The Commercial and Federal Litigation Section of the New York State Bar Association recently released its “Social Media Ethics Guidelines.”1 The Guidelines may be the first of its kind published by a bar group in the United States addressing how to deal with the ethical pitfalls that lay hidden in the rapidly-changing field of social media. Relying upon New York ethics opinions, supplemented by ethics opinions issued by other bar associations throughout the United States, with links to each cited ethics opinion, the Guidelines offer practical advice for situations that come up every day for lawyers, such as “friending” represented and unrepresented parties, communicating with clients over social media, attorney advertising, advising a client on social media postings, and researching jurors’ social media. The Guidelines follow-up on the section’s CLE presented at the New York State Bar Association’s 2014 Annual Meeting entitled “Social Media in Your Practice” which, using mobile devices, surveyed “live” the attendees on their ethical use of social media.2
Recent New York decisions are providing additional guidance as to what an attorney in a personal injury case needs to establish in order to obtain the production of social media electronically stored information (ESI), as well as what needs to be demonstrated to a court in order to obtain subscriber information associated with an IP address of an anonymous user. Two recent trial decisions—Brandofino Communications v. Augme Tech.3 and Soule v. Friends of the Cold Spring Harbor Fish Hatchery4—discuss the form and manner of ESI production. These decisions address the requirement of providing ESI metadata and that produced ESI needs to be linked to Bates-numbers and particularized objections to document requests need to be set forth. Further, Parker Waichman v. Mauro,5 addresses Gmail emails and the determination of if and when such emails were viewed, and how the emails are stored. The decision in Law Offices of Kenneth J. Weinstein, P.C. v. Signorile,6 takes such issue to the next step and finds that the receipt of ESI in certain circumstances simply may not be “presumed.”
