NEBRASKA PARALEGAL ASSOCIATION
IN BRIEF
VOLUME MMXVIII ISSUE 3
OCTOBER 2018
IN THIS ISSUE: From the President ..... 1 From the Editor ........... 3
FROM THE PRESIDENT: AMBER ROBERTS, ACP
Save the Dates ............ 4
Welcome to a new year! I’m thrilled to be your president and looking forward to seeing you at an upcoming luncheon or seminar. NePA is a wonderful association filled with passionate and knowledgeable paralegals.
Fall Seminar Recap ..... 5 Board of Directors ....... 9 CLE Committee .......... 10 New Members ........... 11 NALA Convention ...... 13
An important skill in today’s environment is the ability to embrace change and I ask you to do the same in your career, life, and our association. I’m not talking about change for the sake of change but rather change needed to keep us relevant and strong for
Getting to Know Your Officers ...................... 18 Facial Recognition Links 28 U.S. Reps with 28 Mug Shots ................. 22 Social Media Case Illustrates the Loosening Court Trends in EDiscovery................... 25
the next 40 years. NePA, along with nearly all other professional associations, has seen a decline in membership over the past years. What is the cause? There are several factors including an aging membership where many are at retirement age and new members are not being recruited or retained to replace them. Technology is another consideration as more people have access to free and low-cost quality webinars they can enjoy from the comfort of their desk chair or home to get the continuing legal education (CLE) which is so important to our profession. A third common reason is that prospective members don’t see the value of networking and don’t feel like they “fit in” to an association’s culture. So, what does this mean for NePA? We must make every effort to combat these trends and we need your help to do it…starting with embracing change! This past year the board and our committees made great strides including adding CLE options at several luncheons for those who find it difficult to get away for an entire day to attend a seminar, online registration for events and easy payment options through our website, surveys to better understand what motivates our members, and modifying the Bylaws and Standing Rules to be more inclusive in our definition of an Active Member.
www.nebraskaparalegal.org
Continued on Page 2
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PRESIDENT’S MESSAGE CONTINUED What’s next? This coming year we have additional changes we’re working on including focusing on our members to understand your challenges and needs from our association, reviewing our board positions and committees to make sure they are relevant and structured to enhance collaboration and innovation, and offering additional opportunities to get to know your fellow paralegals to make those vital connections within our community that so many of us have relied on to find necessary resources for our work as well as mentors and opportunities for career advancement. So, to current members, I ask you to join me in not only embracing these changes but also being a part of determining what the changes will be by joining a committee, responding to surveys, attending board meetings, or contacting a board member to make your voice heard. I also ask you to share the value of NePA with a non-member and invite him or her to join you at an upcoming luncheon or seminar. For non-members, I invite you to come meet our community. Come see what we’re all about and get excited for your future as a part of this wonderful association. We look forward to meeting you soon! Best,
SAPPHIRE SPONSOR
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FROM THE EDITOR Congratulations to the newly elected officers of NePA for 2018-2019! I have been appointed Official Publications Chair by President, Amber Roberts, which will be a new frontier for me. I am looking forward to working with my committee members, especially our newest member, Casey Ochs, as we continue producing this informative e-zine for the membership. I would encourage anyone who is interested in joining our committee or submitting an article to contact me at 402-444-1725 or Kim.Hansen@bhmginc.com. Enjoy the rest of the fall season and I look forward to seeing you at future NePA events.
Do you like what you’ve seen in this issue? Do you have questions or comments? Notice an error? Let us know at: Kim.Hansen@bhmginc.com.
Publications Committee:
Publications Committee Members Kim Hansen, Chair Casey Ochs Kimberly Brown, ACP Amber Roberts, ACP Shannon Persoma
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SAVE THE DATES October 24th- District I Luncheon (Labor & Employment Legal Update, Scott S. Moore of Baird Holm LLP) November 7th - District II Luncheon (Responding to a Serve from the Nebraska Equal Opportunity Commission, Brandie Hinkle of the NEOC) November 28th - District I Luncheon (The Power of Food, Jason Ott of Empowered Prevention)
Register for events at: http://nebraskaparalegal.org.
Board Meetings (5:30-7:30pm): January 8th Whitmore Law Office March 5th June 4th
January 23rd - District I Luncheon (Wind Farms, David Levy of Baird Holm LLP) February 13th - District II Luncheon February 20th - District I Luncheon (The European Union’s GDPR Has Changed the World of Privacy Law, Rick Jeffries of Cline Williams Beacon Hills, 6750 Mercy Road, Omaha) March 27th - District I Luncheon April 12th - Spring Seminar and Mid-Year Meeting (Mahoney State Park, Ashland) May 15th - District II Luncheon (Developing Defensible Deletion Strategies, Reggie Pool, HBR Consulting LLC - Ameritas, 5900 O Street, Lincoln) May 22nd - District I Luncheon
August 6th (budget) Gavilon October 8th
June - District I Evening Event August 14th - District II Luncheon September 2019 - Recognition Breakfast, Annual Meeting and Fall Seminar (Scott Conference Center, Omaha) October 23rd - District I Luncheon November 13th - District II Luncheon November 20th - District I Luncheon
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FALL SEMINAR RECAP We had a fantastic Recognition Breakfast, Annual Meeting, and Fall Seminar this year! I’m excited we were able to provide a beautiful venue at the Scott Conference Center which was recently renovated to provide a perfect atmosphere for our event. The Recognition Breakfast had over 100 people registered to attend and even though there were at least two different accidents that morning on the highway, our Keynote Speaker, Susan Ann Koenig was able to make it and gave a wonderful speech on “The Power of Paralegals.” She really recognizes the value that paralegals have due to their many skills like organization and attention-todetail, but also those less recognized such as our ability to form a trusted relationship with our attorneys and provide a soundingboard and counsel of a different nature when needed. Susan Ann Koenig
I was proud to show our association off to the many visitors in attendance including the contingents from Baird Holm, Koley Jessen, and Mutual of Omaha in particular. They all had over 10 people in attendance each and really showed how much they value their paralegals!
Angel Younger and Cierra Cummins
Angel Younger and Caryn Redding
It was a full house with over 100 people registered to attend!
We also had a great message from our President, Bridget Stuhr, and got to showcase our award winners (Caryn Redding - NALA Affiliates Award and Cierra Cummins - CP Scholarship Award).
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FALL SEMINAR RECAP After the Recognition Breakfast, we moved to the seminar room where we continued with a presentation from Susan Koenig on “The Miracle of Multi-tasking and Other Myths.” This was such an eye-opener for many of us, especially with the in-class work she had us do to prove that multi-tasking (or “switch-tasking” as we learned) is less efficient, frustrating, less accurate, and takes more time! I’ll be using her tips and strategies to make my work more focused. We then held our Annual Membership Meeting and Election of Officers. Bridget Stuhr, our fearless leader, did a great job of keeping us on time and on track. Janie Boswell and the Nominations and Election Committee then moved us through each Koenig Dunne ladies: Lori Froistad, Susan Ann officer position until we had a full board of directors. You can Koenig, and Michaela Seidl find a picture of our new board members and their names listed on page 9. We then had lunch which consisted of a salad bar. Now, you might think that is really boring...but look at the pictures below and tell me there weren’t fabulous options to choose from...including amazing desserts! Those croissants were as flaky, buttery, and delicious as they look!
We then had a presentation on “Contract Management in the Digital Age” from Mark Nastasi of CobbleStone Software followed by “When Memory Fails: False Eyewitness Identifications” from Leah Georges, President of the Board of Directors for the Nebraska Innocence Project. She had a great presentation and video which proved to be hilarious as several people completely missed the large black gorilla that walked directly across the screen! How can that be?...Come to our seminars and you might be able to find out! Our final presentation of the day was from David Kramer, a Partner at Baird Holm LLP. He was so good many suggested he would be an excellent candidate for our keynote speaker next year. His presentation “Sex, Drugs, and Rock and Roll: Timeless Topics in the Practice of School Law” was littered with useful facts, hilarious stories, and a sense that while things seemed to be changing, in reality, we see the same legal concepts...just with new twists.
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FALL SEMINAR RECAP We started Friday with an Ethics Panel. Sally Bisson-Best, Director of Legal Studies/Pre-Law Program at College of Saint Mary and Andrew Sagartz, Interim Director of Paralegal Program at Metropolitan Community College, answered a set of questions from our moderator, Jillian Tuck, as well as from the audience. The panel got great reviews for the format and our speakers kept the session lively and entertaining while impressing the importance of different ethical legal quandaries on us.
David Kramer
Our second session was on “Workers’ Compensation Tips & Tricks” from Joshua Woolf and Abigail Johnson, both attorneys at Engles, Ketcham, Olson & Keith, P.C. We were subjected to the many, many pictures of their adorable puppies...really very difficult to concentrate with all that cuteness on the screen, but we prevailed. I particularly liked their depth of knowledge and being able to provide us with the differences between Nebraska and Iowa laws. Just as reference, if you’re going to be injured in a work-related accident, Iowa is the place to be! Our next presentation was on “What is Information Governance & Why Should I Care?” by Scott Swanson. We got some good information on how information is an important asset to our companies and when not handled properly can have many legal implications including sanctions during the e-discovery process. We then had lunch. On the menu for Friday was a Mexican fiesta including chicken fajitas, beef tacos, chips and salsa, and all the toppings...plus cake! One of the most common comments we got on the evaluation forms was how much the food was loved and several people actually wrote “yummy!” We have great education at our seminars, but man...you need to check out the food too!
So, our stomachs were full and our eyelids heavy when Michaela Seidl of Koenig Dunne, one of our own members, got up to present on “Workplace Technology: Working Smarter, Not Harder.” She did an amazing job and was one of our highest rated speakers. Not only did we learn many new technical tips but she also threw in some humor to keep us entertained. She was open to comments from the attendees and learned a couple new tricks from them herself. Did you know you can add a bookmark in a PDF simply by highlighting the words you want to be the bookmark and then clicking to add the bookmark? It never ceases to amaze me how much knowledge we all have and how important it is for us to SHARE it with others in the profession. Maybe you have some relevant information and are able to be a speaker at a seminar too?
Leah Georges
Andrew Sagartz and Sally Bisson-Best
Michaela Seidl
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FALL SEMINAR RECAP We continued the day with a presentation from Dave Proksel on “Title and Closing Essentials.” He happens to know Bridget Stuhr and wasn’t afraid to use her name in all of his examples. It would have been even funnier if she was there during his presentation! We got good information from him on the importance of titles and what is needed for closings including stories when he’d been asked to skip some steps but refused even though they lost the business. Another example of how we must be ethical and good stewards for our companies as their reputations are on the line. Marcus Loudner, D4
Our final speaker was a last minute substitution for one who had a work trip come up unexpectedly. David Domina of Domina Law Group was so generous to fill in on such short notice and really saved our bacon! Not only that, but his method of delivering the presentation on “Voir Dire Basics and Techniques” was like nothing I’ve seen before. He didn’t touch his slides once and really they could just be used as reference materials. Instead, he walked us through the process of how he selects his jury and what biases he may need to overcome, both those the person recognizes they have and the unconscious ones they don’t. One attendee described it as “riveting.” Overall, this was a fantastic seminar that got great reviews and I’m excited to see what we come up with for next year. A few people to thank: Katie Wibbels for her fantastic centerDave Proksel pieces which also served as our door prizes, Tom Woodrome of Capitol Services who donated $100 as a door prize (Katie Wibbels happened to win it and another gift card but I think it was well deserved after all the work she put into the centerpieces), and Marcus Loudner of D4 who also joined us as one of our sponsors. A final and most important thank you to all the members of the Continuing Legal Education Committee who put in countless hours to pull off this event. Such a great job this year!
Josh Woolf and Abby Johnson
Centerpieces
Sarah Gigitashvili, Tom Woodrome of Capitol Services and Amber Roberts
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2018 - 2019 BOARD OF DIRECTORS
President President-Elect Past President Vice President Treasurer Secretary NALA Liaison District I Director District II Director Publications Editor Website Administrator Parliamentarian
Amber Roberts, ACP Kim Brown, ACP Bridget Stuhr, ACP Sandi Armstrong, CP Teresa Semerena, ACP Jillian Tuck, CP Caryn Redding, CP Courtney Pfeiffer, ACP Kari Schmidt Kim Hansen Michaela Seidl, CP Angel Younger, ACP
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CONTINUING LEGAL EDUCATION COMMITTEE We had a great Fall Seminar and got some really useful feedback from the evaluation forms. I’d like to share that information with you below. We want you to know that we read every evaluation and appreciate all feedback. We aren’t always able to accommodate everyone’s requests due to many factors including having opposing viewpoints (ex. some say too cold and others too hot), cost of the request (we must be fiscally responsible while looking to keep the cost of seminar reasonable), and unavailability for the request in the particular location or with regards to NePA’s requirements under our Bylaws and Standing Rules. Kim Brown, as the President-Elect, will be taking over the committee this coming year and would love to hear any ideas you have for speakers, topics, or other suggestions related to any educational offerings we have during the year. Feel free to contact her at kbrown@bairdholm.com. Highlights: Everyone who mentioned the location on the evaluation form liked the Scott Conference Center. It was a great facility with “yummy” food as a couple of you described it and the staff was professional and courteous. - We plan to hold seminar at the Scott Conference Center next year if the dates are available. We will also look to publish the menu we plan to have so you can plan accordingly. Of those who mentioned the setup, some really liked the new roundtables indicating they led to more interaction between attendees, among other things. A few preferred the classroom style setup, however, but indicated it wasn’t a deal breaker to keep the new format. One did mention that taking notes and watching the speaker was difficult where she was sitting. There were a few comments that said they would prefer lunch to be in a different room. No particular reason was given for this preference. - We considered this option originally, but to have lunch in a different room was an additional $600-$1200 and we didn’t feel that was a good use of our budget given the roundtable setup. There were several speakers you REALLY liked and we’ll look at bringing them back for future seminars and luncheons. - Susan Koenig, Leah Georges, Michaela Seidl, and David Kramer were all specifically requested to bring back including David as a keynote! There was a lot of positive feedback towards the Ethics Panel and the format we used for that. - We will look at bringing back this format for upcoming events. A few of your comments:
This was my first NePA Conference and I was very impressed. Keep up the excellent work. I liked the Scott Conf Center. It was easier to get to and had plenty of parking. I also liked the schedule & format. Loved the snacks & food - great variety; like the roundtables - more interaction with table mates. Venue & food was perfect! Easy parking & yummy options. Food allowed for various diets & ability to stick to it.
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NEW MEMBERS
WELCOME NEW MEMBERS!!!!! Elizabeth Kaup - Active Lauren Gebhart - Student Sarah Sargent - Student
EMERALD SPONSOR
Labor & Employment Update Speaker: Scott S. Moore, Partner Baird Holm LLP
October 24, 2018 **1 hour of CLE
Cost: Member $12 Non-member $17
Anthony's Steakhouse 7220 F. Street Omaha, NE 68127 11:00-11:30 Networking 11:30-12:30 Education & Lunch Register at http://nebraskaparalegal.org by October 19th
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NALA CONVENTION RECAP - ANGEL YOUNGER, ACP The 43rd Annual NALA Convention was in St. Louis, MO from July 11- 13. We had a handful of NePA members attend. The Convention was held at the Hilton at the Ballpark in downtown St. Louis directly across the street from Busch Stadium, home of the St. Louis Cardinals. It was also within walking distance to the Arch and several museums and restaurants. The Convention was paperless and you could simply scan your badge when you entered a session to automatically receive attendance credit. There were a wide variety of sessions. They again didn’t have an Early Bird Reception on Tuesday night, which was a little disappointing. I’m hoping they bring this back next year because I always enjoyed networking at that event. The Keynote Speaker was great! Eileen T. O’Grady, Ph.D., RN, NP talked to us about learning to say “no” and setting boundaries to keep our stress levels down. This is something we all struggle with but is very important for our personal wellness. She was very energetic and I enjoyed her presentation. Bridget Stuhr and Angel Younger
Wednesday was a full day of meetings and exhibitor booths. There were several exhibitor booths this year, and they handed out some great swag. Legalinc Corporate Services passed out their famous paralegal t-shirts. Lots of other exhibitors passed out pens, post-its, coffee cups, and candy. One of our NePA Sponsors, Tom Woodrome from Capitol Services, had a booth as well. Houston Paralegal Association was selected for the affiliate association presentation titled “How to Grow Your Association’s Membership with a Steller CLE Conference.” They talked about how they keep their membership fees low to stay competitive and increase membership. There are a few paralegal associations in their area with which they compete. They also have their conference in Galveston, which is very popular. They make sure there are lots of door prizes and they have several exhibitors with swag, which the members love. They also do social events, which is something NePA would like to do more of.
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NALA CONVENTION RECAP CONTINUED They held panel discussions during lunch on Wednesday. After lunch, everyone attended a CLE on “How to Handle Your Lawyers.” The speaker was John David Lackey, Esq. and he talked about challenges and issues that could arise in different types and sizes of offices. He was very interesting. The Annual Meeting & Awards was held in the afternoon. I was honored to accept Caryn Redding’s Affiliate Award on her behalf. She has been instrumental in setting up our distance committee and serves as chair. She also handles livestreaming our seminars so distance members can participate. She has been a very valuable member of our Board and we hope she continues for many years. This year NALA Affiliated Associations were able to share events they are proud of during the meeting. Alabama Association of Paralegals puts on a murder mystery during their seminar, which sounded really fun. Greater New York Paralegal Association, a newer NALA Affiliate, sponsored a “Take Back the Night” event to raise awareness for domestic violence and sexual assault in the community. This was their first time holding the event but they plan on continuing it annually. Louisiana State Paralegal Association also received a NALA Proclamation for stopping legislation that would not allow paralegals to use certified in their titles. We had our Affiliate booth set up at the Opening Night Reception on Wednesday night. The event was really well attended and people were lined up before it opened. We handed out magnet clips and everyone loved them. As usual, all of the Affiliates showed up with some great swag! Thursday was a full day of CLE sessions. I attended sessions on Technology-Internet Sleuthing, Criminal Investigation, Project Management in Electronic Discovery, and Dealing with Difficult People. They had so many great sessions it was difficult to choose and all of the speakers were great.
New NALA Board (left to right): Jill Francisco-President, Melissa Hamilton-Vice President, Debra OverstreetSecretary, Cheryl Nodarse-Treasurer, Nancy Jordahl-Area 1 Director, Michele Pfeifffer-Area 3 Director, Annette Brown-Affiliated Associations Director, Jane McKinnon-At Large Director, Debby Sawyer-At Large Director, Jeanne Elliott-CEC Chair, Carla Dennis-PDC Chair, Nanci Lilja-Certifying Board Chair, Kelly LaGrave-ACP Board Chair
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NALA CONVENTION RECAP CONTINUED We also had an All Convention Luncheon on Thursday. Our charity this year was Covenant House Missouri and $2,460 was raised. Friday was another day of CLE. I attended sessions on Talk Like a Leader, Advanced Project Management, and Team Excellence. Again, they were all great and very informative. They closed out the Convention on Friday evening with a reception and the Installation of Officers. Jill Francisco was installed as NALA President and they had a nice slideshow that was prepared for her. There may have been a few tears. Overall, 2018 was a great convention! There were a variety of CLE offerings. I love meeting paralegals that are also passionate about their careers. I’m looking forward to passing the baton to Caryn Redding who will attend the convention next year in Scottsdale, AZ to represent NePA. Mark your calendars for July 11-13, 2019. We hope to see many NePA Members there. It has been my pleasure to serve as NALA Liaison the last two years. Please contact me at angel.younger@kutakrock.com with any questions you may have regarding NALA. Thank you.
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Speaker: Brandie Hinkle, Investigator NE Equal Opportunity Commission
November 7, 2018 11:30 am - 12:30pm
Green Gateau 330 S. 10th St. Lincoln, NE 68508 Cost: $12 Members $17 Non-Members Register at http://nebraskaparalegal.org starting October 20th
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GETTING TO KNOW YOUR OFFICERS – COURTNEY PFEIFFER What is your current position on the board? District I Director. How did you end up in the paralegal field? I grew up surrounded by the law. My family has a long history of providing legal services in various capacities. In fact, my great grandfather started practicing law in 1920. The tradition was continued on by my grandfather, father, uncles, and now cousin. After spending several years determined not to go into the family business, I gave in and went back to school. It ended up being a great decision for me. How did you become involved in NePA? I became a member of NePA when I moved to Omaha from Des Moines. I was looking for a support network as I familiarized myself with the Omaha job market. I found both! What made you decide to join the board? I have had such a positive experience attending seminars and other educational opportunities provided by NePA. Also, I have met incredible people that have helped me to grow professionally, as well as personally. I wanted to join the board to give back to the organization what it has given me. I have a strong passion for continuing to help grow our profession. What has been the greatest benefit of being a member of NePA? I am a huge believer in educational growth. My favorite quote is, “Education is our passport to the future, for tomorrow belongs to the people who prepare for it today.” This has been certainly true in my career, and NePA is a big part of that continuing education process. Attending continuing education provided by NePA has allowed me to see other areas of the law I otherwise might not have been exposed to. What advice do you have for those looking to enter the paralegal field? My advice is to be passionate about whatever you do. If you love what you do, it will never feel like a job. What is/was your favorite job? I have honestly loved every part of my career. I have worked with some of the best attorneys and co-workers around. Each job has taught me so much. I could never pick a favorite. I love where I’ve been, and I definitely love where I am at now. Making the switch from a law firm to a corporation was a big change. I learn every day, and am constantly challenged to grow. I feel very fortunate to be part of the Law Operation at Mutual of Omaha Insurance Company. What is one of your professional weaknesses that you struggle to overcome? I am a perfectionist and overachiever. I constantly try to improve, and as a result, tend to overcommit myself. The last few years I have been working on finding the balance. I would define it as my weakness, and also my super power.
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GETTING TO KNOW YOUR OFFICERS – TERESA SEMERENA What is your current position on the board? Treasurer How did you end up in the paralegal field? Well, upon graduating from high school, I attended an expedited program at UNMC to obtain a degree in nursing but at age 18, found it was not quite to my liking. From there I went to UNO and I was working towards a degree with a French major. I had lofty dreams of travel and living abroad. Instead, I got married and promptly had two children. When I was ready to return to my studies, I decided to be a bit more practical. I happened to read in a magazine about an exciting up and coming profession working as a paralegal and thought, “hmm, I bet I would enjoy that.” I promptly started telephoning (no internet access back then) local colleges and was pleased to find that College of St. Mary was starting their Paralegal Studies program that summer in 1986. I was in the very first class. How did you become involved in NePA? I had worked several years in Iowa after graduating from College of St. Mary and then began working at Gross & Welch at the end of 2005. All of the paralegals at G&W were members of NePA and the firm supported and paid for membership so of course I joined! What made you decide to join the board? I was approached and asked if I had any interest in serving so I accepted the invite. What has been the greatest benefit of being a member of NePA? The friendships and professional connections I have made have been the greatest benefit. I really cannot say enough about the benefits I have reaped both personally and professionally. I have ready contacts to consult if I run into a snafu or an area of law that I do not regularly work in. The connectivity to the legal community is invaluable. What advice do you have for those looking to enter the paralegal field? Obtain as much education as you can and never stop learning. Be ready to take on any challenge that presents itself. You have to think on your feet, be brave and have a good attitude even if you do not have the first clue what to do next! What is/was your favorite job? I can honestly say that I have thoroughly enjoyed all of my jobs in some manner. I have worked in a variety of areas and learned so many things about the law and people over the years. I have fond memories of every job that I have held and I have many war stories that I can laugh about now. That of course adds to the richness of the experience. What is one of your professional weaknesses that you struggle to overcome? Technology, technology, technology. I always work on trying to learn more but often feel like I am still behind the eight ball. Often I think we all get too comfortable with always doing things one way and when forced to make a change or learn a new system, we struggle and resist, but to no avail. Change is inevitable.
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FACIAL RECOGNITION LINKS 28 U.S. REPS WITH 28 MUG SHOTS Yahoo.com writer Rob Pegoraro believes an ACLU study provided reason for everyone to think carefully about the evolution of facial recognition technology. In the study, the ACLU used Amazon’s Rekognition service to compare portraits of members of Congress to 25,000 arrest mugshots. The result: 28 members were mistakenly matched with 28 suspects. Recently, Microsoft’s president, Brad Smith, used the company’s blog to ask that the development of facial recognition systems not be left up to tech companies. Smith wrote that the technology “raises issues that go to the heart of fundamental human rights protections like privacy and freedom of expression.” According to the Yahoo article, he called for “a government initiative to regulate the proper use of facial recognition technology, informed first by a bipartisan and expert commission.” But author Pegoraro warns we may not get new laws anytime soon. He writes: “The nuances are complex, while Congress remains as reluctant as ever to regulate privacy. We may find ourselves stuck struggling to agree on norms well after the technology has redefined everything from policing to marketing.” The proliferation of connected cameras and databases for such images has made the technology nearly unavoidable and have put its powers beyond the control of consumers. The author cites a Georgetown Law Center study from 2016 that found that 26 states had opened such databases to police searches. “The problem is you can’t assume to know when a camera and its software identify you, that their recognition algorithms are accurate or that the underlying databases are always secure,” Pegoraro writes. He asserts that facial recognition is often done clandestinely. “Its accuracy is iffy, especially among non-white populations. Some 39% of the false matches in the ACLU test involved legislators of color, who only account for 20% of Congress. What’s more, companies can’t seem to stop data breaches from happening,” Pegoraro writes. In his blog post, Smith said such conditions often lead to government intervention. Pegoraro suggests the technology should not be used to put names to random faces “passing by.” This article first appeared in the September/ October 2018 issue of Information Management, © 2 0 1 8 A R M A I n t e r n a t i o n a l , www.arma.org. Reproduced with permission.
THE POWER OF FOOD Speaker: Jason Ott Empowered Prevention
November 28, 2018
Cost: Member $12 Non-member $17
Anthony's Steakhouse 7220 F. Street Omaha, NE 68127 11:00-11:30 Networking 11:30-12:30 Education & Lunch Register at http://nebraskaparalegal.org starting November 7th
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SOCIAL MEDIA CASES ILLUSTRATE THE LOOSENING COURT TRENDS IN E-DISCOVERY This article explores the scope of discovery in social media and considers cases that delve into the courts' treatment of discovery sanction requests since the passage of the revised Federal Rules of Civil Procedure in December 2015. The case decisions demonstrate how much the pendulum has swung in the direction of limiting discovery sanctions. Prior to December 2015, the scope of discovery included all information "reasonably calculated to lead to the discovery of admissible evidence.” This broad mandate wrought havoc on the scope of discovery because parties used this language to convince the courts to leave no stone unturned, particularly when it came to electronic discovery (e-discovery). The effect on litigation was tremendous, often leading to case settlements - irrespective of merit - simply because the cost of discovery far outweighed the amount at issue. To help alleviate this problem, the 2015 revised Federal Rules of Civil Procedure (FRCP) now limits discovery to relevant non-privileged matters, and, most notably, it has to be proportional to the needs of the case, as defined in Rule 26 (b) (1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. [Emphasis added.] Fed. R. Civ. P 26. Court Decisions Regarding Discovery Requests In the context of social media, examples of the scope of discovery requests include all online communications, including the following: Online profiles Log-in data and passwords Posts, messages, tweets, replies, re-tweets
Status updates, wall comments Groups joined, activity streams, blog entries Photographs and videos posted Because all social media communications are within the scope of discovery, the following cases provide evidence of how the courts have handled certain requests since the revisions to the FRCP.
'Private' Social Media Posts Are Still Discoverable Palma v. Metro PCS Wireless, Inc. concerned com-
pensation for unpaid hours. The defendant sought discovery of the plaintiff's social media activity to contest whether she was actually working during the allegedly unpaid time. The plaintiff objected to the scope of discovery on the grounds that she had activated her social media site's privacy settings to restrict who may view her postings. The court found that privacy settings do not provide blanket exemption from discovery, and the plaintiff was ordered to honor her discovery obligations even for information marked "private" in social media.
Requests for Logins, Passwords Are More Restrictive Moore v. Wayne Smith Trucking Inc. centered on a fatal accident. While driving his motorcycle, Deron Ross was struck and killed by the defendant's truck. The plaintiff alleged the defendant's negligent driving caused Ross's death. During discovery, the plaintiff sought information from the defendant's social media accounts that might have been relevant to the case, including access to logins and passwords. In response, the defendant identified his Facebook accounts but objected to providing usernames and passwords. The court declined to require the defendant to share login or password information. Instead, it directed that the defendant's postings be made available to the defendant's counsel for its review - not at the defendant's own discretion - to determine if they fit into one or more of the categories of discovery.
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SOCIAL MEDIA CASES CONTINUED dent, a court of appeals reversed an order from the trial court that required the petitioner to provide information on all of her cell phone activity during the six hours before the crash and the six hours after it. The appeals court found that while the petitioner's criminal case was pending, the lower court order violated her Fifth Amendment privilege against self-incrimination. This privilege can be asserted in any proceeding in which the person reasonably believes that the information sought could be used against him in a criminal proceeding, even if potentially relevant in a civil lawsuit for damages. By invoking this privilege, the person cannot be compelled to provide information that may incriminate him.
Requesting Prolonged Periods of Online Activity Is Over- Court Decisions Regarding Sanctions for Spoliation broad Artt v. Orange Lake Country Club Realty, Inc. concerned
employment compensation for unpaid wages. To mount its defense that the plaintiff was not actually working during the hours in question, the defendant sought content from her Facebook, MySpace, lnstagram, Linkedln, and any other social networking accounts posted between 7 a.m. and 7 p.m. on any date between June 19, 2011, and her last day of employment in 2013. The court found this request to be overbroad, unduly burdensome, and unreasonable and therefore denied the defense motion to compel production of the employee's social networking communications. Similarly, Giaahetto v. Patchogue-Medford Union Free Sch. Dist was a disability discrimination case with a focus on the plaintiff's emotional state. As part of its defense, the defendant requested the plaintiff's Facebook archive from 2006 (the year Facebook became available) until her death in 2013. The court found the scope of the request to be flawed because it was not limited to a reasonable period. The court did allow a limited scope of discovery by permitting a sampling of the plaintiff's Facebook activity from November 2011 to November 2013, restricting it to any "specific references to the emotional distress [Plaintiff] claims she suffered" in the complaint, and to any "treatment she received in connection [there]with."
Cell Phone Activity Has Fifth Amendment Protection In Restrepo v. Carrera, which concerned a deadly acci-
Rule 37(e) of the FRCP has been amended to address how the courts need to treat the issue of sanctions for spoliation (destruction) of evidence. Under Rule 37, if electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a parry failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may: Upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or Only upon finding that the parrt acted with the intent to deprive another parry of the information's use in the litigation: - Presume that the lost information was unfavorable to the party; - Instruct the jury that it may or must presume the information was unfavorable to the party; or - Dismiss the action or enter a default judgment. Thus, the court has two avenues in deciding whether to issue sanctions if evidence goes missing. Where the court finds an intent to deprive or spoliate the evidence, the severity of sanctions may be increased. This is where recent case law has shown tremendous restraint on the part of the courts, which have issued sanctions only in the most extreme cases. This new direction should give organizations more peace of mind in knowing that only the most intentional acts of spoliation - as opposed to unintentional loss of data that could occur during routing and good-faith operations - will warrant serious sanctions. Representative examples of this case law are discussed next.
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SOCIAL MEDIA CASES CONTINUED No Immediate Sanctions for Failing to Provide Website Content McFadden v. Washington Metro. Trans. was a case that concerned defamation and infliction of emotional distress. Among the defendants was a physician whom the plaintiff accused of diagnosing him with psychiatric and psychological conditions the plaintiff did not have. This diagnosis allegedly impaired the plaintiff's reputation at his workplace. This defendant claimed the forum state court where the plaintiff filed his lawsuit lacked personal jurisdiction over him - in other words, that the plaintiff had sued him in the wrong court. In an effort to demonstrate that the court did have jurisdiction over the doctor, the plaintiff presented a screen shot of the defendant physician's website which represented that the physician "has performed over five hundred Independent Medical Evaluations (IME) on behalf of attorneys, insurers, and employers in the state of Maryland and Washington, D.C. areas." The court attempted to access the doctor's website at the URL shown on the plaintiff's screen shot, but by the time the matter was before the court, the site had been taken down. Rather than issue severe discovery sanctions, the court simply granted further discovery into the issue of where the defendant did business. The court noted that it was "troubling" that the website no longer existed. It warned that if the defendant could not produce an accurate archive of his website prior to the next hearing, sanctions for spoliation could be issued. The court explained that further discovery was warranted since the physician's claim that he had no ties with the forum state were contradicted by evidence that he solicited business in the forum state where the plaintiff filed his lawsuit.
No Sanctions for Destroyed WhatsApp Messages Moulton v. Bane was a suit brought by the buyer of the defendant's butcher shop assets after its financial collapse. Among other things, the plaintiff alleged the defendant made fraudulent misrepresentations to induce him to purchase the assets and thus breached their agreement. At issue in court were the defendant's communications on WhatsApp, some of which were destroyed while the lawsuit was pending. The plaintiff sought sanctions against the defendant in this action on the grounds that the defendant discarded more than 1,600 WhatsApp messages. In its defense to the sanctions request, the defendant
contended the messages were lost without his knowledge when he replaced his smart phone, which happened to be while the action was pending. The defendant assumed the messages would be transferred to his new phone by the cellular service provider. In his motion for spoliation sanctions, the buyer of the butcher's shop sought an adverse inference instruction, which is an instruction to the jury that it may presume the lost evidence was unfavorable to the party who lost it. The court found that the loss occurred through the routine operation of an electronic information system; that there was no evidence of intent to destroy discoverable evidence; and that the messages were later recovered through other means. Thus, the court found no evidence of intentional misconduct to warrant such a serious sanction as an adverse inference instruction to the jury.
A Case of Adverse Inference Instruction far Spoliation Congregation Rabbinical College ofTartikov, Inc. v. Village of Pomona involved a religious congregation's action
against a community in California. The plaintiff challenged certain zoning and wetlands laws that it viewed as discriminatory. At issue were social media posts made by the defendant nearly six years after the litigation was commenced and a litigation hold had been issued. Given the legal hold and the destruction of social media posts during the litigation, the court found that the required element for spoliation sanctions against the village had been established. The court found the village and its mayor had an obligation to preserve social media posts and related text messages as of the date of the postings. Accordingly, the court granted an adverse inference instruction; the jury was told it could infer that the contents of the social media posts indicated discriminatory hostility by the village towards the Hasidic Jewish population.
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SOCIAL MEDIA CASES CONTINUED This case shows how extreme the circumstances must be before a court issues severe sanctions for spoliation. In this matter, the social media posts were destroyed well after the lawsuit had begun and should have been preserved as part of the litigation hold.
Moving Away from a 'Scorched Earth' Approach Roberts v. Clark County School District, a gender discrimination and emotional distress case, illustrates the court's distaste for a "scorched earth," or "leave no stone unturned" approach to discovery. Here, the plaintiff was a female-to-male transgender police officer employed by the school district. After legally changing his name, he requested his employment records be changed to reflect that he was male. Subsequently, the plaintiff was subjected to inappropriate comments about his sexuality and to overly intrusive and unnecessary demands for information about his gender and genitalia. During discovery, the defendant sought an order compelling the plaintiff to produce years of medical records, healthcare history, access to his social media sites and email addresses, and more. The plaintiff objected to the sweeping discovery requests, saying his employer did not have the right to rummage at will through his personal information, which he had limited from public view. The court here went out of its way to express its desire to upend the "scorched earth" approach to discovery. The court found the demand for information from the plaintiff's social media profiles was overbroad and that the plaintiff was not required to turn over his social media sites and e-mail addresses. However, the court did instruct plaintiff's counsel to review content from the plaintiff's social media sites and to produce the following: anything referencing this lawsuit, the defendant's response to the plaintiff's transgender transition, the plaintiff's emotional response to his transgender transition, and the manner in which he was treated by school district employees. Other than those limited activities, the court denied the defendant's request to produce medical, employment, administrative, and tax records. Instead, the school district was required to ask the plaintiff about his distress at a deposition. In doing so, the court essentially called for an end to a scorched-earth discovery approach. Rely on Routine IM Practices to Avoid Sanctions The case law cited in this article illustrates the ap-
proaches the courts have taken to broad requests for social media content in the discovery process. In terms of scope, there is a clear pattern of narrowing discovery requests to more reasonable measures. Further, the courts are showing greater reluctance to issue severe sanctions, while issuing a warning shot to parties that the days of "scorched earth" discovery are past. For information management professionals, this means that a reliance on routine, good-faith business operations will help their organizations avoid serious spoliation sanctions. Editor's Note: This article is based on the 2017 ARMA International Annual Conference presentation "Ensuring Social Media Litigation and Discovery Readiness" and an updated version presented with the Honorable Ron Hedges, a retired federal magistrate, at the 2018 MER conference. About the Authors: John Isaza, a California-based attorney, is CEO of Information Governance Solutions. He is also a partner at Rimon, where he chairs the records management and information governance practice. He is co-author of 7 Steps for Legal Holds of ESI & Other Documents, a contributing author to the ABA's Internet Law for the Business Lawyer, 2nd Ed., and editor-in-chief and co-author of Handbook on Global Social Media Law for Business Lawyers. He can be contacted at john.isaza@rimonlaw.com. Brent Martindale, also a California-based attorney, is associate counsel at Information Governance Solutions. Prior to beginning his legal career, Martindale served in the U.S. Marine Corps. He can be contacted at
brent@infogovsolutions.com.
This article first appeared in the September/October 2018 issue of Information Management, Š2018 ARMA International, www.arma.org. Reproduced with permission.