Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

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Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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As social media has become ubiquitous, courts are wrestling with more discovery disputes involving social media accounts.In a recent case, Crowe v. Marquette Transportation Co. Gulf-Inland, LLC, the plaintiff deactivated his Facebook account in an effort to be able to claim that he was no longer on Facebook. A federal court in Louisiana rejected this ploy, ordering the plaintiff to turn over all of his Facebook data to the defendant.Here’s the background story: On May 19, 2014, Brannon Crowe <a href="http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1913&context=historical" target="_blank" rel="noopener">sued</a> his employer, Marquette Transportation. Crowe claimed that, in April 2014, he had an accident at work that “resulted in serious painful injuries to his knee and other parts of his body.” Crowe sued for pain and suffering, medical expenses, lost wages, past and future disability, and other special damages.But Crowe may have unwittingly shot himself in the foot (or maybe the knee). The reason? Facebook.Around the time Crowe suffered his injuries, he sent a Facebook message to a friend saying that he had actually hurt himself while on a fishing trip. How Marquette Transportation got its hands on the message is unclear. Nonetheless, the message led Marquette Transportation to seek other Facebook information from Crowe in discovery. On October 17, 2014, Marquette Transportation specifically requested “the Facebook history of any account(s) that [Crowe] had or has for the period commencing two (2) weeks prior to the incident in question to the present date.”Crowe objected on several grounds. First, he claimed that his account had been “hacked.”Then he suggested that the account associated with the fishing trip message was not his because the name on the account was “Brannon CroWe” and he does not capitalize the “W” in his last name.Finally, Crowe claimed that he did not “presently have a Facebook account.” When questioned about that statement in a deposition, Crowe testified that, as of October 2014, he no longer had a Facebook account. Thus, Crowe was technically telling the truth; he had deactivated his account on October 21, 2014 (four days after Crowe received the discovery request to produce his Facebook account data).Deactivating your Facebook account, however, is not the same as deleting your account. As the Court noted, “It is readily apparent to any user who navigates to the page instructing how to deactivate an account that the two actions are different and have different consequences.” Under Facebook’s terms, deactivation simply means “your profile won’t be visible to other people on Facebook and people won’t be able to search for you,” and that, upon reactivation, “[y]our profile will be restored in its entirety.” In contrast, deleting your Facebook account “means you will not ever be able to reactivate or retrieve any of the content or information you’ve added,” and there is “no option for recovery.”As to Crowe’s claim that he was no longer on Facebook, the Court was having none of it. The court stated that “it is patently clear from even a cursory review that this information should have been produced as part of Crowe’s original response. This production makes it plain that Crowe’s testimony, at least in part, was inaccurate. That alone makes this information discoverable.”In short, the Court held that Crowe’s Facebook-related information was discoverable because Crowe had deactivated his account to keep the evidence from his employer—and did so only after he received a discovery request.Crowe may have inadvertently saved himself at least some trouble with the Court by deactivating his account rather than deleting it. This duty to preserve evidence in litigation extends to social media information and is triggered when a party reasonably foresees that evidence may be relevant to issues in litigation. As soon as he placed the source of his injuries at issue, Crowe triggered the duty to preserve. Deleting relevant social media data can result in <a href="http://www.sociallyawareblog.com/2013/04/16/spoliation-of-social-media-evidence-new-jersey-court-cracks-down/" target="_blank" rel="noopener">sanctions</a> against the deleting party because the information is not recoverable, which implicates spoliation of evidence issues. In contrast, Crowe’s Facebook data was still accessible upon a simple re-login.Even though Crowe did not delete his account, the Court was obviously unhappy with Crowe. The Court found that Crowe unnecessarily delayed the proceedings and wasted the Court’s time by deactivating his account. And, ultimately, the Court ordered Crowe to produce all information in his Facebook account to his opponent in its entirety.This case serves as a lesson that nothing good will come from deleting or deactivating your Facebook account to hide evidence. Even if deactivating a Facebook account to conceal damaging evidence does not constitute spoliation, because the data is ultimately recoverable, courts will inevitably come down hard on efforts to conceal evidence, even ham-handed and harebrained efforts.

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Effort to Hide Facebook Evidence by Deactivating Account Ends Badly for Louisiana Man