Tech Savvy Judges and the Challenge of Jurors Conducting Online Research

Why would a juror’s online research be a “problem” for a criminal defendant?

Because an “extrinsic influence on a jury’s deliberations violates a defendant’s Sixth Amendment rights to an impartial jury, to confront witnesses against him, and to be present at all critical stages of his trial.” United States v. Dyal, 2010 U.S. Dist. LEXIS 72489, at *38 (D.S.C. July 19, 2010).

One tech savvy judge tried to head off any Constitutional challenges that may befall modern jurors who are packing SmartPhones and a high speed Internet connection. 

The Judge instructed the jury, both orally and in writing, the following: 

I remind you that during your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet device, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Dval, at *8-9. 

Despite these instructions, one curious juror did a Google search and looked up two words on Wikipedia and the Free Miriam Webster Dictionary.  Dval, at * 30-31.  When the Googling Juror brought this to the attention of the Jury Foreman, he was told Wikipeda is not reliable. Dval, at *52.  Moreover, when the Googling Juror tried sharing this information with others, he was cut off from discussing it.  Dval, at * 52-53. 

The Court held a hearing after the online research was brought to light to see if the jury had been tainted in its decision.   

After questioning of each juror, the Court found that the online research was juror misconduct, because the information was an improper external influence.  However, this was not prejudicial per se.  Dval, at * 55.  

The Court found that there was “no reasonable possibility that the external influence caused actual prejudice.”  Dval, at * 55.  This was based on the extensive questioning of all the jurors, which showed the Googling Juror had little to no influence on anyone and secondly, the terms he found were consistent with the jury’s own understanding of the terms.

Bow Tie Thoughts

It is very refreshing to see a judge try to head off problems in an age where people can whip out a SmartPhone and conduct an internet search for an instant answer. 

Judge Cameron McGowan Currie’s went out of his way to remind the jurors what not to do during deliberations, specifying naming some of the most commonly used social networking sites.  The jurors to their credit also were quick to avoid inappropriate conduct.

This will not be the last time a Court will need to do this sort of review, but it is a great roadmap on what to do when there is a juror conducting online research.

Fishing Expeditions in Cell Phone & Hard Drive Collection

In a wrongful death case, the Plaintiffs sought “any and all” computer hard drives and cell phones from the Defendant within 24 hours of the incident in the lawsuit to the “present.”  Holland v. Barfield, 35 So. 3d 953 (Fla. Dist. Ct. App. 5th Dist. 2010).

A Grand Fishing Expedition

The Defendant objected to this quintessential fishing expedition with one of the most powerful objections on the planet: the state constitutional right to privacy. 

The Plaintiffs brought a motion to compel the production of the Defendant’s hard drive and cell phone to show all communications made by text messages and on social networking sites. Holland, at *2.   

The trial court GRANTED the motion to compel.  Holland, at *2-3. 

The Plaintiff did agree after the court order to have a protective order and confidentiality agreement.  Holland, at *3. 

Nowhere was the Defendant allowed to review the data before it was produced to the Plaintiff.  Holland, at *3. 

Your Life in the Data Stream

The Defendant argued on appeal that the Plaintiffs could review every byte of the Defendant’s data in violation of her privacy rights, plus the attorney-client privilege and work product doctrine.  Holland, at *3. 

Adding to the data privacy nightmare, the Plaintiffs’ expert could review all the data outside of the presence of Defense counsel.  Holland, at *4. 

Email messages. Credit card numbers. Bank statements.  Personal photos.  Medical information. 

All available for the opposing party to review.  

Such a practice would amount to a court ordered vivisection of a party’s privacy rights.

Finally, the Defendant argued the order would be unduly burdensome because it would deprive the Defendant (a college student) of her only phone and computer for an unknown amount of time, impacting her studies.  Holland, at *4.

The Plaintiff countered that because the Defendant “thwarted” discovery by not producing anything, they had the right to access the computer without the Defendant reviewing any data before production.  Holland, at *4.

Setting the Fishing Limit

Florida law allows for the direct examination of computers under specific circumstances and procedures, because an opposing party’s “…unlimited access to anything on the computer would constitute irreparable harm, because it would expose confidential, privileged information to the opposing party.” Holland, at *6.

A requesting party must prove the following to gain access to an opponent’s computer: 

(1) Evidence of any destruction of evidence or thwarting of discovery;

(2) A likelihood the information exists on the devices; and

(3) No less intrusive means exists of obtaining the information.

Holland, at *6.

The Court held there was no evidence that discovery thwarted or evidence was destroyed  .  Holland, at *7.  Moreover, the discovery requests were not for specific data on the computer or phone, but the devices themselves.  Holland, at *7. 

The Plaintiffs sought the computer and cell phone SIM card as a “back-up” to the information requested in discovery.  Holland, at *7.  This showed a less intrusive means had already been agreed to and compromised by the parties in accessing the information.  Id. 

The Court of Appeals found that the trial court order compelling the examination of the Defendant’s hard drive and cell phone SIM card caused irreparable harm, because it failed to protect against the disclosure of confidential or privileged information.  Holland, at *8-9.  As such, the order was quashed.

As the Court of Appeals explained, in part:

The unlimited breadth of the trial court’s order allows Respondent to review, without limit or time frame, all of the information on Petitioner’s computer and mobile phone SIM card without regard to her constitutional right of privacy and the right against self-incrimination or privileges, including attorney-client, work product. 

Holland, at *7-8.

Bow Tie Thoughts

The Courts are the guardians against a party’s personal data being forensically collected and reviewed in total disregard of privacy interests.  In this case, the Court of Appeals ended fishing season on a matter of principle, after the parties had compromised on the discovery of the relevant electronically stored information. 

The general practice when a  personal computer needs to be forensically imaged, it is done by a neutral third-party, not the moving party’s expert.  Moreover, the producing party has an opportunity to review the information for privilege, so only what is responsive and non-privileged is produced.

For more on cases involving the imaging of hard drives, please check out Compelling Production of Hard Drives & Metadata to Show Time Worked, The Express Way to Your Hard Drive and How to Get a Judge to Overcome the Guilt of Ordering the Forensic Examination of a Personal Computer

A Search Term Turkey

In a Fair Labor Standards Case against Butterball, the Plaintiffs claimed the Defendants’ ESI production was incomplete.  The Defendants in turn claimed that the “burden” of producing the discovery was burdensome, justifying cost shifting.  Helmert, et al., v. Butterball, LLC, 2010 U.S. Dist. Lexis 60777 (May 27, 2010). 

While that sounds like a standard e-Discovery dispute, something was not right in the kitchen.  

Searching for the Right Recipe  

Search terms were an “iron chef-esq” battle in the case. 

The Defendants ran search terms over active and archived email databases of twenty-two custodians.  Helmert, at *4.  

The Plaintiffs sought to compel the Defendants to run an additional 70 search terms over forty-three custodians.  Helmert, at *9.  

The two sides debated and narrowed search terms across a significant portion of the opinion, with the number of custodians and search terms fluctuating.  

One element of the search term dispute was searching “Donning and Duffing” cases against one of the Defendants and its subsidiaries. Helmert, at *11.    

A Bad Taste in Your Mouth  

The Defendants made an argument that tasted like a turkey brine of tuna and sulfur in soda water: It was “impossible” to search email messages for more than one word in a sentence.  Helmert, at *13.  

The Court did find the Defendants needed to produce additional discovery, but added a big caveat: 

The Court does agree that, to the extent that it is impossible to conduct an electronic search of emails for one term within the same sentence as another term, requiring Butterball to do so would be unduly burdensome. The plaintiffs offer no evidence that Butterball can, in fact, perform such a search electronically. Nor do they offer any alternative method for conducting such a search. 

Helmert, at *14-15. 

The Plaintiffs did argue the Defendant could search for the first term and then run a second search as a “work around” to this technically “impossibility.”

A Burnt Turkey

The “impossibility” in this case was attempting to search active and archived email, not necessarily preserved ESI.

This raises the issue, just what sort of litigation hold had been enacted?  Was the data at all collected or were the Defendants searching over live and archived data the entire time?

If the data had been collected and preserved with any of several different collection tools, the “impossibility” would have faded away, instead of lingering like a burnt turkey.

One example of how this search could have been performed would have been by performing a Proximity Search with EnCase e-Discovery, which allows for a keyword search within a user defined proximity of other keywords. 

As explained by Alexis Robbins of Guidance Software, here is how the search would have been possible: 

EnCase® eDiscovery supports the ability to search multiple keywords within a sentence via its proximity search function. Proximity search allows for keyword search within a specified number (user defined) of keywords of another keyword. For example, with EnCase eDiscovery a user could enter a whole word search expression “Stock Option” and identify all instances of the words Stock and Option within a proximity (2) of each other. Proximity support is not with EnCase® Portable, at this time, which does straight keyword searching.

EnCase eDiscovery searching of “Stock” within two words of “Option”

Bow Tie Thoughts

Lawyers who are new to electronic discovery may assume things are “impossible.”  Moreover, some attorneys argue “undue burden” without consulting with a third-party expert based on the assumption e-Discovery is inherently cost prohibitive. 

Consulting with a third-party expert, or even performing a Google search, may prove the “impossible” is actually a common practice in many situations.

This case likely would have saved time and money if the parties could have agreed on the key custodians, had a third-party preserve the data and then had an index which could be searched based on agreed upon keywords within the same sentence.  This could likely would have cost less than the protracted litigation, meet and confer conferences and a motion to compel battle. 

Hold Fast: First D4 and Legal Hold Pro CLE in California

D4 LLC and Legal Hold Pro produced the first in a seminar series on litigation holds in Silicon Valley on July 15, 2010 entitled “Hold Fast.” 

“Hold Fast” is a nautical term meaning to secure something quickly. 

The term aptly applies to being able to enact a litigation hold to avoid the destruction of electronically stored information.

The seminar focused on the most recent decisions on litigation holds, paying special attention to the Pension Committee decision.   The material included best practices for issuing litigation holds, a discussion of the duty to preserve and analysis of one of the first California litigation hold cases.

One attendee described the seminar as “…one of the most informative and useful CLE’s that I have ever attended.” 

The program was a great success and we appreciated everyone who attended the first “Hold Fast” seminar.  

If you are interested in attending a “Hold Fast” seminar, please visit www.d4discovery.com for more information.

In Requiem for Howard Krosney

I am crushed beyond words to hear that Howard Krosney of Epstein Becker & Green passed away after a sudden illness. 

Howard was a gentleman.  I first met him during my time at CT Summation.  Howard attended several of my seminars and we became friends.  He once came down from Newark to an all day seminar we held in DC. 

We once went to dinner after a seminar where Howard entertained all of us with stories of Woodstock and his very unique life adventures.  When I put together a mock trial in New York, Howard dutifully recruited one of his lawyers to help with the seminar. 

When the economy fell into recession in 2008 and I was laid off, Howard asked for my resume trying to find work for me. I thanked Howard when we saw each other a month later.  He told me that all we have in life is each other. 

Howard was a frequent participant in my monthly calls on e-Discovery.  Howard’s insights on everything from the form of production, to review platforms to contract attorneys were greatly valued.  When Howard spoke, people listened. 

I had the honor of going to dinner with Howard this pass Legal Tech New York.  We discussed very little e-Discovery and focused on all the things that make life worthwhile. 

After my 100^th Bow Tie Law posting, Howard sent me the following message: 

            Congratulations.  Your blog has become essential reading.

Howard, you were a class act.  You cared about people, showed kindness and represented the best of us.  You will be missed.  My thoughts go out to your family and friends.