“No matter what the jury decides, the secret empire demands death,” proclaims the cover of Marc Spector: Moon Knight # 17, published way, way back in 1990. That doesn’t sound like something you would find in the pattern jury instructions, does it? We do suppose, though, that if your name is Marc Spector then you are somehow destined to become a cryptic superhero.

Congratulations to our own Ron Tate, who was recently chosen to receive the Home Builders Association of South Carolina (HBASC) Thomas N. Bagnal Associate of the Year award. If you’re not already following Ron on Twitter, here’s your chance.

Speaking of social media, don’t forget that you can follow Abnormal Use on Facebook! Click here to do so.

Our favorite legal tweet of late concerns the famous monkey copyright case. Enough said:

omg this entire intro is just amazing cc @sarahjeong pic.twitter.com/nFtLVm8DLs

— pacerrssscraper (@pacerrssscraper) November 7, 2015

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

First and foremost, the investigating party should use informal means to capture or preserve any social media profiles on the litigant at issue.  There’s all sorts of articles out there on how to do just that. To this day, some users still maintain fully or partially public social media profiles (even after so many years of articles like these promoting social media discovery). One would want to promote and get views from The Marketing Heaven.  One can capture that data in a variety of ways, either by printing a PDF, utilizing a screen capture, video capture (if the case merits it), and/or saving the image files to one’s desktop in their original JPEG format for later usage.  Remember, too, to note the date, time, and manner in which the data was captured in case that information is needed later for authentication purposes.

It may be that your own informal searches and preservation will obviate the need for a subpoena to Facebook (which, as Ernie notes, will retain its own law firm to handle subpoena responses and ensure, as already noted, that your battle is costly and ultimately unsatisfying).  However, if you feel that formal discovery tools are still necessary, remember that when lawyers issue subpoenas, they necessarily alert their opponents to sources of relevant information. So, if you are going to tip your hand, and the case justifies it, the following is one potential approach.

To address all potential needs in one volley, you can simultaneously serve the following:

1) The subpoena to Facebook, using some of the helpful tips identified by Ernie in his post.

2)  Subpoenas to any other social media entities you have identified.  Once your opponent knows you are after social media data, it’s best to obtain all that you can in one fell swoop.

3)  Requests to admit seeking to authenticate the profiles you informally located.  In addition to the genuineness the profiles, you may also want to request that the litigant admit that he or she uses certain handles, user names, user numbers, or email addresses associated with the account.

4)  Interrogatories and requests for production seeking copies of the private areas of the social media profile.  As Ernie notes, you may wish to encourage your opponent to use the “Download Your Information” feature to capture all relevant data (although you should probably expect an objection that the information sought is irrelevant, overly broad, and unlimited in time).

5)  Supplemental responses to your opponent’s discovery to you.  It is likely that your opponent has served discovery requests that call for the information you have located.  Rather than resist that discovery, you may wish to supplement your responses to identify the data you have located (which you may already be producing in conjunction with your requests to admit).  This may assist you later if the court has any concerns about the profile data constituting an unfair surprise.

6)  Preservation letter.  In addition to the foregoing, you may wish to send your opponent a letter noting that you have identified this social media information and that you are aware of the likelihood of responsive imagery or text that is private which must not be spoliated.  You should go so far as to note that there can be consequences for spoliating social media data, just as there are for the purpose for inadvertent destruction of any evidence.

When one’s opponent receives the above volley of paperwork, he or she will most certainly be alerted to the fact that you believe that there is relevant social media data in the case.  But by serving all at once, you may protect yourself against potential spoliation of evidence (or at least preserve your ability to argue later that you advised your opponent to safeguard the data).

(This post was originally posted on the now defunct North Carolina Law Blog on November 16, 2011).

We  are often asked – sometimes even by interested coworkers – how to blog.  Good question. Sometimes they are legitimately curious, other times they just wonder how and why we do the nerdy things we do.  We’ve seen this question addressed on many a blog, but a good many of them miss the point.  The curious readers are not really asking how to create a blog, design a blog, or promote a blog, but rather, how to sit down and engage in the process of writing and editing a blog entry itself.  That’s the real trick, isn’t it?  How do you determine what to discuss on your blog?  Once you figure that out, the rest is easy.

When you think about it in detail, the quest for subject matter – blog fodder – is the easiest part of blogging. We’ve all got legal anecdotes, war stories, and opinions on issues large and small.  You can write not just about the latest cases, but about your legal pet peeves, awkward moments at depositions, and even our thoughts on the blog entries of other writers.  Really, any story you tell another lawyer at lunch or any minor tirade you embark upon as the result of an irksome legal annoyance is appropriate and good subject matter.  Anything you read in the news, anything you see in pop culture, or anything you encounter on the vast expanse of the Internet can prompt a post large or small, even if it only offers the tiniest connection to the world of law.

But even armed with an idea for a post, some would-be bloggers face a challenge in converting it into a proper blog post.  This, too, can be easy, if you approach the task in the proper way.  Lots of writers become discouraged with the idea of drafting a post. To them, blogging is the difficult task sitting down in front of a blank computer screen on a single occasion and then formulating an idea for a post, writing it, and editing it, all in one sitting.  Just as with a motion or brief, it’s stressful when you sit in front of a blank screen on the computer and know that you cannot get up again until you have finished a draft. There is a better way.  Bloggers should carry blog ideas with them and allow them germinate and develop in their minds before sitting down to write the post.  They can scribble notes on a legal pad, or if they have the ability and desire, dictate a rough draft of a post.  That way, when they sit down in front of their computer, they’re not facing blank screen but starting with a series of their own notes or even a dictated rough draft of the post.  This makes it much easier to complete the task – they’re not producing a post out of thin air but massaging earlier work product into a final post.

So there you go, would-be bloggers. Have at it.

(This post was originally posted on the now defunct North Carolina Law Blog on March 14, 2012).

We here at the Abnormal Use law blog and Gallivan, White, & Boyd, P.A. wish you a happy and safe Halloween weekend. Above, in honor of the occasion, you’ll find the cover of Ghosts #45, published way, way back in 1976 (when the major publishers dabbled in horror comics). We felt it an appropriate comic book cover for today of all days. If you like, you can peruse a gallery of covers from the Ghosts series over at the Comicvine website by clicking here. Whatever the case, stay safe and enjoy your candy. We’ll see you on Monday.

Happy Halloween, dear readers! To celebrate, we direct you to comic book cover above, that of Batman #237, published way, way back in 1971. “A Haunting Halloween Novel,” the cover proclaims the issue to be as we bear witness to Batman and Robin battling the Reaper. We’d actually never seen this comic book cover before today, and we must confess that we’re a bit curious about it. Presumably, though, Batman and Robin prevailed, as we know the comic book series continued with them. I suppose we should offered a spoiler alert for that?

We must confess that we adore Halloween-themed popular culture. Five years ago, way back in 2010, a few Abnormal Use writers revealed their favorite scary movies. See here to revisit that piece. Our editor, Jim Dedman, wrote as follows:

The scariest movie I’ve seen would be, of course, Stanley Kubrick’s The Shining, although that is not the best story I have about a fear-filled work of cinema. In July of 1999, I was a first quarter law student at Baylor University in Waco, Texas. That month, I faced one of my first – and most dreaded – finals: Civil Procedure. (That frightful test, written and administered by the now retired Professor Trail, was scary enough.). After enduring that test, I took the rest of the day off, drove to Austin, and saw The Blair Witch Project, then out in theatres for only a few days, at the now defunct Dobie Theatre. Shot in a point of view fashion, the film profiled the misadventures of a group of students who venture out into the Maryland woods to explore the Blair Witch myth. The now defunct Dobie was a small, indie venue, and the particular theatre we were in had less than hundred seats. Imagine seeing that movie in such a place before all the hype and newspaper coverage ruined the original guerrilla style marketing of the film. At that time, there were still people who somehow believe the “found footage” was real. Of course, at the end of the day, I can’t say which was more horrifying, the film or the final.

Meanwhile, writer Nick Farr picked a different film:

Before I saw The Exorcist as a young teenager, I thought I was pretty tough. The Shining was boring. “It” made me laugh. Halloween just left me with a childhood crush on Jamie Lee Curtis. There was something about The Exorcist, however, that affected me in a way that Betsy Palmer (a/k/a Mrs. Pamela Voorhees) yielding a machete simply could not. Maybe if Michael Myers would have spun his head around backwards, Halloween would have been more to me than a breakthrough performance for another Hollywood starlet. Maybe if Pennywise the Clown would have crab-walked down a flight of stairs, I would not have thought of “It” as an adult-sized Bozo. Even today, when I reminisce about Regan walking into that party and innocently proclaiming, “You’re going to die up there,” chills run down my spine, and those feelings I felt seventeen years ago are resurrected. Tonight, I better sleep with the holy water.

Stay safe during your trick or treating this weekend!

Apparently, this villain depicted on the cover of Superman #314 is “Superman’s Judge, Jury, and Executioner.” That’s troubling. However, we find ourselves more intrigued by the promotion that the reader might find him or herself as an extra in the first Superman movie!

Um, did you see the voir dire depicted on this week’s episode of “Modern Family”? Yikes.

Speaking of pop culture, any thoughts on the new “Star Wars” trailer? After the prequels, we are bracing ourselves for disappointment, although we must confess that we are cautiously optimistic in light of everything we’ve seen to date.

Our favorite tweet of the week involves the law of donuts:

Look, kids, if you leave the donut in the box you have abandoned it even if you broke a piece off and wanted the rest later. It’s the law.

— Harvest Ceremony Hat (@Popehat) October 18, 2015

If you’ve been on social media at all this week, then you know that today, October 21, 2015, is Back To The Future Day. In the 1989 film Back To The Future II, Marty McFly, who we shouldn’t even have to say was played by Michael J. Fox since it is such common knowledge, travels to this very day in 2015. Today, his distant future was our present. How about that?

Much has been written this week about the predictions, some zany, some accurate, that were made in the film. We’re pleased to see that the prediction that all lawyers had been abolished by 2015 did not come to pass. We wonder what Walter Olson thinks about that, though.

Above, you’ll find the cover of Supernatural Law #38, and we must confess we dig it. “My case has become such a personal issue for my attorney – she doesn’t even notice I’m disappearing!” exclaims a client facing more than legal issues, it seems. We wonder if any of the ethical bodies of the state bars have addressed the issue of a partially disapparating client.

If you’re in Charlotte next week, you might be interested in a CLE that our editor, Jim Dedman, has planned for the Mecklenburg County Bar. It’s called “Bitcoin Basics for Lawyers,” and you can find the program and registration information here. If you’ve ever wondered about the nature of and law governing this cryptocurrency, there’s no better time to learn how it might affect your practice.

We tend to agree with this writer that emojis are ruining civilization. Any thoughts, dear readers?

Our favorite legal tweet of late is from our own Stuart Mauney, who congratulates our own John Cuttino:

Congrats to @GWBLawFirm partner John Cuttino @SCLitigator for election to Pres-Elect of DRI! Proud to call him my partner.

— C. Stuart Mauney (@stuartmauney) October 15, 2015

There are those moments when you are in the room, waiting for the other parties to arrive at the deposition, when conversations inevitably turn to that topic of topics:  iPads. Who can resist?

Recently, under such circumstances, I had an interesting conversation with a court reporter in which we discussed the possible future usage of iPads during the deposition process.  Certainly, already, lawyers are bringing their deposition outlines and documents to depositions on their iPads, laptops, or tablets.  With utilities like Dropbox and other online file storage utilities, lawyers or their staff members can place sizable PDF files in shared folders and make them accessible to the lawyer at their deposition. (Let’s assume for the purposes of this blog entry that any file sharing security and safety concerns are not at issue, shall we?)

The chief practical advantage of this approach is that the lawyer need not take boxes and boxes and boxes of voluminous potential exhibits to the deposition. Wouldn’t that be nice? Sigh. There have been cases during which I have had to take multiple boxes – each full of red wells, folders, papers, binders, and such – to the deposition.  You’ve got to have your notice of deposition, accident report, witness statements, and other records ready to be admitted into the record. Plus, you must carry with you a number of potential exhibits, as well. You never know what might become relevant; perhaps the witness will make a remark which requires the usage of voluminous medical or employment records as exhibits.  Perhaps you’ve dug up lots of dirt on the witness and want to reserve the right to confront him or her with documents to that effect.

But why are we are we continuing to bring these papers with us to depositions?  Well, the custom is, and the rules generally require, that the deposing lawyer provide copies of each exhibit to any lawyer present at the deposition.  We also need for the witness to be able to physically hold a copy of the exhibit, which, of course becomes the property of the court reporter who attaches it to the deposition in question. Lots of paper, that.

There’s a better way.

For most exhibits, we could simply produce a PDF on our iPads and show the witness the document in that format.  Prior to doing so, we could email a PDF of that exhibit from our iPads to all the lawyers present at the deposition so that they could have a copy to review on their laptops, PDAs or iPads.  Finally, a copy could be emailed to the court reporter to attach to the deposition itself, thereby sparing the need for multiple printouts of these exhibits (particularly when certain exhibits were probably already brought by all of the lawyers present as part of their own preparation for the proceeding).  This certainly seems to be an appropriate approach for exhibits such as notices of deposition, discovery responses, and accident reports, all of which are almost certain to be introduced into evidence, that every attorney in the case already has anyway, and in all likelihood, brought with them to the deposition in the first place.

But what if you want the witness to draw the exhibit?  How can I do so if it is in digital format?  Well, there are even programs that will allow someone using a stylist to draw on a PDF that is imported in that program.

Such issues are easily overcome.

Someday, though, someday, we’ll be able to arrive at the deposition with just our laptop or tablet.

But, alas, that day has not yet arrived.

(This post was originally posted on the now defunct North Carolina Law Blog on Wednesday, April 11, 2012).

We hope everyone is having a good time at the DRI Annual Meeting in Washington, DC this week. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. have quite the contingent of representatives there, including our editor, Jim Dedman, as well as GWB lawyers John T. Lay, Gray Culbreath, Stephanie Flynn, Ron Wray, and John Cuttino. Say hi if you see us! And don’t forget that Jim is speaking on the McDonald’s hot coffee case this afternoon!

Who has seen The Martian? Has anyone confirmed Mat Damon’s character’s space law analysis? We may need to have one of our contributors investigate that monologue.

Our legal tweet of the week is an important one:

SC Bar & SC Legal Services have a legal aid hotline for victims of flooded areas. To request help from a lawyer-call 1-877-797-2227 ext.120

— annephutto (@annephutto) October 8, 2015