Common Sense: Unethical to Friend-Request a Juror

Pro tip: don't friend request jurors.

This is the sort of ethics opinion that only serves to fulfill the stereotype of lawyers as unethical slimeballs that would sell their first born if it meant more money / fame / power, or any combination thereof.  In case your curious, another prime example is the ethics rule that forbids a lawyer from sleeping with clients.

Just for good measure, the American Bar Association issued a 9-page opinion on how it's a bad idea to actively seek connections with jurors on social media; i.e., friend request, follow, etc.  

That being said, a lawyer can ethically access the publicly available portions of a jurors social media account.  There is plenty of information that can be obtained about a juror from public posts.  For example, if a juror were to like a fan page for a particular cause, politician, or event, that could provide insight into how a person would react to a tactic or line of questioning.  In most cases, the public portion of a person's Facebook account reveals age, sex, education and possibly even employment status.

iDiscovery Consulting provides this service, and it will be much quicker and affordable than a traditional jury consultant.  iDiscovery can even have someone on standby during the voir dire process to provide real-time support in the jury selection process.

A Speed Bump for the Scope of Social Media Discovery?

Is there an exception for social media discovery in sex-related civil cases?

In a previous post, I discussed court decisions that fell on both sides of the discovery battle: some courts have held that all social media content is fair game in discovery; while others have held that the requesting party must show some sort of basis for requesting the information before the court will compel unfettered access.  It really comes down to the judge (and how much publicly available evidence you can get to help your cause).

The case of Ogden v. All-State Career School (2014 U.S. Dist. LEXIS 56212) out of the Western District of Pennsylvania suggests that in a Title VII sexual harassment case, the court can take eventual admissibility concerns into account when deciding whether to grant an all-access pass to social media.

In this case, the Defense sought access to the Plaintiff's social media accounts partly on the basis that his interactions with other people may provide evidence that the Plaintiff was not subjectively offended by the words and statements used by his coworkers.  In other words, the Plaintiff may not be as chaste in word and deed as the complaint would have the court believe.  For those unfamiliar with Title VII sexual harassment claims, there is an objective (reasonable offensive) and subjective (actually offended) aspect to the claims.  Ergo, Howard Stern is effectively barred from filing a sexual harassment claim ever.  But I digress.

In his decision, the District Court Judge analyzed and adopted a line of cases that contemplates admissibility of the evidence under Federal Rule of Evidence 412.  This rule generally prohibits the introduction of past sexual behavior in order to prove a predisposition for such behavior.  The line of cases essentially holds that while evidence of sexually related communications very well may be relevant to the emotional distress of the plaintiff, the probative value is nonetheless outweighed by the prejudicial effect of such evidence.

The probative vs prejudicial distinction is based, in part, on the idea that what one feels is acceptable with one's friends is different that what is appropriate with one's co-workers and supervisors.   That may work on a superficial level, but I would be curious to find how many social media users are not friends or followers of at least some of their coworkers; thus blurring the nice little line drawn by the courts.

In any event, the Ogden order provides support for the idea that in sexual harassment claims, the discovery standard is not as liberal as Rule 26(b) leads one to think.  Instead of "reasonably calculated to lead to the discovery of admissible evidence", it's more "reasonably calculated to lead to admissible evidence."  It's only 3 words, but it essentially takes some admissibility questions out of the trial phase and puts them into discovery disputes.

New York Times: Most Criminals are Dumb

The New York Times provides a good rundown on just how pervasive social media is, both in the criminal law and civil litigation context.

There are a couple interesting points raised.  Lori Andrews, a social media expert and professor at Chicago-Kent College of Law sees the prevalence of social media as a "novel threat to the right to a fair trial."  In her view, many judges are "willing to admit anything from social media, without scrutinizing it closely" for authenticity, reliability and relevancy.

I've discussed how an expert isn't a foregone necessity in authenticating social media evidence, but I find the good professor's position to be somewhat alarmist.  If defendants did not have attorneys fully capable of attacking the authenticity or reliability of a piece of social media evidence, then perhaps Facebook could pose a threat to the 5th Amendment.  For whatever reason, as the article points out, criminals seem to enjoy publicizing their exploits on social media.  The Constitution is there, in part, to protect the right to a fair trial, not protect a criminal from his own lack of judgment. 

The article also explores the phenomena of potential jurors posting about defendants and trials while sitting in the jury box.  Apparently, a Washington man posted "OMG! jdg picked me 2 decide doods f8! Looks gil-t from here ;-)."  This brings to mind the old lawyer joke that a jury is comprised of 12 people not smart enough to get out of jury duty. 

The First Rule of Defrauding Social Security

It's not that hard - if you're going to fake a psychological condition in order to get Social Security benefits, try to avoid posting pictures and videos of yourself that prove you're a normal functioning adult.  And also: don't talk about defrauding social security.

Pictured to the right is Richard Cosentino, formally of the New York City Police Department.  He and more than 100 other people have been charged with defrauding social security as part of a scheme going back to 1988.

"The plot . . . involved four facilitators who helped coach hundreds of applicants on how to convince the Social Security Administration that they were entitled to monthly disability payments because they were unable to work at any job due to psychiatric conditions."  Half of the applicants were claiming injury as a result of 9/11.  

The 4 "facilitators" coached the alleged defrauders on how to act and dress depressed as well as intentionally fail memory tests.  The applicants claimed "that they were unable to perform basic life skills like cooking for themselves, grooming themselves paying bills and socializing."  

Unfortunately, it appears the coaching did not include helpful hints like:

• Don't post pictures of yourself riding motorcycles and jet skis
• Don't open and advertise a martial arts school and then post videos on YouTube with your awesome moves set to music
• Don't go on deep sea fishing trips and then post the pictures if you claim you cant leave this house (Richard Cosentino could have really used this tip).

Exit question: does social media cause people to lose common sense? Or does it simply highlight the people who already have no common sense to begin with?

Friend Request Overruled

A tale as old as time: judge sends friend request to plaintiff; plaintiff denies friend request; judge issues adverse ruling to plaintiff; judge gets disqualified.

One would like to think judges would exercise a little more discretion in their social media habits, and for the most part, that's the case.  However, every now and then, there's an exception to prove the rule.

Today, we have Judge Linda Schoonover from Florida's 5th district.  Judge Schoonover was presiding over Sandra Chace's divorce proceeding.  Over the course of the trial, the Judge sent a friend request to Ms. Chace.  Her attorney advised her not to respond.  When it came time for the final decision, Judge Schoonover issued a ruling that Ms. Chace felt was highly unfavorable to her.  Ms. Chace then asked for Judge Schoonover to be disqualified, and the Florida District Court of Appeal agreed.

The Court of Appeal felt the Judge's friend request in the middle of a proceeding was an ex parte communication, which violates Florida's Code of Judicial Conduct and "has the ability to undermine the confidence in a judge's neutrality."

To be fair, attorneys can fall victim to social media misjudgment as well.  While prosecuuting People v. Armstrong in California, the trial judge ordered the state to produce its key witness for an interview with defense counsel.  Given the nature of the case and history of alleged crimes, the prosecutor was less than thrilled with the proposition.  Unfortunately, the prosecutor referred to the order to produce in this fashion: "After I spent the day trying to prevent my 13 year-old star witness from being kidnapper, I found out I am getting the Prosecutor of the Year award from the Victims Service Center."

The trial judge felt the prosecutor's comments created a "substantial likelihood of materially prejudicing" the matter and demonstrated "an incredible display of poor judgment."  Ultimately, the court found no prejudice, so no mistrial was declared.  The judge did admonish the prosecutor and felt strongly enough about it to write an opinion.  Moral of the story: be careful with flippant comments about work, especially on social media where it can be easily documented.

Do You Need an Expert for Social Media Evidence?

Experts are expensive.  Is hiring one a necessary expense for social media evidence?

Questions of admissibility are up to the trial judge, and in most jurisdictions, the appellate courts review the decisions on an abuse of discretion standard.  Translation: I hope this post is helpful, but ultimately, the judge has the say on what's required to authenticate evidence and show it to the jury.

The threshold issue in determining if an expert is needed is whether the evidence requires scientific, technical or other specialized knowledge to understand.  You may recognize that from good ol' Federal Rule of Evidence 702, or the Daubert standard.  

Given the near ubiquity of social media, it doesn't seem likely that there are many jurors (or judges if you're in a bench trial) who aren't familiar with the likes of Facebook, Twitter, Instagram, LinkedIn and Pintrest.  FYI - there's way more social networking out there.

Anyway, if all we're talking about is authentication and chain of custody, then I do not think you need to run out and find a software engineer, computer expert or digital forensic expert to testify about how he found the Facebook post, printed it, and then ever-so-carefully walked it to the courthouse so the fine jurors could review it.  No, considering that most 4-year olds can perform that task, I don't think we need a post-doctoral candidate's expert opinion. 

But lawyers being lawyers (and judges being judges), it's always better if you have some precedent to prove your point.  May I suggest State v. Taylor, 178 N.C. App. 395, 632 S.E.2d 218 (N.C. App. 2006).  Mr. Taylor was found guilty of first degree murder, first degree kidnapping and robbery.  He appealed on several grounds, including the trial judge's admission of text message transcripts over Mr. Taylor's motion in limine; more specifically, Mr. Taylor argued that the text messages were not properly authenticated.

The prosecution authenticated the text messages by having a Nextel store manager testify that he downloaded the content of the texts from Nextel's website, printed them off, and then "ever-so-carefully walked it to the courthouse so the fine jurors could review it."  No, that is not in the opinion.  I'm quoting myself.

The North Carolina Court of Appeals found this to be sufficient and declined to reverse his conviction on these grounds.  Key to the Court of Appeals decision was Rule 901(b)(1) of the North Carolina Rules of Evidence.  Rule 901 provides a non-exhaustive list of ways to authenticate evidence.  Subsection (b)(1) allows a witness with knowledge "that a matter is what is claimed to be" to authenticate something.

The Court of Appeals also held that there need not be direct evidence that the person wrote the post as long as there is other circumstantial evidence form which the jury could infer authorship: Rule 901(b)(4) provides authentication may be made through "[a]ppearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circumstances."

The jump to social media posts is quite easy, especially since the store manager in Taylor printed off the information from a website.  As long as the witness can testify that he saw the post and there is other circumstantial evidence (say a photo of the person), then there is probably no need to hire an expert to perform this otherwise mundane task.

Spoliation and Social Media

The problem (there's just one?) with trying to preserve social media evidence is that by its nature, its dynamic and constantly changing.

In this article, Mike Hamilton provides a good example of a judge giving the dreaded spoliation instruction for failing to properly preserve social media evidence.

In Gatto v. United Air Lines (D.N.J. March 25, 2013), the defendants eventually gained access to the plaintiff's Facebook page.  The plaintiff supposedly elected to deactivate his Facebook page.  He then informed the defendants that any posts were now lost because Facebook automatically deletes your account 14 days after deactivation.  Fun fact: this is not true.  If you have deactivated your account, you can still log back in with your old credentials, and everything will be the same.  If you can go without social media for 14 days, give it a try.

Generally, in order to get a spoliation instruction, a party must meet four factors:

1. The evidence was in the party's control
2. There was an actual suppression or withholding of the evidence
3. The evidence destroyed or withheld was relevant to the claims or defense; and
4. It was reasonably foreseeable that the evidence would be discoverable.

If we're talking about one person trying to preserve information from one Facebook page, that's not too complicated.  But what about large multinational corporations who have hundreds of thousands followers and posts?  The task can quickly get out of hand.

Mike's suggestion is to limit the sort of information that is available on a company's social media account.  In other words, take steps to minimize anything that is not related to the company or its product.  If a company finds itself needing to preserve evidence, there's always the good ol' screen grab, but I don't recommend that.  Instead, it's better to hire a company to capture and preserve the data for you.

If you're the one trying to get the information, here's a cautionary tale for you:  most social media companies and cell phone providers are subject to the Stored Communications Act (SCA), which prohibits disclosure of personal information to anyone other than a governmental agency.  Facebook flat out refuses to comply with subpoenas, but not all companies have the same policy.

For example, a lawyer in Maine was suspended for 30 days, and a trial judge alerted state and federal authorities when a cell phone company turned over 50,000 texts in response to a subpoena from the lawyer.  If you can get the other side to voluntarily disclose the information or have the court order disclosure, that's a better idea than picking a subpoena battle with Facebook or Twitter and then possible running afowl of the SCA.