Archive for July, 2012

Privacy v. Discovery: The Case for Privacy

Ethan Wall | July 31, 2012 in Social Media Law & Order | Comments (0)

In part five of Privacy v. Discovery: The Battle for Social Media Information, I analyze the seminal case holding that social media information behind privacy settings is shielded from discovery. As explained below, the Central District of California demonstrates that federal law shields certain social media content hidden from the general public through privacy settings from discovery.

The seminal case holding that “private” social media content is shielded from discovery is Crispin v. Christian Audigier Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010). In an action for breach of an oral license, the defendants served Facebook and MySpace with subpoenas seeking the plaintiff’s “basic subscriber information” and certain private communications. The plaintiff moved to quash the subpoenas, arguing that they violated his privacy rights by seeking electronic communications prohibited from disclosure under the Stored Communications Act, 18 U.S.C. § 2701(a)(1).

Congress passed the SCA as part of the Electronic Communications Privacy Act to prevent Internet service providers that store their users’ private communications from releasing them to the public, the court explained. Specifically, the SCA creates a “zone of privacy” that protects Internet users’ personal information from third parties, the court said.

First, the court analyzed whether private messages sent through social media sites generally fell within the ambit of the SCA. The court determined that, indeed, this type of message constituted protected “electronic communication services” under the SCA because only the sender and chosen recipient(s) could view them. While acknowledging this was an issue of first impression, the court quashed portions of the subpoenas ordering the social media sites to produce these messages.

Second, the court considered whether comments on Facebook or MySpace walls fell within the SCA’s ambit. These postings raised a more difficult question, the court said, because they are not strictly “public.” Rather, users may restrict access to them through the platform’s privacy settings. As a result, the court remanded “to develop a fuller evidentiary record regarding plaintiff’s privacy settings and the extent of access allowed to his Facebook wall and MySpace comments.”

This discussion was first published in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, in Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. In the next post, I will delve further into the line of cases holding that certain social media information behind privacy features may be shielded from discovery. 

Case Law Update for July 28, 2012 (Volume V, Issue 30)

Manuel Farach | July 28, 2012 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume V, Issue 30

July 28, 2012

Manuel Farach

 

Horizons A Far, LLC v. Plaza N 15, LLC, — So.3d —-, 2012 WL 3044271 (Fla. 5th DCA 2012).

The following language means the waiver of a receiver is limited to waivers during dissolution proceedings:

No Petition for Dissolution. The Members agree that irreparable damage would be done to the good will and reputation of the Company if any Member should bring an action in any court to dissolve the Company and to have a liquidator or receiver for the Company appointed. Care has been taken in this Agreement to provide what the parties feel is fair and just payment in liquidation of the Interests of all Members. Accordingly, each Member hereby waives and renounces any right to file or pursue any such petition for dissolution of the Company or to seek the appointment by any court of a liquidator or receiver for the Company. If any Member, in violation of the foregoing provision, does file or pursue any such dissolution or liquidation petition or action in any court, the Company and/or any of the other Members shall be entitled to an injunction, as a matter of right, against such petition or action.

Turkali v. City of Safety Harbor, — So.3d —-, 2012 WL 3020381 (Fla. 2d DCA 2012).

A claim for damages under the Bert Harris Act, Fla. Stat. § 70.001, must include an appraisal and the appraised value cannot be “bundled” with other properties, i.e., the appraisal must be limited to the value of only the claimed property before and after enactment of the offending land use decision.

 

Good v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 3021580 (Fla. 4th DCA 2012).

An affidavit which creates disputed issue of material fact with regard to violation of RESPA by virtue of a yield spread premium precludes foreclosure summary judgment.

 

Stratton v. 6000 Indian Creek, LLC, — So.3d —-, 2012 WL 3022850 (Fla. 3d DCA 2012).

A purchaser or assignee at foreclosure sale may intervene post-judgment in order to obtain and enforce post judgment orders such as writs of possession.

 

Centennial Homeowners Ass’n, Inc. v. Dolomite Co., Inc., — So.3d —-, 2012 WL 3023095 (Fla. 3rd DCA 2012).

Betterment under Fla. Stat. § 66.041 is available to any party who, under a mistaken belief they had a legal claim to the property, improves the property but is later disposed.

 

General Star Indem. Co. v. Atlantic Hospitality of Florida, LLC, — So.3d —-, 2012 WL 3023162 (Fla. 3rd DCA 2012).

Claims against insurance companies for breach of the implied duty of good faith and fair dealing are actually statutory bad faith claims under Fla. Stat. § 624.155.

 

Morey v. Everbank, — So.3d —-, 2012 WL 3000608 (Fla. 1st DCA 2012).

Life insurance proceeds payable to a trust are not automatically exempt from claims of creditors under Fla. Stat. § 222.13 (1), and may be available to creditors if so provided in the trust instrument. Likewise, homestead becomes part of the probate estate if a testamentary disposition is made to a person other than listed in Art. X, Section 4 of the Florida Constitution.

 

 

Privacy v. Discovery: The Case for Discovery (Part II)

Ethan Wall | July 24, 2012 in Social Media Law & Order | Comments (0)

 In part four of Privacy v. Discovery: The Battle for Social Media Information, I continue my analysis of the line of cases holding that social media information behind privacy settings is discoverable:

In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct., Suffolk County 2010), court held that a plaintiff lacked a reasonable expectation of privacy for information published on social media sites.

In Romano the plaintiff sued for personal injuries she allegedly sustained in an accident, placing her physical condition in controversy. According to the opinion, she specifically claimed she could no longer participate in certain activities as a result of the incident.

During her deposition, the public portions of her Facebook and MySpace profiles revealed that she still participated in these activities. As a result, the defendant requested the plaintiff execute written authorizations so that it could obtain full access to her social media profiles. The plaintiff refused to provide the requested authorizations on account of her “right to privacy.”

Noting that information on the public portions of the plaintiff’s profiles contradicted her claims, the court determined that the private portions of her profile likely contained additional material relevant to the defense against the action. To prevent the defendant from accessing the plaintiff’s private postings would condone her attempt to hide relevant information behind self-regulating privacy settings, the court said. Therefore, it granted the defendant access to the plaintiff’s “private” Facebook and MySpace accounts, finding this would not violate her right to privacy.

Similar to the court in Simply Storage, the Romano court found that the plaintiff could not have a legitimate expectation of privacy when she voluntarily shared the content on Facebook. Accordingly, the court said no one has a “reasonable expectation of privacy” by choosing to post on their Facebook or MySpace profiles for the world to see.

Furthermore, Facebook and MySpace’s privacy policy disclosures vitiated any legitimate expectation of privacy, the court said. Specifically, each site warned users that the information posted on their profiles, comments or streams might become publicly available.

When the plaintiff created her Facebook and MySpace accounts, she consented to sharing her personal information with others, notwithstanding her privacy settings, the court said. Accordingly, the court rejected the plaintiff’s privacy objections as “wishful thinking” and ordered her to execute an authorization permitting the defendant to “gain access to plaintiff’s Facebook and MySpace records, including any records previously deleted or archived.”

In essence, Simply Storage (discussed in yesterday’s post) and Romano hold that merely “locking” a profile with privacy features does not prevent it from being discoverable. These courts hold that once a person voluntarily publishes information on a social media site, he or she cannot have a “reasonable” expectation of privacy in such content.  Furthermore, any “subjective” expectation of privacy would be lost upon transmission to “friends” and otherwise nullified by the social media site’s privacy disclosures. Thus, under this line of cases, even “private” social media content is discoverable. 

In tomorrow’s post, I will begin to make “The Case for Privacy,” by analyzing a line of cases holding that certain social media information hidden from the general public through privacy settings is shielded from discovery under federal law and by application of traditional discovery standards. A complete analysis of this this topic is discussed in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, first published on Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. 

Case Law Update for July 21, 2012 (Volume V, Issue 29)

Manuel Farach | July 23, 2012 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume V, Issue 29

July 21, 2012

Manuel Farach

 

Premier Lab Supply, Inc. v. Chemplex Industries, Inc., — So.3d —-, 2012 WL 2913173 (Fla. 4th DCA 2012).

A jury instruction for misappropriation of trade secrets may, but does not require, a temporal limitation on damages due to a “head start period” (the amount of time it would have taken the misappropriating defendant to independently develop its own product had it not misappropriated the trade secret).

 

Cirrus Design Corp. v. Sasso, — So.3d —-, 2012 WL 2913180 (Fla. 4th DCA 2012).

If an offer to settle makes clear the settlement contract is in full satisfaction of a tort dispute, the contract becomes an accord and immediate satisfaction. A subsequent breach of the settlement agreement implicates the breach of contract remedies set forth in the contract, but not the underlying tort remedy.

 

Pardo v. Goldberg, — So.3d —-, 2012 WL 2913191 (Fla. 3rd DCA 2012).

The court grants the motion for rehearing, and clarifies its prior opinion issued at 2011 WL 5375107 (Fla. 3d DCA 2011) to read that contractual attorneys’ fees on appeal are not awardable unless the particular language of the contract or related documents (a guaranty in this case) provide for appellate attorney’s fees, and Fla. Stat. § 59.46 only applies when a contract or statute provides for fees.

 

Doukas v. Facilities Development Corp., — So.3d —-, 2012 WL 2913236 (Fla. 4th DCA 2012).

Under Rowe, a trial court must make written findings concerning the hourly rate, the number of hours reasonably expended, and whether to apply enhancement factors.

 

Bonilla v. Bank United, — So.3d —-, 2012 WL 2913281 (Fla. 4th DCA 2012).

“Surprise” under Florida Rule of Civil Procedure 1.540 (b) is basis for relief from judgment when the trial court permits withdrawal of counsel with thirty days to obtain new counsel and enters final judgment five (5) days later.

 

Zervas v. Wells Fargo Bank, N.A., — So.3d —-, 2012 WL 2913892 (Fla. 2d DCA 2012).

Movant for summary judgment before answer is filed bears high burden to prove no answer could ever be filed which could raise issues of fact. The high burden not met in this case when movant does not establish that it gave proper notice under the notice requirements of the mortgage.

 

Cerron v. GMAC Mortg., LLC, — So.3d —-, 2012 WL 2919124 (Fla. 2d DCA 2012).

An opponent to summary judgment need not file an affidavit in opposition to summary judgment; it is the initial burden of the movant to either conclusively refute affirmative defenses to their claim or show the defenses are legally insufficient.

Case Law Update for July 14, 2012 (Volume V, Issue 28)

Manuel Farach | in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume V, Issue 28

July 14, 2012

Manuel Farach

 

Kist v. Hubbard, — So.3d —-, 2012 WL 2864379 (Fla. 5th DCA 2012).

The (Public) Employee Immunity Statute, Fla. Stat. § 768.28 (9) (a), requires that public employees be sued where they are employed unless the complaint alleges the employee “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”

 

Surna Const., Inc. v. Stephens, — So.3d —-, 2012 WL 2864385 (Fla. 5th DCA 2012).

A purchaser of an invalidated tax deed is entitled to interest on the monies it paid pursuant to Fla. Stat. § 197.602.

 

In re Amendments to Florida Rules of Judicial Administration, — So.3d —-, 2012 WL 2848890 (Fla. 2012).

RULE 2.514. COMPUTING AND EXTENDING TIME

(a) Computing Time. The following rules apply in computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

(2) Period Stated in Hours. When the period is stated in hours

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, or during any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.

(3) Period Stated in Days Less Than Seven Days. When the period stated in days is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends

(A) for electronic filing or for service by any means, at midnight; and

 

 

(B) for filing by other means, when the clerk’s office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined. “Legal holiday” means

(A) the day set aside by section 110.117, Florida Statutes, for observing New Year’s Day, Martin Luther King, Jr.’s Birthday, Memorial Day, Independence Day, Labor Day, Veterans’ Day, Thanksgiving Day, the Friday after Thanksgiving Day, or Christmas Day, and

(B) any day observed as a holiday by the clerk’s office or as designated by the chief judge.

(b) Additional Time after Service by Mail or E-mail. When a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire under subdivision (a).

 

Estate of Deresh ex rel. Schneider v. FS Tenant Pool III Trust, — So.3d —-, 2012 WL 2813819 (Fla. 4th DCA 2012).

Nursing home arbitration agreement that prohibits punitive damages is enforceable upon the striking the punitive damages exclusion.

 

Ioannides v. Romagosa, — So.3d —-, 2012 WL 2813833 (Fla. 4th DCA 2012).

A party may appeal the denial of a motion for summary judgment after a full trial on the merits if there are no factual disputes on the motion and the motion was decided on a pure question of law. Additionally, a party cannot recover for fraudulent inducement into a contract if the issue upon which the party was allegedly defrauded in adequately covered in the contract between the parties.

 

Simonson v. Palm Beach Hotel Condominium Ass’n, Inc., — So.3d —-, 2012 WL 2813875 (Fla. 4th DCA 2012).

Employing Florida Statute § 45.031 (publication requirements for foreclosure sale) may be not be mandatory in all foreclosure sales, but is required if the final judgment of foreclosure references and directs the sale be in accordance therewith.

 

Romero v. Erik G. Abrahamson, P.A., — So.3d —-, 2012 WL 2813988 (Fla. 2d DCA 2012).

A case management order which prohibits a party from contacting people outside of the litigation goes beyond dissemination of information gleaned through discovery and other court processes, and constitutes an injunction prohibiting speech.

 

F.D.I.C. v. North Savannah Properties, LLC, — F.3d —-, 2012 WL 2849488 (11th Cir. 2012).

The F.D.I.C. is automatically substituted in state court proceedings once it files its Notice of Substitution for a failed banking institution; it is not necessary that the court issue an order on a formal petition for substitution.

Case Law Update for July 7, 2012 (Volume V, Issue 27)

Manuel Farach | July 22, 2012 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume V, Issue 27

July 7, 2012

Manuel Farach

 

THI Holdings, LLC v. Shattuck ex rel. Estate of Townsend, — So.3d —-, 2012 WL 2613383 (Fla. 2d DCA 2012).

Petitions for admission pro hac vice should essentially be granted on a pro forma basis, the existence of a possible conflict is not sufficient to deny admission.

 

Quesada v. City of Tampa, — So.3d —-, 2012 WL 2614918 (Fla. 2d DCA 2012).

An arbitrator’s conducting non-legal research is “misconduct” as set forth in Fla. Stat. § 682.13 (1) (b) sufficient to vacate the award.

 

McDaniel v. FirstBank Puerto Rico, — So.3d —-, 2012 WL 2615785 (Fla. 2d DCA 2012).

The filing of a Notice of Appearance and Motion to Quash Service does not waive a contest to personal jurisdiction. Actual knowledge of suit does not cure improper substitute service.

 

Pacheco v. Indymac Federal Bank, F.S.B., — So.3d —-, 2012 WL 2579596 (Fla. 4th DCA 2012).

Lack of standing may not be raised for the first time in a motion to vacate final judgment. Moreover, movant who seeks relief from judgment based on fraud must allege the fraud with particularity in order to be entitled to an evidentiary hearing.

 

CFC of Delaware LLC v. Santalucia, — So.3d —-, 2012 WL 2579609 (Fla. 4th DCA 2012).

A trial court may conduct hearings on whether a party was defrauded with regard to an arbitration contract when the fraud is limited to the arbitration provision only; all other allegations (including whether the entire agreement was procured through fraud) must be decided by the arbitration panel.

 

In re Amendments to Florida Rules of Civil Procedure-Electronic Discovery, — So.3d —-, 2012 WL 2579681 (Fla. 2012).

The Florida Supreme Court has revised the Rules of Civil Procedure to address electronically stored information (ESI). The changes are the following:

RULE 1.201. COMPLEX LITIGATION

(J) the possibility of obtaining agreements among the parties regarding the extent to which such electronically stored information should be preserved, the form in which such information should be produced, and whether discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources;

RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY

(3) Electronically Stored Information. A party may obtain discovery of electronically stored information in accordance with these rules.

(d) Limitations on Discovery of Electronically Stored Information.

 

(1) A person may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of burden or cost. On motion to compel discovery or for a protective order, the person from whom discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order the discovery from such sources or in such formats if the requesting party shows good cause. The court may specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery.

(2) In determining any motion involving discovery of electronically stored information, the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

RULE 1.340. INTERROGATORIES TO PARTIES

(c) Option to Produce Records. When the answer to an interrogatory may be derived or ascertained from the records (including electronically stored information) of the party to whom the interrogatory is directed or from an examination, audit, or inspection of the records or from a compilation, abstract, or summary based on the records and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts, or summaries is a sufficient answer. An answer shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or shall identify a person or persons representing the interrogated party who will be available to assist the interrogating party in locating and identifying the records at the time they are produced. If the records to be produced consist of electronically stored information, the records shall be produced in a form or forms in which they are ordinarily maintained or in a reasonably usable form or forms.

RULE 1.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

RULE 1.380. FAILURE TO MAKE DISCOVERY; SANCTIONS

( (e) Electronically Stored Information; Sanctions for Failure to Preserve. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

RULE 1.410. SUBPOENA

(c) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents (including electronically stored information), or tangible things designated therein, but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive, or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. A person responding to a subpoena may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue costs or burden. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought or the form requested is not reasonably accessible because of undue costs or burden. If that showing is made, the court may nonetheless order discovery from such sources or in such forms if the requesting party shows good cause, considering the limitations set out in rule 1.280(d)(2). The court may specify conditions of the discovery, including ordering that some or all of the expenses of the discovery be paid by the party seeking the discovery. A party seeking a production of evidence at trial which would be subject to a subpoena may compel such production by serving a notice to produce such evidence on an adverse party as provided in rule 1.080. Such notice shall have the same effect and be subject to the same limitations as a subpoena served on the party.

 

Village of Palmetto Bay v. Palmer Trinity Private School, Inc., — So.3d —-, 2012 WL 2580713 (Fla. 3rd DCA 2012).

Once a petitioner for a special exception has met the requirements for and submitted competent substantial evidence supporting the exception, a zoning body must grant the petition in full (and may not change or vary the use).

 

Heron at Destin West Beach & Bay Resort Condominium Ass’n, Inc. v. Osprey at Destin West Beach, — So.3d —-, 2012 WL 2546063 (Fla. 1st DCA 2012).

A master condominium association will be governed by the Condominium Act (and not the corporate act) if it is primarily responsible for the operation of real property or facilities that are not common elements of an individual condominium or property of a condominium association, condominium unit owners have user rights in the master association’s property, voting membership is exclusively reserved to condominium unit owners (or their agents or representatives), membership is a requirement of unit ownership, and the master association is authorized to assess its members or affected owners for the payment of shared expenses (with unpaid assessments becoming a lien). Moreover, the Condominium Act permits weighted voting.

Real Property and Litigation Report for June 30, 2012 (Volume V, Issue 26)

Manuel Farach | July 21, 2012 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume V, Issue 26

June 30, 2012

Manuel Farach

 

Health First, Inc. v. Cataldo, — So.3d —-, 2012 WL 2464680 (Fla. 5th DCA 2012).

A party may withdraw one of its claims at any time, even if done at trial and even if doing so changes the nature of the defense. Once a claim is dropped, cross-examination may be limited on the dropped claims (which now constitute collateral issues).

 

Paul N. Howard Co. v. Camp, Dresser, & McKee, Inc., — So.3d —-, 2012 WL 2464870 (Fla. 5th DCA 2012).

Expert witness and deposition costs may be taxable, even if not used at trial, if the costs were reasonably necessary to prepare the winning party’s case.

 

Royal Palm Bank Of Florida v. Hunters Property, LLC, — So.3d —-, 2012 WL 2470864 (Fla. 2d DCA 2012).

Pursuant to Fla. Stat. § 475.61 (4), an appraiser does not need to be licensed or certified in order to testify as an expert witness.

 

Lyons v. Chamoun, — So.3d —-, 2012 WL 2400867 (Fla. 4th DCA 2012).

A proposal for settlement which offers a release but fails to attach a release together with failure to define to whom the release is directed makes the proposal invalid.

 

Vives v. Wells Fargo Bank, N.A., — So.3d —-, 2012 WL 2400891 (Fla. 3d DCA 2012).

Letter written by mortgagor accepting offered payment plan did not constitute pro se answer; thus mortgagor was entitled to file answer contesting service process.

 

 

Privacy v. Discovery: The Case for Discovery

Ethan Wall | July 17, 2012 in Social Media Law & Order | Comments (0)

In part three of Privacy v. Discovery: The Battle for Social Media Information, I analyze the seminal case holding that social media information behind privacy settings is discoverable. As explained below, the Southern District of Indiana makes a persuasive case that Internet users lack a reasonable expectation of privacy in social media information that shielded from the general public through privacy settings.

The seminal case holding that “private” social media content is discoverable is Equal Employment Opportunity Commission (EEOC) v. Simply Storage Management, 270 F.R.D. 430, 434, fn. 2 (S.D. Ind. 2010).  The EEOC, on behalf of two female Simply Storage employees, filed a sexual harassment action against the company, which then requested the Facebook and MySpace profiles and communications of the alleged harassment victims. The EEOC objected to producing all social media content on the grounds that it would improperly impinge on the victims’ privacy rights.

Acknowledging that a party “may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense,” the court immediately ignored the impact of privacy settings. It said social media content is not shielded from discovery simply because a user “locks” it or makes it “private.”

Instead, the court said it would consider privacy concerns to the extent discovery requests are burdensome, oppressive or sought for an improper purpose. It rejected, however, the idea that a person’s subjective expectation that his or her communications remain “private” was a legitimate basis for shielding those communications from discovery. These concerns can be adequately addressed by a protective order, it reasoned. To the court, merely “locking” a profile through privacy features does not prevent it from being discoverable.

While acknowledging private social media content may include sensitive personal information that could be embarrassing, the court said disclosure of such information is inevitable when suing to recover for personal injuries. It also held that “this concern is outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings.”

Accordingly, the court overruled the privacy objections and ordered the EEOC to produce the claimants’ “private” social media communications and content.

This subject is discussed in greater detail in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, first published on Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. In the next post, I will delve further into the line of cases holding that social media information behind privacy features are discoverable. 

Privacy v. Discovery: The Battle for Social Media Information

Ethan Wall | July 10, 2012 in Social Media Law & Order | Comments (0)

Social media is eroding traditional notions of privacy in the law. Millions of people interact on social media sites like Facebook, Twitter and MySpace every day to chronicle the intimate details of their personal and professional lives. As more people turn to social media for online interaction, it comes as no surprise that these new technologies are affecting the legal system at a rate faster than courts can establish precedent to adapt to these new mediums. This is especially true in terms of social media discovery.

Social media is a virtual treasure chest of online information that could make or break any party’s case. Social media “profiles” can include electronic messages, postings, pictures, videos, blogs, mood indicators, lists of “friends,” locations visited, groups joined, and any other type of personal information the user has posted or created online. While millions of people use these features to communicate with friends, family or acquaintances, often the information they share remains hidden from the general public view behind a virtual wall of privacy settings.

Privacy settings generally allow social media users to select who may view their profiles or certain profile content. Based on this veil of virtual privacy, parties frequently ask courts to determine the proper scope of social media discovery when Internet users have a certain expectation of privacy over protected content.

In my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, I analyze the effect of privacy settings on the discoverability of social media information. First published on Westlaw’s Computer & Internet Journal, Volume 29, Issue 23, this in-depth article surveys the split of authority amongst federal jurisdictions over whether content and messages “hidden” behind privacy features are subject to discovery. Over the series of posts, I will discuss the reasoning of each line of cases in more detail – and provide additional commentary on the case for discovery, privacy, and advocating for unique judicial resolutions that provide a balance between privacy interests and the need to access discoverable social media information in litigation. The complete article can be found here.

Privacy v. Discovery: An Overview of the Battle for Social Media Information

Ethan Wall | July 3, 2012 in Social Media Law & Order | Comments (0)

What is the proper scope of social media discovery when Internet users have a certain expectation of privacy over  their social media content?  In the article Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, I explain how federal reach different conclusions of whether social media is discoverable when an Internet user applies privacy settings to shield their information from the general public.

Despite the popularity of social media sites, published decisions addressing whether the content is discoverable are few and far between. As a result, trial courts must decide these issues without the benefit of established precedent, leading to inconsistent rulings. This makes it difficult for lawyers to predict how a court will react to discovery requests for a party’s personal online information, especially for “private” social media content.

Accordingly, lawyers and judges find themselves at a crossroads — the intersection of discovery and privacy in the realm of social media discovery — with recent decisions guiding the law in opposite directions.

Some courts hold that parties lack any reasonable privacy expectation for information published on social media sites, even if a party has hidden the content from the public. Other courts hold that certain social media content is inherently private when it is not accessible to the general public.

Finally, some courts have taken a different direction, creating unique solutions tailored to specific cases. The judges in these cases attempt to balance discoverability and privacy without attempting to settle the score with binding precedent.Although the law continues to adapt, these cases offer insight for litigants navigating through this uncertain legal territory.

Over the next several posts, I will analyze (1) The Case for Discovery: reported decisions that determine social media information behind privacy settings are discoverable because users lack a reasonable expectation of privacy, (2) The Case for Privacy: reported decisions that hold that certain information behind privacy settings are protected from discovery under federal law, and (3) Unique Judicial Solutions: where courts have entered orders concerning discovery of social media information that attempts to balance privacy interests with the need to access relevant social media information in litigation.