Tag: facebook

January 27, 2014 Litigation, Miscellaneous

Judge who sent Facebook friend request to wife in pending divorce proceeding should have been disqualified

facebook-friend-request-446x298While a divorce case was pending, the judge overseeing the case sent the wife a Facebook friend request. The wife did not accept the request. Thereafter, the judge entered a final judgment that was more favorable to the husband. After the wife found out about other cases in which the judge had reached out to litigants through social media, she filed a motion to disqualify the judge. The judge refused to disqualify herself.

The wife sought review with the appellate court. On appeal, the court reversed and remanded, holding that the judge should have disqualified herself:

The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.

Moreover, the court found the problem of friending a party in a pending case “of far more concern” than a judge’s Facebook friendship with a lawyer. Forbidding judges and counsel to be Facebook friends, especially in smaller counties with tight-knit legal communities, would be unworkable. But with a friend request from the judge, a party has a “well founded fear” of not receiving a fair and impartial trial.

Chace v. Loisel, — So.3d —, 2014 WL 258620 (Fla.App. 5 Dist. January 24, 2014)

May 22, 2013 Ethics, Litigation

Judge who was Facebook friends with victim’s father did not have to recuse himself

Case provides valuable guidance to judges on how to responsibly handle social media connections and communications.

Judge sent defendant to prison for assaulting defendant’s girlfriend. Defendant appealed his sentence claiming, among other things, that the judge was not impartial, given that the judge was Facebook friends with the girlfriend-victim’s father, and that the two of them had communicated through Facebook’s private message feature. The appellate court held that the judge did not err by not recusing himself.

The appellate court found that no rule prohibited the judge from being Facebook friends with the victim’s father. And the judge followed the proper procedure concerning the private message by:

  • discontinuing reading it once he realized it pertained to the case
  • warning the victim’s father not to communicate ex parte in that manner
  • printing the message out and placing it in the case file
  • notifying counsel for the parties

Moreover, the private message was not adverse to defendant, but actually asked for leniency. On these facts, the court found an insufficient showing of bias to find reversible error.

Youkers v. State, — S.W.3d —, 2013 WL 2077196 (Tex.App. May 15, 2013)

November 20, 2012 Employment

Facebook activity did not support claim that employee solicited former employer’s clients

About the Author: Evan Brown is a Chicago technology and intellectual property attorney. Need assistance? Call Evan at (630) 362-7237, send email to ebrown [at] internetcases.com, or follow him on Twitter @internetcases.

Invidia, LLC v. DiFonzo, 2012 WL 5576406 (Mass.Super. October 22, 2012)

Defendant hairstylist signed an employment agreement with plaintiff that restricted her from soliciting any of plaintiff’s clients or customers for 2 years. Four days after she quit plaintiff’s salon, her new employer announced on Facebook that defendant had come on board as a stylist. One of defendant’s former clients left a comment to that post about looking forward to an upcoming appointment.

stylist

Either before or after she left plaintiff’s employ (the opinion is not clear about this), defendant had become Facebook friends with at least 8 of the customers she served while working for plaintiff.

Plaintiff sued for breach of contract and sought a preliminary injunction. The court denied the motion, in part because plaintiff failed to show evidence that defendant had violated the nonsolicitation provision.

The court found that it did not constitute solicitation of plaintiff’s customers to post a notice on Facebook that defendant was beginning work at a new salon. The court said it would have viewed it differently had plaintiff contacted a client to tell her that she was moving to a new salon, but there was no evidence of any such contact.

As for having clients as Facebook friends, the court noted that:

[O]ne can be Facebook friends with others without soliciting those friends to change hair salons, and [plaintiff] has presented no evidence of any communications, through Facebook or otherwise, in which [defendant] has suggested to these Facebook friends that they should take their business to her chair at [her new employer].

See also, TEKsystems, Inc. v. Hammernick.

Photo courtesy Flickr user planetc1 under this Creative Commons license

November 15, 2012 Electronic Discovery, Privacy

Court orders in camera review of injured plaintiff’s Facebook content

Richards v. Hertz Corp., — N.Y.S.2d —, 2012 WL 5503841 (N.Y.A.D. 2 Dept. November 14, 2012)

Plaintiff sued defendant for personal injury. Defendant saw a photo plaintiff had publicly posted on Facebook of herself skiing. When defendant requested plaintiff to turn over the rest of her Facebook content (presumably to find other like-pictures which would undermine plaintiff’s case), plaintiff sought a protective order. The trial court granted the motion for protective order, but required plaintiff to turn over every photo she had posted to Facebook of herself engaged in a “sporting activity”.

woman skiing

Defendants appealed the entry of the protective order. On review, the appellate court reversed and remanded, finding that defendants had made a showing that at least some of the discovery sought would result in the disclosure of relevant or potentially relevant evidence.

But due to the “likely presence” of private and irrelevant information in plaintiff’s account, the court ordered the information be turned over to the judge for an in camera review prior to disclosure to defendants.

Whether the plaintiff effectively preserved her Facebook account information may be an issue here. The facts go back to 2009. One is left to wonder whether and to what extent plaintiff has not gone back and deleted information from her account which would bear on the nature and extent of her injuries. It goes to show that social media discovery disputes can take on a number of nuances.

Photo courtesy Flickr user decafinata under this Creative Commons license.

September 6, 2012 Litigation, Personal Jurisdiction, Service of Process

Social media activity proved employee could be served with process

Clint Pharmaceuticals v. Northfield Urgent Care, LLC, 2012 WL 3792546 (Minn. App., September 4, 2012)

Appellant, a healthcare clinic organized as an LLC in Minnesota, got sued in Tennessee. It never showed up to defend itself, so the Tennessee court entered a default judgment against it. When the plaintiff sought to have the Tennessee judgment recognized in Minnesota, the clinic challenged the underlying lawsuit, claiming that the court in Tennessee did not have personal jurisdiction over the clinic, as it had not been properly served with the civil “warrant”.

these leaves are intertwined, just like the employee in this case was with the healthcare clinic

In this case, the court found that the clinic had been properly served because the papers were opened by the wife of the clinic’s owner. The court found she was “intertwined” with the clinic, and should have known what to do with the papers, based in part on the fact that she was “prominently displayed” on the clinic’s website and interacted with commenters on the clinic’s Facebook page.

Photo courtesy Flickr user jenny downing under this Creative Commons license.

August 22, 2012 Computer Crime

Facebook caused wife to stab her husband

U.S. v. Mask, 2012 WL 3562034 (N.M.Ct.Crim.App., August 14, 2012)

No doubt Facebook use can be an enemy to marriage — see, for example, this recent article about how Facebook was named in a third of divorce filings in 2011. A recent case from the military courts shows how using Facebook can put a spouse’s very life in peril.

She is yelling and is very angry.

Defendant wife became angry when she accessed her husband’s Facebook account. An argument ensued between defendant and her husband about the content of husband’s Facebook page, which escalated and turned violent. The two struggled, with defendant yanking the modem out of the wall and striking husband. She continued to hit him, causing him to back into the kitchen, where defendant grabbed a knife and stabbed husband in the abdomen, saying, “that’s what you get, mother fucker.”

Husband survived, and wife was tried and convicted of attempted manslaughter. She sought review with the Navy–Marine Corps Court of Criminal Appeals. On appeal the court affirmed the conviction and five year sentence. It held the evidence at trial was sufficient to support the verdict, and that defendant’s Fifth Amendment rights had not been violated.

Photo courtesy Flickr user normalityrelief under this Creative Commons license.

August 14, 2012 Computer Crime, Privacy

No Fourth Amendment violation when government looked at Facebook profile using friend’s account

U.S. v. Meregildon, — F.Supp.2d —, 2012 WL 3264501 (S.D.N.Y. August 10, 2012)

The government suspected defendant was involved in illegal gang activity and secured the assistance of a cooperating witness who was a Facebook friend of defendant. Viewing defendant’s profile using the friend’s account, the government gathered evidence of probable cause (discussion of past violence, threats, and gang loyalty maintenance) which it used to swear out a search warrant.

What you do on Facebook is almost guaranteed to come back and bite you in the ass.

Defendant argued that the means by which the government obtained the probable cause evidence – by viewing content protected by defendant’s Facebook privacy settings – violated defendant’s Fourth Amendment rights. The court denied defendant’s motion to suppress.

It held that where Facebook privacy settings allowed viewership of postings by friends, the Government could access them through a friend/cooperating witness without violating the Fourth Amendment. The court compared the scenario to how a person loses his legitimate expectation of privacy when the government records a phone call with the consent of a cooperating witness who participates in the call. It held that defendant’s legitimate expectation of privacy ended when he disseminated posts to his Facebook friends because those friends were then free to use the information however they wanted, including sharing it with the government.

Photo credit: Flickr user Poster Boy NYC under this Creative Commons license.

July 11, 2012 Computer Crime

Did a Facebook breakup cause a murder?

According to this news report, a man in Martinsville, Indiana allegedly shot the mother of his 14-month-old daughter after the woman broke up with him through Facebook. Though one should not jump to concluding that Facebook caused this murder, we are left to consider whether the nature of social media communications contributed to the alleged killer’s motivation.

public breakup

Breaking up is supposed to be a private event. Though we do not know the precise means the woman used to communicate the breakup (was it a private message or an IM, or was it more public like a status update or wall post?), one cannot help but notice the incongruity of using a social media platform to communicate a sensitive matter. Equally intriguing as the breakup is the man’s alleged apology in advance that he posted to Facebook before the murder.

Social media, just like any technology, gives us choices. Stories like this show how, in certain circumstances, human nature may not always be up to the task of making the right decisions when that process is affected by a novel context like the seemingly public context of Facebook.

Photo courtesy Flickr user Unlisted Sightings under this license.

July 10, 2012 Employment, Privacy

Reading a non-friend’s comment on Facebook wall was not a privacy invasion

Sumien v. CareFlite, 2012 WL 2579525 (Tex.App. July 5, 2012)

Plaintiff, an emergency medical technician, got fired after he commented on his coworker’s Facebook status update. The coworker had complained in her post about belligerent patients and the use of restraints. Here is plaintiff’s comment:

Yeah like a boot to the head…. Seriously yeah restraints and actual HELP from [the police] instead of the norm.

After getting fired, plaintiff sued his former employer for, among other things, “intrusion upon seclusion” under Texas law. That tort requires a plaintiff to show (1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion or private affairs that (2) would be highly offensive to a reasonable person.

The trial court threw out the case on summary judgment. Plaintiff sought review with the Court of Appeals of Texas. On appeal, the court affirmed the summary judgment award.

The court found plaintiff failed to provide any evidence his former employer “intruded” when it encountered the offending comment. Plaintiff had presented evidence that he misunderstood his co-worker’s Facebook settings, did not know who had access to his co-worker’s Facebook Wall, and did not know how his employer was able to view the comment. But none of these misunderstandings of the plaintiff transformed the former employer’s viewing of the comment into an intentional tort.

Read Professor Goldman’s post on this case.


Photo credit: Flickr user H.L.I.T. under this license.

May 11, 2012 Governance, Miscellaneous, Privacy, Spam

Why be concerned with social media estate planning?

The headline of this recent blog post by the U.S. government promises to answer the question of why you should do some social media estate planning. But the post falls short of providing a compelling reason to plan for how your social media accounts and other digital assets should be handled in the event of your demise. So I’ve come up with my own list of reasons why this might be good both for the individual and for our culture:

Security. People commit identity theft on both the living and the dead. (See, for example, the story of the Tennessee woman who collected her dead aunt’s Social Security checks for 22 years.) While the living can run credit checks and otherwise monitor the use of their personal information, the deceased are not so diligent. Ensuring that the dataset comprising a person’s social media identity is accounted for and monitored should reduce the risk of that information being used nefariously.

Avoiding sad reminders. Spammers have no qualms with commandeering a dead person’s email account. As one Virginia family knows, putting a stop to that form of “harassment” can be painful and inconvenient.

Keeping social media uncluttered. This reason lies more in the public interest than in the interest of the deceased and his or her relatives. The advertising model for social media revenue generation relies on the accuracy and effectiveness of information about the user base. The presence of a bunch of dead peoples’ accounts, which are orphaned, so to speak, dilutes the effectiveness of the other data points in the social graph. So it is a good thing to prune the accounts of the deceased, or otherwise see that they are properly curated.

Preserving our heritage for posterity. Think of the ways you know about your family members that came before you. Stories and oral tradition are generally annotated by photo albums, personal correspondence and other snippets of everyday life. Social media is becoming a preferred substrate for the collection of those snippets. To have that information wander off into the digital ether unaccounted for is to forsake a means of knowing about the past.

How big a deal is this, anyway? This Mashable article commenting on the U.S. government post says that last year about 500,000 Facebook users died. That’s about 0.0006% of the user base. (Incidentally, Facebook users seem much less likely to die than the general population, as 0.007% of the world’s entire population died last year. Go here if you want to do the math yourself.)

I say it’s kind of a big deal, but a deal that’s almost certain to get bigger.

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