Love it or hate it… WE NEED TO TALK ABOUT SOCIAL MEDIA

1. Love it or hate it…WE NEED TO TALK ABOUT SOCIAL MEDIA USING SOCIAL MEDIA IN FALSE CLAIMS ACT INVESTIGATIONS AND LITIGATION

2. Panelists • Adam Katz, AUSA, Northern District of New York* Adam.Katz@usdoj.gov • Ramsey Prather, Butler Wooten Ramsey@butlerwooten.com • Phillip Brown, Constantine Cannon PBrown@constantinecannon.com Moderated by: Jillian Estes, Morgan Verkamp Jillian.Estes@morganverkamp.com *Written materials are not the work-product of the United States Department of Justice. Statements expressed herein are on behalf of the individuals and do not represent the policy or opinions of the United States of America.

3. Social Media: The Basics • Facebook • Twitter • LinkedIn • Instagram • Snapchat • YouTube • Tumblr • Reddit • Some new platform that a Millennial is creating right now that we won’t understand until it becomes obsolete

4. Social Media: The Basics • Who is Using Social Media? • 3.49 billion active social media users • Average of 7-8 social media accounts per person • 70 million blog posts on WordPress every month • 500 million Tweets are sent each day • 79% of all American adults are on Facebook; 74% of users check daily • The average Facebook user spends 35 minutes on Facebook a day

5. What are we Covering today? • Case-Centered • Using social media to get background information about defendants and witnesses • Using social media to bolster key elements of our cases • How we can get ahold of this information • Client-Centered • What we should be talking about with our clients at the start of a case • Helping clients understand the impact of using social media during a case • Protecting our clients (and ourselves) during settlement and after a case has resolved

6. What are WE NOT Covering today? • Advertising and Firm Use of Social Media • Whether Social Media is a Public Disclosure • Case law is continuing to develop • “To be sure, the advent of online news sites, blogs and social media has blurred the line between what has traditionally been considered news media and other forms of public discussion.” State ex rel. Bartlett v. Miller, 243 Cal. App. 4th 1398, 1414, 197 Cal. Rptr. 3d 673, 685 (2016) • “None of the information obtained by A1 from the Defendants’ social media accounts constitutes a public disclosure because it did not come from one of the enumerated sources in the statute.” A1 Procurement, LLC v. Thermcor, Inc., No. 2:15-cv-00015, 2017 U.S. Dist. LEXIS 105343, at *25 (E.D. Va. Apr. 4, 2017) • BUT SEE, “Generally accessibly websites are available to anyone with an internet connection and a web browser, and access is not restricted. Though they are not traditional news sources, they serve the same purpose as newspapers or radio broadcasts, to provide the general public with access to information. They are easily accessible and any stranger to a fraud transaction could discover the relevant information on them.” U.S. ex rel. Repko v. Guthrie Clinic, P.C., No. 3:04cv1556, 2011 U.S. Dist. LEXIS 98584, at *26 (M.D. Pa. Sept. 1, 2011). • Personal Use of Social Media

7. Case centered:using social media in a false claims act case

8. Case centered: Witness INFORMATION • Searching for Witnesses or Victims • Why do we care? • General background on witnesses that we’ve already identified - relationships, feelings about work environment, general lifestyle • Locating victims or witnesses that our clients may not know about • Where can we find it? • LinkedIn, Instagram, Facebook, Twitter, YouTube, blogs – anywhere a person can share a narrative • Get creative about searching publicly available data – make sure you’re using hashtags • Try variations on your target’s name – common nicknames, screennames, etc.

9. Practice Example • Unhappy Employee

10. Practice example

11. Case centered: Witness INFORMATION • Identifying Location Data • Why do we care? • Consider if any key element of your cases are location-dependent • General background on witnesses • Where can we find it? • Twitter, Facebook, etc. provide check-in features • Consider asking for location data or screenshots which show location history

12. Practice EXAMPLE • Checking-In

13. Practice EXAMPLE • Location as Key Element of Complaint

14. Practice EXAMPLE • Location as Key Element of Complaint “IMMEDIATE PERSONAL SUPERVISION” HERE CHECKING IN HERE

15. Case centered: Obtaining information • What can you get on your own? • Ethical Concerns • Model Rules 4.1-4.4 – Transactions with Persons Other Than Clients 4.1 – Truthfulness in Statements to Others 4.2 – Communication with Person Represented by Counsel 4.3 – Dealing with Unrepresented Person • Model Rule 5.3(b) – “With respect to a nonlawyer employed or retained by or associated with a lawyer: (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer" • Model Rule 8.4(c) – “It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” • Check your state for state-specific ethics opinions

16. Case centered: Obtaining information • State Example: New York • New York State Bar Ass’n Comm. On Prof’l Ethics, Op. 843 (Sept. 10, 2010): • “A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not ‘friend’ the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).” • New York City Bar Prof’l Ethics Comm., Formal Op. 2010-02 (Oct. 19, 2010): • A lawyer may not attempt to gain access to a social networking website under false pretenses, either directly or through an agent. • What can the Government help you get? • Talk to your AUSA early and often if you think social media will be involved

17. Case centered: DISCOVERY CONSIDERATIONS • Obtaining social media in discovery • Ask for everything: social media accounts, user names, logs of any posts/comments/other activity related to lawsuit/defendant/relator; websites on which target makes public comments and user names for those comments; geolocation data • Make this a routine part of your discovery requests! • Carefully tailor social media requests • Landau v. Lamas, No 3:15-CV-1327, 2017 U.S. Dist. LEXIS 206158, at *13 (M.D. Pa. Dec. 2017) “[W]e have long recognized ‘that the scope of discovery into social media sites requires the application of basic discovery principles in a novel context and that the challenge is to define appropriately broad limits on the discovery ability of social communications. In framing the approach to social media discovery, we must be mindful of the fact that social media is at once both ubiquitous and often intensely personal, with person sharing through social media the most intimate of personal details on a host of matters, may of which may be entirely unrelated to issues in specific litigation. Thus, as the plaintiff aptly notes, courts considering such social media discovery requests often impose an array of carefully tailored limitations on this discovery.”

18. Case centered: DISCOVERY CONSIDERATIONS • Preparing to use social media in trial • Social media in a person’s name does not self-authenticate! • See, e.g. U.S. v. Vayner, 769 F.3d 125 (2d Cir. 2014)(vacating and remanding where court admitted Facebook page in defendant’s name but no proof that he actually created it) • Courts have considered: admissions, IP addresses, witness recognition, patterns of use • Using social media evidence at trial

19. Client centered:preparing relators for false claims act cases

20. CLIENT centered: BEFORE THE CASE BEGINS • Talking to Your Client at the Beginning • Full disclosure of client’s social media use – in general and case-specific • Do you want access? • Be wary of public relationship – becoming “friends” or following each other on any platforms • Direct client not to delete anything • Make everything private and stop additional posting about case, but duty to preserve • Consider public disclosure issues • Disclosure to the Government • If client has posted, make sure Government knows early on • Addressing Social Media in Retainer Agreement • Methods of addressing it vary, but should be in there somewhere

21. CLIENT centered: BEFORE THE CASE BEGINS • Possible Retainer Agreement Options • Include social media in whatever language you have about document preservation • Choose language that fits your style: • Litigation Can Get Personal – You Should Go Private. Although a qui tam suit is filed on behalf of the government, you are still a person, and defendants can sometimes turn litigation into a personal attack against the one blowing the whistle. Even though the defendant may not know of your identity for years to come, the internet will likely last forever. Posts made on social media today can easily come back to haunt you years from now, even if they seem unrelated or benign now. If shutting down your social media accounts is a bridge too far for you, we recommend that you, at a minimum, make your social media accounts private and be ever-careful about what you post and to whom. Just ask yourself if you would want a government official, a federal judge, or a jury to see your post, and if you have any hesitation, don’t do it.  • ~ Morgan Verkamp

22. CLIENT centered: BEFORE THE CASE BEGINS • Possible Retainer Agreement Options • Include social media in whatever language you have about document preservation • Choose language that fits your style: • You agree to be available upon reasonable notice to discuss matters, to attend meetings, testify, assist with depositions/interviews, and participate in court conferences and hearings. You agree to help review documents and to provide factual or technical expertise. You agree to give us access to any social media sites you are using or use in the future, and to accept our instructions regarding the content of your postings. • ~ Keller Grover

23. CLIENT centered: During the case • Protecting the Seal • No comments about the case at all – not even alluding to it in those vague ways people love to do on social media • Emphasizing importance of family members following the same rules if they know about the case • Sharing Personal Information • Decide with your client what’s practical – No use at all? No comments on case? • Consider personal image even if not related to case – assume the Government, defendants, jurors and judges are seeing everything • Producing Social Media in Discovery • Be prepared to share the same things you’ve requested if client has posts that are relevant • Burden will be on client to make sure they let you know everything they have posted

24. CLIENT centered: During the case • Watch for relevance and proportionality • U.S. ex rel. Feaster v. Dopps Chiropractic Clinic, LLC, No. 12-1435-EFM-KGG, 2017 U.S. Dist. LEXIS 36043 (D. Kan. Mar. 13, 2017) – Defendants asked for every social media post that Mr. Feaster deleted, altered or removed from a specific date forward. Relator produced all posts and messages referencing his work and entire professional Facebook page. “[A]llowing Defendant in the present case to have unfettered access to all of Plaintiff’s deleted and altered social networking postings would be akin to allowing Defendant unfettered access to rummage through Plaintiff’s garbage. … To the extent Plaintiff mentioned Defendants or his employment with them in any such discarded or altered social media postings, the same are both relevant and discoverable.” • Risks from non-compliance or destruction are high • Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13cv825, 2014 U.S. Dist. LEXIS 57574 (E.D. Va. Jan. 2014) – responding to a series of discovery misconduct which included deleting all social media and other data on an iPhone, court granted defendant’s motion for sanctions and dismissed the case with prejudice

25. CLIENT centered: ENDING the case • Settlement Language • If you’re including a non-disparagement or non-disclosure agreement, consider language carefully so client knows exactly what they can and cannot do • Difference in “writing on social media” or “posting on social media” – former sounds like just original prose while latter may include “likes,” “shares” or “retweets” • Figure out who is responsible for monitoring • Is client expected to share social media with defendants? Are you involved?

26. Practice example • Breach of Confidentiality (Not an FCA Case) “[B]efore the ink was dry on the agreement, and notwithstanding the clear language…, Snay violated the agreement by doing exactly what he had promised not to do. His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school. Based on the clear and unambiguous language of the parties’ agreement and Snay’s testimony confirming his breach of its terms, we reverse the order entered below granting Snays’ motion to enforce the agreement.” Gulliver Schools, Inc. v. Snay, 137 So. 3d 1045, 1048 (Fla. Dist. Ct. App. 2014) Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

27. Key takeaways • Use publicly available resources to investigate your case • Background information on witnesses • Key elements of cases • Get creative, but be mindful of ethical obligations • Have constant conversations with your client about his or her social media use • Before the case, during the case, at resolutions of the case • Involve the Government at all times – useful resources for obtaining information, and give full disclosure about your clients use • If nothing else, make sure you’re talking about social media in your practice!