Skirmishes Over Use of Social Media in Litigation Continue to Intensify

Since our prior two posts on the issue, there have been several developments showing that questions about the proper use of social media in litigation continue to abound. These developments demonstrate that practitioners who fail to stay on top of the latest developments in this area – both in terms of the potential appropriate and beneficial uses of social media and the potential risks associated with this medium – do so at their peril.

Most recently, a plaintiff in a personal injury case received a reduced award from a jury after the defendant introduced, at trial, certain of the plaintiff’s Twitter messages, which discussed traveling and partying after the car accident at issue. See Mark Niesse, Twitter Sunk Woman’s Award after Car Crash, N.J. Law Journal (Jan. 2, 2013). This outcome follows a similar case, in which a judge reduced a monetary judgment awarded to a man who sued over the death of his wife in an accident, after the court learned of a post-accident Facebook photo that showed the man wearing a garter belt on his head and a t-shirt with the phrase “I love hot moms” on it. See Zach Winnick, Social Media an Ethical Minefield for Lawyers, Law360 (Apr. 13, 2012).

The takeaway from these cases is that attorneys need not only to monitor the social media postings of potential clients before taking a case; they also need to continue vigilant monitoring of posting after the representation begins. Attorneys also should urge caution to their clients about what they post on social media sites.

Courts also continue to grapple with the extent to which parties can obtain formal discovery of an adverse party’s social media information. As we noted in our last post on the issue, courts generally have been receptive to such discovery requests. See Barry Buchman and Emily Grim, Recent Ethics Charges Against Attorneys Demonstrate Need for Full Understanding of “Do’s and Don’ts” of Using Social Media, We’ve Got You Covered – Insurance Law Blog (Sept. 11, 2012) (citation omitted). But, in a recent decision in an employment discrimination case, a federal magistrate judge ruled that the bulk of the defendant’s request for social media discovery was too broad. Although the judge granted a portion of the discovery request, the decision did take a narrower view of permissible discovery in this area than certain prior decisions. See Abigail Rubenstein, Courts Struggle to Lay Out Social Media Discovery Limits, Law360 (Sept. 20, 2012).

Finally, courts continue to crack down on improper juror use of social media during trials. Just as jurors cannot go to an accident or crime scene during a trial without court supervision, or give interviews about a trial while it is ongoing, jurors likewise cannot conduct online research about a case during trial, or exchange “Tweets” with reporters about it.

The potential negative impact on the judicial system of such improper juror behavior is very significant. In three recent high profile cases, a juror’s comments about proceedings on Facebook and Twitter put verdicts in jeopardy and generated debate over the best way to protect the impartiality of judicial proceedings in the age of social networking. See Juror Number One v. Superior Court, 206 Cal. App. 4th 854 (Cal. Ct. App. 2012) (requiring juror to turn over, for private review by the court, comments that he made on Facebook regarding criminal trial in which he had served as juror, after comments were discovered post-verdict); Dimas-Martinez v. State, 2011 WL 6091330, at *16-*17 (Ark. Dec. 8, 2011) (overturning conviction and corresponding death sentence after juror continued to post comments about case on Twitter even after court instructed him to cease such activity); U.S. v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011) (declining to overturn conviction for fraud, tax evasion, and obstruction of justice despite juror’s posts about the anticipated timing of the verdict on Facebook and Twitter, but acknowledging potential for such communications to undermine the impartiality of trial proceedings and encouraging district courts to instruct jurors as to such dangers).

Courts have attempted to crack down on such misconduct by confiscating jurors’ mobile devices at the start of each day, requiring jurors to sign a pledge to refrain from using social media at trial, or, in some cases, imposing fines or removing jurors from the panel. Most recently, in response to a national survey of federal trial judges showing growing concern regarding juror misuse of social media, the federal judiciary released new model jury instructions explaining the dangers of social media use and prohibiting jurors from communicating about a case via cell phone, email, blogs, or social media sites such as Twitter, Facebook, or YouTube. Significantly, these model instructions urge jurors to turn in other jurors who disregard these prohibitions.

Likewise, lawyers also can take an active role in identifying and preventing incidents of juror misconduct. As we discussed in a previous post, ethical and legal authorities agree that a lawyer may view a juror’s publicly-available online content during trial, as long as the juror does not become aware that the lawyer is monitoring them. See Barry Buchman and Emily Grim, How Far Can Lawyers Go in Researching Jurors on Social Media Sites, We’ve Got You Covered – Insurance Law Blog (July 11, 2012), quoted in Advice to Lawyers: Look But Don’t ‘Friend’ Potential Jurors, Wall Street Journal Law Blog (July 12, 2012). Indeed, at least one ethics panel has found that if a lawyer learns that a juror is engaging in misconduct, such as tweeting or blogging about the case during trial, the lawyer must promptly bring that information to the court’s attention. See N.Y. Co. Law. Assoc. Comm. on Prof. Ethics, Formal Op. No. 743 (May 18, 2011).

Gilbert LLP is a Washington-based law firm specializing in litigation and strategic risk management, insurance recovery and complex dispute resolution.