Posted by Jamie Dokovna on July 18, 2011

Social Media as Evidence?

Is your Facebook or Myspace account information private?  What about your blog or Twitter account?  More and more parties to lawsuits are finding themselves arguing that their social media accounts should be private and not subject to use as evidence in court proceedings.  But, these individuals are finding themselves on the losing side of the battle.  In fact, use of social media is becoming an increasingly popular litigation tactic.

Before use of social media sites skyrocketed, many lawyers used Google to find out information about their client's adversaries and even their opposing counsel.  Now, even more information is available through the use of sites such as Facebook and Myspace and the information obtained from these sites can often mean the difference between winning and losing.

Such was the case with Dorothy McGurk who lost her claim for continued spousal support of $850 a month from her husband.  Ms. McGurk claimed in her divorce that she remained disabled and unable to work since a 1997 car accident.  The only problem was that Ms. McGurk also liked to belly dance and she blogged about it.  Although no pictures were posted, due to Ms. McGurk's fear that her husband would "fry" her with them, the posts were all that the judge needed to deny her claim.

But, parties to a lawsuit aren't the only ones who have to worry about their usage of social media, this is an issue for jurors as well.  In a prior post, my colleague, Brian Willis, wrote about "friending" jurors and his own trial experience where several jurors had used their Facebook accounts to post information about his case.  This information was very telling and would not have otherwise been available to him, but for the jurors putting that information out there on the Internet.

So, what's the lesson here?  If you use social media sites be careful of what you post, blog, or tweet about.  If you don't want it used, don't put it out there because it can and will likely be used against you.

Posted by Brian Willis on July 15, 2011

"Friending" the Jury

"Friending" the Jury, obviously it is a bad idea, but, these days, social media status updates and friend requests are becoming part of the trial landscape.  In England a juror was recently sentenced to eight months in jail for "friending" and messaging the defendant in the middle of a multi-million dollar drug trafficking trial. The Court was forced to declare a mistrial.

In an effort to avoid such disasters, Florida's Standard Jury Instructions provide detailed instructions to be read to the jury at the outset of their selection to the jury pool, stating:

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse. . .

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

Despite being given such instructions, jurors are routinely using Facebook, twitter, and other internet services during the course of a trial. 

In a recent jury trial, I integrated a review of social network sites into the voire dire process.  Of the inital round of 24 potential jurors, about half had Facebook profiles and the majority of the Facebook profiles allowed some, or all, of their Facebook profile to be shared publicly.  At least two of the jurors had posted a status update about the case and one of the jurors actually posted racist comments about the Plaintiff.

With the increasing value of jurors' social media postings to the voire dire process, the Committee on Professional Ethics, for the New York County Lawyers' Association, has written an opinion on the propriety of this social media surveillance.  The NYCLA determined that, under the NY ethics rules, it was permissible for an attorney to conduct social media surveillance during voire dire and over the course of the trial. However, the NYCLA opinion warned that it was improper for an attorney to "'friend,' email, send tweets to jurors or otherwise communicate in any way with the juror, or act in any way by which the juror becomes aware of the monitoring."  

Based on the NYCLA opinion, an attorney can monitor any publicly available information a juror is providing, but cannot friend or otherwise obtain access to any private information of the juror.  Interestingly, the NYCLA opinion concludes that an attorney cannot subscribe to a juror's twitter feed, reasoning that the mere act of subscribing would constitute unethical juror communication. 

Posted by Astrid Guardado on June 21, 2011

Saudi Women Take the Wheel

saudi_woman.jpgAlthough there are many days that I dread getting behind the wheel of my car, I appreciate the right to drive.  Admittedly, I am not a good driver, even though I have been licensed for almost thirty years.  Nonetheless, I enjoy the privilege and freedom of being able to drive anywhere in the world.  Anywhere that is, except in Saudi Arabia.  You see, I am woman.  And, that fact alone precludes me from getting behind the wheel in the ultraconservative monarchy.      

Though there is no law that makes it illegal for women to drive in Saudi Arabia, Islamic edicts have been interpreted as an outright ban on female drivers.  On Friday, that ban was challenged by dozens of defiant Saudi women.  It was an unusual, grass’ roots protest, fueled by the “Women2Drive” campaign and further ignited by Twitter and Facebook.    

The rally was not meant to be a mass driving effort by Saudi women.  Instead, women, who hold valid licenses from other countries, were encouraged to run routine household errands in order to highlight the fact that driving is a normal undertaking that should be enjoyed by both sexes. The number of Saudi women who participated in the protest against driving was small and few incidents of confrontations with the authorities were reported.   

But, the show of defiance is a small step towards equal rights for women in a nation where women have little political voice.  Kudos to social media for providing Saudi women with a platform to effectuate change!  Hmm, I just may open a Twitter account, after-all.