Metafilter cited in Michigan Bar Journal February 14, 2012 9:37 AM Subscribe
An AskMe legal question was mentioned in the Winter 2012 issue of the State Bar of Michigan’s Labor and Employment Lawnotes journal.
The article, "How Workers and Lawyers Organize Class Actions in the Electronic Age", appears on pages 19-20 of the bar journal, and cites this question from February 2011 about a potential lawsuit, as well as MattD’s response assessing the claim.
The article, "How Workers and Lawyers Organize Class Actions in the Electronic Age", appears on pages 19-20 of the bar journal, and cites this question from February 2011 about a potential lawsuit, as well as MattD’s response assessing the claim.
perhaps this citation to a bar journal article citing Askme and advising readers to monitor the 'net emphasizes that point.
I wonder about that. I think there are just radically different comfort levels that people have in terms of how identifiable they are online. Not speaking for MattD or UMDirector (who has changed usernames since he held that job iirc) but something showing up in a law journal is way beneath my radar worry-wise as opposed to something being in Google which this question was minutes after it was asked.
posted by jessamyn (staff) at 9:41 AM on February 14, 2012 [1 favorite]
I wonder about that. I think there are just radically different comfort levels that people have in terms of how identifiable they are online. Not speaking for MattD or UMDirector (who has changed usernames since he held that job iirc) but something showing up in a law journal is way beneath my radar worry-wise as opposed to something being in Google which this question was minutes after it was asked.
posted by jessamyn (staff) at 9:41 AM on February 14, 2012 [1 favorite]
Not speaking for MattD or UMDirector (who has changed usernames since he held that job iirc) but something showing up in a law journal is way beneath my radar worry-wise as opposed to something being in Google which this question was minutes after it was asked.
I think the emphasis comes not as much from the bar journal article as an example of someone monitoring the 'net as from the bar journal advising employers to monitor the net through searches.
posted by Jahaza at 9:44 AM on February 14, 2012
I think the emphasis comes not as much from the bar journal article as an example of someone monitoring the 'net as from the bar journal advising employers to monitor the net through searches.
posted by Jahaza at 9:44 AM on February 14, 2012
I think the other article in that issue, "Social Media and Discovery: New Technology, But The Old Rules Still Apply" is even more pertinent. People need to be very, very careful with these questions. This is 100% discoverable, and MeFi gets the subpoena. If asked, the cc' numbers and names are all coming out. That's why a ton of caution is needed here.
posted by Ironmouth at 9:46 AM on February 14, 2012 [3 favorites]
posted by Ironmouth at 9:46 AM on February 14, 2012 [3 favorites]
Yeah, this is actually becoming more of an issue. Malpractice insurance carriers are starting to ask attorneys whether they participate in electronic fora, including those only involving other lawyers, as it's a legitimate and viable liability exposure. Answering in the affirmative is starting to affect malpractice premiums.
Attorneys who participate in these questions on AskMe need to be very, very careful. Attorneys have been successfully sued for malpractice after having a conversation in line at the bank, and it's only a matter of time before someone tries to do the same thing on the basis of comments made on a website like this one.
As an attorney myself, the appearance of something in a bar journal actually raises far more red flags than something appearing on Google. Anything and everything appears on Google, but showing up in a bar journal means that attorneys on both sides of the bar are starting to take deliberate notice of this sort of thing. That genie doesn't go back in the bottle.
posted by valkyryn at 10:22 AM on February 14, 2012 [6 favorites]
Attorneys who participate in these questions on AskMe need to be very, very careful. Attorneys have been successfully sued for malpractice after having a conversation in line at the bank, and it's only a matter of time before someone tries to do the same thing on the basis of comments made on a website like this one.
As an attorney myself, the appearance of something in a bar journal actually raises far more red flags than something appearing on Google. Anything and everything appears on Google, but showing up in a bar journal means that attorneys on both sides of the bar are starting to take deliberate notice of this sort of thing. That genie doesn't go back in the bottle.
posted by valkyryn at 10:22 AM on February 14, 2012 [6 favorites]
I thought that the article itself was fairly light on content, but it raises the issue of greater exposure and the article's audience is a group of professionals who are likely not very much in tune with what those crazy kids are doing on the Intarwebs these days.
(And the fact that those same professionals are the ones writing discovery requests and subpoenas is a bit more scary. For instance, a recent complaint in Pennsylvania cited the use of "Dropbox spy software".)
I think one take-away from the article is, "Hey, lawyers! There's this crazy "hive mind" site called Ask Metafilter where people might be talking about your clients or your lawsuit!" That's not exactly news to us, but it may be news to the vast majority of the bar journal's readership.
posted by QuantumMeruit at 10:33 AM on February 14, 2012 [2 favorites]
(And the fact that those same professionals are the ones writing discovery requests and subpoenas is a bit more scary. For instance, a recent complaint in Pennsylvania cited the use of "Dropbox spy software".)
I think one take-away from the article is, "Hey, lawyers! There's this crazy "hive mind" site called Ask Metafilter where people might be talking about your clients or your lawsuit!" That's not exactly news to us, but it may be news to the vast majority of the bar journal's readership.
posted by QuantumMeruit at 10:33 AM on February 14, 2012 [2 favorites]
This is 100% discoverable, and MeFi gets the subpoena. If asked, the cc' numbers and names are all coming out.
Let's be really clear. We don't have anyone's credit card numbers. People who have paid for an account with PayPal have the information on whose PayPal address it was in their account information. We also have IP addresses and that's pretty much it. We don't archive our web server traffic information for long, or didn't last time I checked. I think we've been really consistently clear just how anonymous your participation on MeFi is. Someone may want to send the not-at-all-anonymous MattD a link to this MeTa thread.
posted by jessamyn (staff) at 11:14 AM on February 14, 2012 [3 favorites]
Let's be really clear. We don't have anyone's credit card numbers. People who have paid for an account with PayPal have the information on whose PayPal address it was in their account information. We also have IP addresses and that's pretty much it. We don't archive our web server traffic information for long, or didn't last time I checked. I think we've been really consistently clear just how anonymous your participation on MeFi is. Someone may want to send the not-at-all-anonymous MattD a link to this MeTa thread.
posted by jessamyn (staff) at 11:14 AM on February 14, 2012 [3 favorites]
I read through the whole "Social Media and Discovery: New Technology, but the Old Rules Still Apply" article before realizing it was the wrong one. It's sort of shocking that a plaintiff in, say, a sexual harassment suit could be compelled to give the defendant his/her social media passwords for the purpose of discovering their state of mind, thus being forced to reveal to them every private message and photo in their account. The article mentions other judges interpreting these things slightly differently, but the rationale to sidestep privacy concerns used in some of the cited cases would suggest the allegedly sexual-harassing employer could do the same with the entire contents of the employee's private email account. Gross.
posted by nobody at 11:17 AM on February 14, 2012 [3 favorites]
posted by nobody at 11:17 AM on February 14, 2012 [3 favorites]
Wow. Ditto nobody's surprise that discovery allows such broad intrusion into what most people would regard as comparatively private spaces. Is all personal correspondence by paper mail discoverable by the same rationale? I.e., if you have shared it with even one person, even if you took reasonable steps to keep it just between the two of you, then it's discoverable?
posted by LobsterMitten at 12:00 PM on February 14, 2012
posted by LobsterMitten at 12:00 PM on February 14, 2012
Attorneys have been successfully sued for malpractice after having a conversation in line at the bank
Do you have a cite for this? My quick search didn't turn up anything.
posted by exogenous at 12:06 PM on February 14, 2012
Do you have a cite for this? My quick search didn't turn up anything.
posted by exogenous at 12:06 PM on February 14, 2012
Ditto nobody's surprise that discovery allows such broad intrusion into what most people would regard as comparatively private spaces.
Usually when discovery involves a lot of evidence that may or may not be admissible (e.g. a bunch of private stuff, most of which is irrelevant to the case), then a party may request a protective order. Protective orders can be tailored to limit the scope of discovery, require that discovery be done in a certain way (e.g. with all parties present), and to require anything that isn't admissible in court be kept confidential. So there are ways to allow broad discovery without unduly risking the privacy of the parties or witnesses.
posted by jedicus at 12:19 PM on February 14, 2012
Usually when discovery involves a lot of evidence that may or may not be admissible (e.g. a bunch of private stuff, most of which is irrelevant to the case), then a party may request a protective order. Protective orders can be tailored to limit the scope of discovery, require that discovery be done in a certain way (e.g. with all parties present), and to require anything that isn't admissible in court be kept confidential. So there are ways to allow broad discovery without unduly risking the privacy of the parties or witnesses.
posted by jedicus at 12:19 PM on February 14, 2012
It would be too bad if the chilling effects that valkyryn speculates on close down lawyers' willingness to participate in AskMefi questions, but not unexpected. On the other hand, this will be great times for uninformed speculation!
posted by thelonius at 12:24 PM on February 14, 2012 [1 favorite]
posted by thelonius at 12:24 PM on February 14, 2012 [1 favorite]
Attorneys have been successfully sued for malpractice after having a conversation in line at the bank
Cite or it never happened. Sued successfully?
posted by Mid at 12:37 PM on February 14, 2012 [1 favorite]
Cite or it never happened. Sued successfully?
posted by Mid at 12:37 PM on February 14, 2012 [1 favorite]
It's sort of shocking that a plaintiff in, say, a sexual harassment suit could be compelled to give the defendant his/her social media passwords for the purpose of discovering their state of mind, thus being forced to reveal to them every private message and photo in their account. The article mentions other judges interpreting these things slightly differently, but the rationale to sidestep privacy concerns used in some of the cited cases would suggest the allegedly sexual-harassing employer could do the same with the entire contents of the employee's private email account. Gross.
Just to play devil's advocate, why is this shocking? Social media is being used more and more in litigation by both sides, both in the civil and in criminal context. For example, prosecutors may seek access to the social media accounts of someone who is on probation for, let's say, Facebook photos showing that person violating the terms of his/her probation. In the particular example you mention, the defendant-employer might seek discovery of plaintiff's private messages and photos to look for evidence of preexisting bias against the employer, or evidence contradicting plaintiff's damages claims, etc. That's not to say that simply because you file a lawsuit, the other side should be able to obtain all of your private social media documents. But if it's something that's relevant to a claim or defense in litigation, it's hard for me to see a distinction between, let's say, your Facebook photos being discoverable and your private diary being discoverable (which it would be, again subject to relevancy etc. requirements).
posted by Pontius Pilate at 12:40 PM on February 14, 2012
Just to play devil's advocate, why is this shocking? Social media is being used more and more in litigation by both sides, both in the civil and in criminal context. For example, prosecutors may seek access to the social media accounts of someone who is on probation for, let's say, Facebook photos showing that person violating the terms of his/her probation. In the particular example you mention, the defendant-employer might seek discovery of plaintiff's private messages and photos to look for evidence of preexisting bias against the employer, or evidence contradicting plaintiff's damages claims, etc. That's not to say that simply because you file a lawsuit, the other side should be able to obtain all of your private social media documents. But if it's something that's relevant to a claim or defense in litigation, it's hard for me to see a distinction between, let's say, your Facebook photos being discoverable and your private diary being discoverable (which it would be, again subject to relevancy etc. requirements).
posted by Pontius Pilate at 12:40 PM on February 14, 2012
Ugh, that article was hack-tastic. Employees organizing on the interwebs, oh no!
posted by yarly at 12:46 PM on February 14, 2012
posted by yarly at 12:46 PM on February 14, 2012
All I can say is: the paralegal responsible for scheduling the deps associated with an ask.me subpoena better get a right-nice bonus.
posted by crush-onastick at 1:12 PM on February 14, 2012 [2 favorites]
posted by crush-onastick at 1:12 PM on February 14, 2012 [2 favorites]
This is 100% discoverable, and MeFi gets the subpoena. If asked, the cc' numbers and names are all coming out. That's why a ton of caution is needed here.
Easily avoided; either sign up before Matt starts charging or pay for your account in stamps.
posted by Mitheral at 1:21 PM on February 14, 2012
Easily avoided; either sign up before Matt starts charging or pay for your account in stamps.
posted by Mitheral at 1:21 PM on February 14, 2012
Generally, the cases in which social media activity gets thrown wide-open in discovery is when the nature of the claim or defense puts it at issue. So if there's an "emotional distress" component to a tort claim, pictures of the plaintiff smiling and partying from the day after the incident are relevant.
As an aside, back in my halcyon days as a litigation associate, I worked on a case involving a high-profile figure whose complaint alleged that he was so emotionally devastated by something that he could no longer have sex with his wife. (A "loss of consortium" claim.) So in his deposition he had to testify about the frequency and manner of his marital activities.
The reality is that if a party is writing about their case online, those writings are discoverable. AskMe questioners often are yelled at to anonymize questions or to otherwise remove identifying details. My original point was something along the lines of, "FFS, Metafilter is one of the sites that a lawyer is telling people to monitor, maybe you should watch what you're saying in this context."
posted by QuantumMeruit at 1:30 PM on February 14, 2012
As an aside, back in my halcyon days as a litigation associate, I worked on a case involving a high-profile figure whose complaint alleged that he was so emotionally devastated by something that he could no longer have sex with his wife. (A "loss of consortium" claim.) So in his deposition he had to testify about the frequency and manner of his marital activities.
The reality is that if a party is writing about their case online, those writings are discoverable. AskMe questioners often are yelled at to anonymize questions or to otherwise remove identifying details. My original point was something along the lines of, "FFS, Metafilter is one of the sites that a lawyer is telling people to monitor, maybe you should watch what you're saying in this context."
posted by QuantumMeruit at 1:30 PM on February 14, 2012
I too would be interested to hear more about the successful malpractice suit based on a conversation in line.
The More You Know ~~~★
posted by chinston at 2:12 PM on February 14, 2012 [1 favorite]
The More You Know ~~~★
posted by chinston at 2:12 PM on February 14, 2012 [1 favorite]
You weren't at his bar-passing party? That thing was epic.
posted by rtha at 3:23 PM on February 14, 2012
posted by rtha at 3:23 PM on February 14, 2012
I was late because I got the address wrong and drove past the bar like four times.
posted by cortex (staff) at 3:49 PM on February 14, 2012 [2 favorites]
posted by cortex (staff) at 3:49 PM on February 14, 2012 [2 favorites]
Wait, I think the implication here is that we should rent a red caddy convertible and drive to Vegas.
posted by mwhybark at 4:49 PM on February 14, 2012 [2 favorites]
posted by mwhybark at 4:49 PM on February 14, 2012 [2 favorites]
If I were to say something potentially libelous like "Rupert Murdoch has testicles the size of raisins," and he went after me based on what I wrote here, could I demand to see his testicles to prove I wasn't lying? In short, are Rupert Murdoch's testicles discoverable? Not that I would put my lawyer through that, so I'll go on record officially stating I have no idea what size balls Rupert has. When I imagine them though, which apparently I do all too often, I imagine them as really tiny. I figure this is what he's compensating for. There's got to be a reason he's such an evil fuck. A small wang and undiscoverable balls would go a long ways toward explaining a few things (at least in my mind).
This is just a hypothetical question though. I wouldn't actually say such things on the internet where just anyone could read it.
posted by cjorgensen at 5:03 PM on February 14, 2012 [6 favorites]
This is just a hypothetical question though. I wouldn't actually say such things on the internet where just anyone could read it.
posted by cjorgensen at 5:03 PM on February 14, 2012 [6 favorites]
I was late because I got the address wrong and drove past the bar like four times.
I said that to my wife on our wedding day.
She said "me too!".
She's the best wife.
posted by Pogo_Fuzzybutt at 5:23 PM on February 14, 2012 [1 favorite]
If it were a choice between seeing Murdock's testicles because of discovery and admitting guilt, I would opt for the big house.....in solitary.....with no yard privileges.
At least I could shake the incarceration experience from my memory to a reasonable degreee, in about ten years after release.
posted by lampshade at 6:00 PM on February 14, 2012
At least I could shake the incarceration experience from my memory to a reasonable degreee, in about ten years after release.
posted by lampshade at 6:00 PM on February 14, 2012
Just looking at the advice given, let's say I'm the big evil corporation of America (or maybe just the big incompetent corporation of America) and I've done something (or dozens of things) that might result in a class action suit against me. Doesn't my monitoring social media for signs of said suit and preemptive action imply that I have something to worry about?
Or is there some legal equivalent of always sending out a spotter plane before you attack the thing you know is there, and letting them bomb the shit out of Coventry that doesn't make it into the legal procedurals on TV?
posted by Kid Charlemagne at 6:17 PM on February 14, 2012
Or is there some legal equivalent of always sending out a spotter plane before you attack the thing you know is there, and letting them bomb the shit out of Coventry that doesn't make it into the legal procedurals on TV?
posted by Kid Charlemagne at 6:17 PM on February 14, 2012
It's always important to be cautious about what you say.
On the other hand, that's boring as hell.
posted by J. Wilson at 7:44 PM on February 14, 2012 [1 favorite]
On the other hand, that's boring as hell.
posted by J. Wilson at 7:44 PM on February 14, 2012 [1 favorite]
I prefer to be judgement proof and have a good lawyer.
posted by cjorgensen at 7:48 PM on February 14, 2012
posted by cjorgensen at 7:48 PM on February 14, 2012
I always thought that the A in DTMFA was for Already. Now I know it's for Attorney.
posted by arcticseal at 12:16 AM on February 15, 2012
posted by arcticseal at 12:16 AM on February 15, 2012
I also now know to preview...dratted tags!
posted by arcticseal at 12:49 AM on February 15, 2012
posted by arcticseal at 12:49 AM on February 15, 2012
I always thought that the A in DTMFA was for Already. Now I know it's for Attorney.
I always thought the A was for "asshole." [insert lawyer joke here]
posted by Philosopher Dirtbike at 1:43 AM on February 15, 2012
I always thought the A was for "asshole." [insert lawyer joke here]
posted by Philosopher Dirtbike at 1:43 AM on February 15, 2012
"IANYL but I did read this on Metafilter..."
posted by tumid dahlia at 4:55 AM on February 15, 2012
posted by tumid dahlia at 4:55 AM on February 15, 2012
Kid Charlemagne asked: Just looking at the advice given, let's say I'm the big evil corporation of America (or maybe just the big incompetent corporation of America) and I've done something (or dozens of things) that might result in a class action suit against me. Doesn't my monitoring social media for signs of said suit and preemptive action imply that I have something to worry about?
This is actually a developing area of the law relating to the duty to preserve evidence. The general rule is that when a party "reasonably anticipates" litigation, it has a duty to preserve evidence which might be relevant to the case.
So when individuals who were engaging in file sharing of music received demand letters from the RIAA, and wiped their hard drives, they destroyed evidence and suffered pretty nasty consequences (broadly speaking, many of the hard-drive wipers got a default judgment entered against them and had to pay (additional) attorneys fees). Instructions to destroy evidence ("clean up those files") are Really Bad if you are reasonably anticipating litigation.
Generalized social media monitoring to protect brand identity? Sounds fairly benign. But if you institute a new monitoring program specifically out of concern for a specific type of liability, well, that could move you further down the spectrum. (Because, you see, if a triggering event occurred, then you have an affirmative duty to preserve evidence, and could be held accountable for any evidence recklessly or negligently lost after the triggering event.)
The case law is all over the board on that issue, and there are actually proposals before the Rules Advisory Committee to modify the federal rules of civil procedure to clarify what constitutes a "triggering event". Don't hold your breath, though -- even if the committee moved forward the rules changes wouldn't have been implemented until 2015-ish, and the recent commentary strongly suggests the committee isn't going to do anything until further analysis/public commentary.
posted by QuantumMeruit at 7:57 AM on February 15, 2012
This is actually a developing area of the law relating to the duty to preserve evidence. The general rule is that when a party "reasonably anticipates" litigation, it has a duty to preserve evidence which might be relevant to the case.
So when individuals who were engaging in file sharing of music received demand letters from the RIAA, and wiped their hard drives, they destroyed evidence and suffered pretty nasty consequences (broadly speaking, many of the hard-drive wipers got a default judgment entered against them and had to pay (additional) attorneys fees). Instructions to destroy evidence ("clean up those files") are Really Bad if you are reasonably anticipating litigation.
Generalized social media monitoring to protect brand identity? Sounds fairly benign. But if you institute a new monitoring program specifically out of concern for a specific type of liability, well, that could move you further down the spectrum. (Because, you see, if a triggering event occurred, then you have an affirmative duty to preserve evidence, and could be held accountable for any evidence recklessly or negligently lost after the triggering event.)
The case law is all over the board on that issue, and there are actually proposals before the Rules Advisory Committee to modify the federal rules of civil procedure to clarify what constitutes a "triggering event". Don't hold your breath, though -- even if the committee moved forward the rules changes wouldn't have been implemented until 2015-ish, and the recent commentary strongly suggests the committee isn't going to do anything until further analysis/public commentary.
posted by QuantumMeruit at 7:57 AM on February 15, 2012
If I were to say something potentially libelous like "Rupert Murdoch has testicles the size of raisins,"
Thank God for the small penis rule.
posted by atrazine at 8:52 AM on February 15, 2012 [1 favorite]
Thank God for the small penis rule.
posted by atrazine at 8:52 AM on February 15, 2012 [1 favorite]
In short, are Rupert Murdoch's testicles discoverable?
Word on the street is, not even with a microscope.
posted by octobersurprise at 9:57 AM on February 15, 2012
Word on the street is, not even with a microscope.
posted by octobersurprise at 9:57 AM on February 15, 2012
His testicles eclipseth the sun
His mighty penis has each battle won
HAIL HAIL RUPERT THE MAGNIFICENT
His nipplering can cure disease
If thou suffereth the pox, do kiss it please
HAIL HAIL RUPERT THE BENEVOLENT
His anus is renowned in legend and song
If thou checketh iTunes, thou will see I'm not wrong
HAIL HAIL RUPERT THE MERCIFUL
Every text he doth see, every voicemail he hears
Shouldst thou offend him, thou will cry hot salty tears
HAIL HAIL RUPERT THE OMNISCIENT
posted by the quidnunc kid at 10:07 AM on February 15, 2012 [2 favorites]
His mighty penis has each battle won
HAIL HAIL RUPERT THE MAGNIFICENT
His nipplering can cure disease
If thou suffereth the pox, do kiss it please
HAIL HAIL RUPERT THE BENEVOLENT
His anus is renowned in legend and song
If thou checketh iTunes, thou will see I'm not wrong
HAIL HAIL RUPERT THE MERCIFUL
Every text he doth see, every voicemail he hears
Shouldst thou offend him, thou will cry hot salty tears
HAIL HAIL RUPERT THE OMNISCIENT
posted by the quidnunc kid at 10:07 AM on February 15, 2012 [2 favorites]
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Much previous angst about legal questions discusses lawyer ethics issues, which are not quite implicated in the article.
posted by QuantumMeruit at 9:37 AM on February 14, 2012 [1 favorite]