You see, in certain instances, a trial witness's social media breadcrumbs may undermine her credibility and score points for your client. But when the witness -- and the lawyer trying to impeach the witness with her social networking activities -- display as much combined tech savvy as J-Lo's PR machine, hilarity trouble may ensue:
Got a jury trial coming up? Concerned about jurors using social media to discuss the case or conduct independent research during trial? As you may recall from this blog post, if you are counting on the court to independently instruct jurors not to get their Twitter on, well, don't hold your breath.
Instead, consider including this new two-page model jury instruction addressing juror use of social media during trial. You'll note that jurors are instructed twice about social-media use. According to this official press release, the new rules emphasize that a single instruction to refrain from using social media to discuss/research the trial is not enough:
The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines.
One additional suggestion: remember that technology is ever-changing. Today's Facebook may be tomorrow's TheEmployerHandbook.com.
The point here is that you shouldn't hesitate to tailor these model jury instructions to emphasize those sites and tools that your jurors are likely to utilize to make sure that they don't.
Last Friday, the Third Circuit released a definitive opinion regarding taxation of e-discovery costs against losing litigants...Judge Vanaskie (who I'll note is pretty hip to technology issues) largely vacated an order awarding $360,000 in e-discovery costs to the defendant, slashing it by more than 90%.
. . .
Although there may be strong policy reasons in general, or compelling equitable circumstances in a particular case, to award the full cost of electronic discovery to the prevailing party, the federal courts lack the authority to do so, either generally or in particular cases, under the cost statute.
Ultimately, in Race Tires Am., Inc. v. Hoosier Racing Tire Corp., a copy of which you can find here, the court concluded that converting and scanning electronic files were recoverable costs, while collecting and preserving electronically stored information (ESI), processing and indexing ESI, and keyword searching of ESI for responsive and privileged documents was not. Hasta la vista, baby.
A state court judge in Pennsylvania has come up with a new way to afford litigants access to social media as part of discovery in a pending civil action. Daniel Cummins at Tort Talk has the details:
The Judge's page long Order does not provide the background on the case leading up to this Motion and Order, or why such discovery was pursued by the Plaintiff.
While the Court did grant the Plaintiff access to the Defendant's Facebook page and ordered the Defendant not to delete any info from the Facebook profile, the Defendant was granted permission to change his login name and password after seven (7) days following his compliance with the Court's Order.
Anyone desiring a copy of this Order may click here.
Not only did the judge create a new way for party-access to social media accounts, but did you notice that a plaintiff received access to the defendant's social-media account. Not that this is entirely that surprising. Indeed, any information (paper, electronic, even social media) that is likely to lead to the discovery of admissible evidence in a civil action may be fair game during discovery for either side.
In the employment context, corporate-litigants should be mindful that if you press hard for a former employee's social media goodies during employment-related litigation, the plaintiff may just fire back with a few social-media requests.
But, in the courtroom, Facebook shenanigans may lead to hard time in the clink. This is especially true in the UK, where the BBC reports that a juror who contacted a defendant via Facebook, causing a £6m drug mistrial, has been jailed for eight months for contempt of court.
The juror allegedly wrote to the defendant, "cant get anywaone to go either no one budging pleeeeeese dont say anyhting cause jamie they could call mmiss trial and i will get 4cked to0".
Maybe, she can use her time away to work on her spelling and grammar for reflection.