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Uarterly Vol ON COLOR BACKGROUND QUARTERLY VOL. 63, NO. 2 ON WHITE BACKGROUNDWINTER, 2013 SIDESTEPPING PREEMPTION: GENERIC DRUG LITIGATION IN THE AFTERMATH OF MENSING Jeffrey R. Pilkington and James R. Henderson MORTGAGE LENDING REFORM UNDER THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT John P. Scott, Jr. TAKE THIS AND GOOGLE THAT: THE ETHICS OF LAWYERS, JUDGES AND JURORS MEETING IN CYBERSPACE Brian L. Calistri, Jennifer E. Johnsen and Phil R. Richards TRYING A CASE IN CYBERSPACE Walter W. Dukes BROWSE THIS EDITION FEDERATION OF DEFENSE & CORPORATE COUNSEL PRESIDENT SENIOR DIRECTORS DIRECTORS EDWARD M. KAPLAN BRUCE D. CELEBREZZE EDWARD J. CURRIE, JR. Sulloway & Hollis PLLC Sedgwick LLP Currie Johnson Griffin Gaines Concord, NH San Francisco, CA & Myers PA 603-224-2341 [email protected] Jackson, MS [email protected] [email protected] STEVEN E. FARRAR PRESIDENT-ELECT Smith Moore Leatherwood LLP ANDREW B. DOWNS TIMOTHY A. PRATT Greenville, SC Bullivant Houser Bailey, PC Boston Scientifc Corporation [email protected] San Francisco, CA Natick, MA [email protected] 508-650-8616 H. MILLS GALLIVAN [email protected] Gallivan, White & Boyd, PA WALTER DUKES Greenville, SC Dukes Dukes Keating Faneca PA SECRETARY-TREASURER [email protected] Gulfport, MS VICTORIA H. ROBERTS [email protected] Meadowbrook Insurance Group J. SCOTT KREAMER Scottsdale, AZ Baker, Sterchi, Cowden MICHAEL T. GLASCOTT 602-445-5920 & Rice, LLC Goldberg Segalla, LLP [email protected] Kansas City, MO Buffalo, NY [email protected] [email protected] BOARD CHAIR MICHAEL I. NEIL DEBORAH D. KUCHLER SUSAN B. HARWOOD Neil, Dymott, Frank, McFall Kuchler Polk Schell Weiner Boehm, Brown, Harwood, Kelly & Trexler APLC & Richeson, LLC & Scheihing, P.A. San Diego, CA New Orleans, LA Maitland, FL 619-238-1712 [email protected] [email protected] [email protected] DONALD L. MYLES JR. ELIZABETH F. LORELL EXECUTIVE DIRECTOR Jones, Skelton & Hochuli Gordon & Rees LLP Phoenix, AZ Florham Park, NJ MARTHA (MARTY) J. STREEPER [email protected] [email protected] 11812 N 56th Street Tampa, FL 33617 [email protected] KENNETH J. NOTA HOWARD M. MERTEN 813-983-0022 Dryvit Systems Inc. Partridge, Snow & Hahn 813-988-5837 Fax West Warwick, RI Providence, RI [email protected] [email protected] DEBRA TEDESCHI VARNER LESLIE C. PACKER McNeer Highland McMunn Ellis & Winters, LLP Varner LC Raleigh, NC Clarksburg,WV [email protected] LIAISON-QUARTERLY [email protected] JAMES A. GALLAGHER, JR. W. MICHAEL SCOTT Marshall Dennehy Warner Beirne, Maynard & Parsons, LLP Coleman & Goggin PUBLICATIONS Houston, TX New York, NY [email protected] LATHA RAGHAVAN [email protected] Goldberg Segalla LLP Albany, NY FDCC QUARTERLY [email protected] EDITORIAL OFFICE EDITOR-WEBSITE Marquette University Law School EDITOR-FLYER Eckstein Hall, PO Box 1881 DAVID M. FUQUA GREGORY A. WITKE Fuqua Campbell, PA Milwaukee WI, 53201-1881 Patterson Law Firm 414-288-5375 Little Rock, AR Des Moines, IA [email protected] 414-288-5914 Fax [email protected] [email protected] FDCC HISTORIAN CLE COORDINATOR EDITOR-IN-CHIEF STEPHEN P. PATE FRANCIE BERG Fulbright & Jaworski lLP PATRICIA C. BRADFORD 3714 22nd Avenue South Associate Professor of Law Houston, TX Minneapolis, MN, 55407 [email protected] [email protected] STUDENT EDITOR 612-339-5863 KRYSTAL L. JOHN 612-339-1529 Fax QFDCC UARTERLY WINTER, 2013 VOLUME 63, NUMBER 2 CONTENTS SIDESTEPPING PREEMPTION: GENERIC DRUG LITIGATION IN THE AFTERMATH OF MENSING Jeffrey R. Pilkington and James R. Henderson ...........................................................52 MORTGAGE LENDING REFORM UNDER THE DODD-FRANK WALL STREET REFORM AND CONSUMER PROTECTION ACT John P. Scott, Jr. ..........................................................................................................86 TAKE THIS AND GOOGLE THAT: THE ETHICS OF LAWYERS, JUDGES AND JURORS MEETING IN CYBERSPACE Brian L. Calistri, Jennifer E. Johnsen and Phil R. Richards .....................................116 TRYING A CASE IN CYBERSPACE Walter W. Dukes ........................................................................................................153 Cite as: 63 FED’N DEF. & CORP. COUNS. Q. ___ (2013). The Federation of Defense & Corporate Counsel Quarterly is published quarterly by the Federation of Defense & Corporate Counsel, Inc., 11812 North 56th Street, Tampa, FL 33617. Readers may download articles appearing in the FDCC Quarterly from the FDCC website for their personal use; however, reproduction of more than one copy of an article is not permitted without the express written permission of the FDCC and the author. Copyright, 2013, by the Federation of Defense & Corporate Counsel, Inc. 51 FDCC QUARTERLY/WINTER 2013 Take This and Google That: The Ethics of Lawyers, Judges and Jurors Meeting in Cyberspace† Brian L. Calistri Jennifer E. Johnsen Phil R. Richards I. INTRODUCTION “Social media” – which Miriam-Webster defines as “forms of electronic communica- tion (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos)”1 – has transformed and will continue to transform the practice of law. Social media offers attorneys previously unimaginable outlets and resources for marketing, client develop- ment, collaboration, witness and juror research, and litigation and trial strategies. Like any powerful tool, however, social media must be used carefully and with a full appreciation of its concomitant risks and dangers. Social media is an ethical and legal minefield for unwary attorneys, clients, judges and jurors. This Article reviews some of the issues currently confronting attorneys as they navigate these largely uncharted waters. We first consider the guidance currently offered by the Model Rules of Professional Conduct. While the Model Rules do not (and could not) anticipate all of the questions and challenges posed by the use of social media, we think that they remain the touchstone governing an attorney’s conduct – in the real or virtual world. † Submitted by the authors on behalf of the FDCC Life, Health, and Disability section. 1 Merriam-Webster, Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/ social%20media (last visited June 12, 2013). 116 TAKE THIS AND GOOGLE THAT Brian L. Calistri is a graduate of University of Notre Dame Law School and Bucknell University. He is Chair of the Gen- eral Liability Group at the firm of Weber Gallagher Simpson Stapleton Fires & Newby LLP, and devotes his practice to the litigation and trial of general and product liability cases and commercial matters. He has tried numerous cases in the state and federal courts of Pennsylvania and New Jersey, with several recent jury trial victories garnering front-page stories in The Legal Intelligencer. Mr. Calistri has obtained jury defense verdicts in cases involving allegations of defec- tive products, medical malpractice, electric shock accidents, maritime injuries, and serious elevator accidents. He also serves as General Counsel for the Merit Elevator Contractors Association of America (MECAA). Mr. Calistri was recog- nized in 2002 as one of the “50 on the Fast Track: Top Attorneys in Region Under 40” in The Legal Intelligencer. In 2011, he was recognized by the publisher of the Pennsylvania edition of Super Lawyers magazine as being among the top five percent of practitioners in his practice specialty within the Commonwealth of Pennsylvania. Mr. Calistri is admitted to practice in Pennsylvania and New Jersey. He is a member of the Federation of Defense and Corporate Counsel, the Philadelphia Association of Defense Counsel, and the Penn- sylvania Bar Association. We next examine the most practical use of social media by trial attorneys – jury research. A juror’s social media profile can offer invaluable information and insights into potential prejudices and bias, and a trial attorney would be remiss in not taking advantage of such resources – before, during, and after voir dire. Indeed, some decisions suggest an attorney is required to conduct juror research through social media. That said, trial attorneys should remain alert to ethical and privacy considerations, as well as any local rules or restrictions on such activities. Moreover, social media research is an addition to, and not a substitute for, a trial attorney’s eyes, ears, and “gut” when assessing prospective and sitting jurors. Given the voluminous information available, trial attorneys must also be careful not to al- low the chaff to obscure the wheat. Not everything a juror writes, tweets or posts online is significant to the matter at hand. We conclude with a review of the issues presented by jurors’ use and misuse of social media. Jurors who have access to social media and mobile devices are posting, “tweeting,” and otherwise communicating their thoughts regarding proceedings, parties, attorneys, and judges before, during, and after trial. Jurors have also “friended” litigants and counsel. These types of communications and conduct are indisputably inappropriate, but what remedies and punishments should be imposed? We contend that a combination of clear and repeated directives from the court, prohibiting access to devices during proceedings, and meaningful 117 FDCC QUARTERLY/WINTER 2013 Jennifer E. Johnsen is a graduate of Suffolk University Law School and obtained
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