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Palm Beach Gardens Attorney David Steinfeld Publishes in Passages
Expert Business Litigation Attorney David Steinfeld haspublished a recent article in Passages Magazine on Social Media.
It is a proven fact that social media is a “gateway” drug and that you will wind up typing away on your smartphone everywhere you go if you start using it so read on at your own peril. As something of an aside, this article is naturally not intended to provide legal advice or to form an attorney client relationship with the reader; it is only meant to provide general information on the important topic of social media and its impact on the modern legal practice. Also, social media is not a gateway drug, really, that was just a joke.
What Is Social Media, Really? Okay, so you realize you can’t ignore social media anymore, but you’re still not convinced that you need or want to use it and wonder what it really is. To break this information down succinctly, social media can be lumped into two general groups, (1) websites that host user-created content, like photos, videos, and text postings, and (2) sites that replicate that content and provide enhanced internet visibility.
In the first category, there are some more commonly used or “older” sites, which in the social media world means more than five years old, such as Facebook, LinkedIn, YouTube, Google Plus, and Twitter, to name a few, and some arguably less well-known or “newer” sites like Pinterest, Ezine, Delicious, Squidoo, Slideshare, and About.me. Likewise, in the second category, there are older sites, like Twitter (yes, it also replicates content), Hootsuite, andTweetdeck and newer ones such as Sharehaulic, Reddit, and StumbleUpon. Haven’
it can benefit your practice. Just think to yourself that the 12-year old you saw engrossed in her phone last Saturday morning was more than likely optioning positions on the Tokyo Exchange and definitely not telling her peers what she was shopping for or who liked who better. That will make all of this much easier to accept.
What Does Social Media Do? I Mean, What Are Its Benefits And Uses?
Alright, now you understand what social media is so you’re likely wondering how it can benefit you. A very interesting phenomenon of social media is that credibility and visibility seem to have merged. When thousands of people accept what an actor or actress, for example, says on social media or they act in a certain manner because of that, it demonstrates that those who are visible through social media have instant credibility with the masses that they attract. It is a strange world where a store’s profits can increase simply as a result of a reality TV show star’s social media postings raving about the store, but it is the world in which we now live and the world that you must understand because it impacts your business and that of your clients. Ask yourself, would such postings qualify as unfair competition?
So, if you are not using social media, I thank you because you are allowing me and everyone else to capture that business. If you want to see what you can do on-line and how you can show potential clients who you are with a few simple clicks of a mouse or pokes of a phone screen, look at my site, www.davidsteinfeld.com. I never imagined that I would be one to write articles and make videos about Florida business law, e-discovery, and commercial litigation, but they are actually fun to do and if I can, you can too.
One other social media benefit is networking, instantaneous communication, and the sharing of information, knowledge, and documents. Not long ago, I met a pipe smoker in Japan on Facebook. We corresponded and I sent him a corncob pipe and some tobacco and in return he mailed me a Japanese pipe and some of their tobacco. He has since become the President of the Pipe Club of Japan. How amazing is that?
So Why Should You Care - Social Media In Litigation
Now, getting to the heart of the matter, you understand social media. You use or are at least willing to try social media. So how do you integrate it into litigation or how does it factor in? First, you already know that our Florida
Rules of Civil Procedure added e-discovery components on September 1, 2012. You are also likely aware that the comments to those new Rules make it clear that the Courts will not look favorably upon counsel that claim ignorance of e-discovery. Therefore, to protect yourself and your clients, you must understand social media and e-discovery.
While at present there is more Federal case law on the topic, a recent Virginia State Court decision sanctioned an attorney for over $500,000 for allowing his client to remove posts and photos from social media sites that were relevant to the case. The worst part is that the direction to do so came not from the attorney, but a paralegal, however, the Court found that the attorney learned of it and allowed it. While that may be an extreme case, the day is not far off when we may have Florida decisions along those lines.
Let me pose a hypothetical to illustrate the impact of social media in litigation and e-discovery’
posts are now a relevant and important part of the practice of law in Florida.
Social media posts in the context of litigation can be thought of in two categories; (i) open source, which is unprotected information voluntarily placed in the public domain, and (ii) protected or compartmented information which has limited access or is intended to only be viewed by those the creator allows to see it. The common methods of obtaining information in discovery, such as Requests to Produce, Interrogatories, Request for Admissions, and physical inspections of hard drives, to name a few, still work for electronically stored information (ESI) and social media posts. What practitioners must do is understand applicable case law in the e-discovery arena and word these requests in a specific and acceptable manner. In addition to obtaining ESI, including social media posts, in a lawsuit, counsel now have an obligation to act in advance to preserve this ESI through such mechanisms as Litigation Hold Notices. Florida attorneys must also be aware of and advise their clients of the liabilities for failure to preserve ESI, whether it is requested or, in some cases, not. For further information on this, you are welcome to view the two featured videos on e-discovery on the homepage of my site at www.davidsteinfeld.com.