Waive The Attorney-Client Privilege If He Or She Discloses Otherwise Protected Communications To A Third Party

However, a client can waive the privilege by disclosing otherwise privileged communications to a third-party. What does this mean? Those communications, which were once protected and not subject to discovery by the opposing party, may no longer be protected. If you waive the privilege, the other side may ask you questions about what you discussed with your legal counsel. 

The disclosure of privileged communications to a third-party does not just mean affirmative, voluntary disclosure, such as when you tell your friend what you and your attorney discussed. A waiver can also occur if you talk loudly in public with your attorney and others overhear your discussion. Similarly, if you invite your friend to a meeting with your attorney and he or she sits in on the conversation, those communications are no longer privileged.

There is a limited safe harbor for inadvertent disclosures where a client took reasonable steps to prevent disclosure and takes steps to correct the error. However, it is better to be safe than sorry and to prevent waiver in the first place.

Email And The Attorney-Client Privilege

One of the trickiest areas involving waiver and the attorney-client privilege is in the area of email communications. Here are some steps you can take to prevent waiver of the attorney-client privilege when you communicate with your attorney over email:

1.     Do not send email to your attorney on your work email account. Employers can and do monitor their employees’ accounts and, many times, have language in their employees’ handbooks to that effect. I have been involved in a case in which the court ruled that, because the client communicated with his attorney using his work email account, the client’s emails were no longer privileged. If you have to email your attorney, always use your personal email account (ie. Gmail, hotmail, yahoo mail, etc.).

2.     Do not copy others on your emails with your attorney.

3.     Do not forward your emails with your attorney to anyone.

4.     It is preferable not to use your workplace computer, workplace tablet or work cell phone to send emails to your attorney (even if you are only using your personal email account on those devices). Using your personal smartphone or making a private phone call from your car is your best bet. However, I understand that this is not always feasible and, generally, my impression is that the law does provide greater protection to emails sent on workplace computers from personal accounts (e.g. gmail, hotmail) because employees have a greater expectation of privacy in their personal email accounts.

I am always interested in tips that I can give to clients regarding best-practices for preserving the attorney-client privilege and will update this list as I discover new ones.