A duck’s a duck

By | 28th October 2010

Lawyers are used to logical thinking and reasoning. After all, most of them will know the duck test: if it looks like a duck, swims like a duck and quacks like a duck, then it probably is a duck. Conclusions are reached by a process of inductive reasoning. Don’t go away! I promise this piece will lighten up shortly and there is a nugget at the end if that is not mixing too many metaphors! Please read on!

I wonder how many people know what the following are: WeeWorld, Taringa! Habbo, Elftown, Qzone, RenRen, Plurk, Bandoo or Viadeo. To hazard a guess, not too many!

But if I asked about LinkedIn, MySpace, Bebo or Facebook, most people would know that they are social networking sites. LinkedIn has over 75 million registered users, Bebo 117m+, MySpace in excess of 130m and Facebook a whopping 500 million and counting.

By contrast the others are relatively small apart from the sites popular in China where RenRen has 15 million registered users and Qzone a highly respectable 200 million plus! [Source: Wikipedia, List of Social Networking Websites]

Last week I attended a small seminar at Speechly Bircham run by a company called Educated Change and 2 of their consultants, Peter Klein and Kevin Bryant.

The seminar dealt with issues around the use of networking sites as they affect lawyers and those in sales. It was an entertaining hour or more which encouraged me to think more carefully about how to use networking sites to better advantage.

For instance, the speakers cited solicitor Chris Sherliker, who says he gets a lot of work by using Twitter. He has an impressive 11000 plus followers so there is a ready market out there hanging on his every word. Occasionally someone will have a legal problem and Chris may well get the call.

Peter Klein also said he used a LinkedIn service which enables him to find other people registered on LinkedIn with interests similar to his own merely by looking at his mobile phone which will pick up other members in a room such as the one we were in. Sadly, we were all too well behaved to have our phones on and he was unable to connect with anyone but it is certainly thought provoking.

DLA Piper was identified as the most active user of Twitter of the large law firms but by and large the numbers of followers of any firm were disappointingly small reaching only into the low thousands (compared with Facebook’s 500 million users).

I feel there is something worth looking at here. In simple terms, we have to get used to the idea that the days when it was sufficient for law firms to pump out material they wanted their clients to read, ie broadcasting solutions, are well and truly over and the new generation(s), particularly those now aged over 25 and up to about 55, are hooked on social networking which is essentially interactive.

Hummingbirds are among the smallest birds in the world. Most people know that not only can they hover but they can also fly backwards. They come in a variety of bright colours from mainly warm countries and drink nectar while eating insects and spiders.

One of my interests is the continent of South America which I have been fortunate to visit on a number of occasions. I was thrilled to discover that not only was the hummingbird used as a talisman by the Aztecs but that the Aztec god Huitzilopochtli was often depicted as a hummingbird. When I swallowed my nerves (and my breakfast, which fortunately stayed swallowed) and flew in a tiny plane over the arid sands of the Nazca desert in Peru to see for myself what I had only read or heard Maria Reiche lecture about, the famous Nazca Lines, I was fascinated to see that one of the shapes depicted is a hummingbird! The bird is also in the coat of arms of Trinidad and Tobago.

I promised you a nugget and if you have read this far you have earned one.

The same day as my seminar on social networking sites I was alerted by the Electronic Discovery Group (EDG) on LinkedIn of a case in the USA which linked social networking, hummingbirds and electronic disclosure/discovery. What a coincidence!  If you are yet not ‘in’ on LinkedIn, you can refer to an article on the excellent K&L Gates Electronic Discovery Law site:  Court Orders Production of Plaintiff’s User Names and Passwords for Social Network Accounts, 21st October 2010.

Let me explain. In McMillen v Hummingbird Speedway Inc, (PICS No 10-3174 Jefferson Co Sept 9th 2010) President Judge Foradora held that where a person’s social networking sites contain information relevant to the issues in a claim or defence in litigation, access to those sites should be freely granted.

The link to the K&L Gates report above gives a lot more detail, but briefly the Plaintiff (they still use the proper word in Pennsylvania) in a road traffic accident (shunt) argued that the details of his password and log in to Facebook and MySpace were private and should not be disclosed despite the defendant’s request. The Judge said that there was no evidence supporting this contention and furthermore that there was no argument that the contents of the sites were privileged. Indeed, the judge went on to say that merely by using the sites the user was expressly accepting that there was no confidentiality and that users expressly contemplated that the sites were open to others to see. As the information might prove to be pertinent to the truth or falsity of the claim by the Plaintiff and his alleged injuries, the Plaintiff should disclose his Facebook and MySpace passwords and log ins within 15 days and should not alter or delete any of the information contained on the relevant sites.

I promised you a nugget and there you have it! Pause for thought and consider how many cases you have where you ought to be considering telling your clients as part of their disclosure obligations that they should not be altering or deleting material on their social networking sites and should be prepared to disclose their user names and log ins to the other side!

Time will tell whether the courts in this jurisdiction will take the same view but you have to ask why, if asked, they would not make a similar order for disclosure.

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