Jury Instructions to Avoid a #Mistrial

Puerto Rico continues to be a very forward thinking Court when it comes to social media. Magistrate Judge Silvia Carreño-Coll issued the following Jury Instructions on Social Media usage in a product liability case:

JURY INSTRUCTION 30

NO SOCIAL MEDIA

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 service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, MySpace, 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.

Quilez-Velar v. Bodies, 2015 U.S. Dist. LEXIS 20817, 36 (D.P.R. Feb. 19, 2015).

Lord have mercy if a juror posts a selfie during jury deliberations to Instagram.

Judge Carreño-Coll’s “must not” list is extremely thorough on stating how jurors cannot communicate on social media, or any other communication, during their deliberations. While it is difficult to imagine a juror doing it, someone posting a vlog on YouTube about their jury deliberations during a trial is an excellent way for a Judge to say “hashtag mistrial.”

It is ok to “live Tweet” the Oscars, the State of the Union, or your favorite television show. Jurors live Tweeting a trial undermines the integrity of the judicial process. It is the duty of attorneys and Judges to ensure jurors understand their role during a trial and that posting to social media could have serious repercussions on the rights of the parties.

It is great to see the Federal Court in Puerto Rico including such comprehensive lists in their jury instructions. Keep up the good work.

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Still No Rummaging Through Social Media in Discovery

Courts will not ReTweet or “Like” discovery requests for social media that are simply fishing expeditions.

In Salvato v. Miley, the Plaintiff requested the following discovery:

Interrogatory 12

Please identify whether you had any social media accounts and/or profiles including, but not limited to, Facebook, Twitter, MySpace, you have had at any time from July 5, 2012-February 1, 2013. For each account, please provide the name and/or username associated with the profile and/or social media account, the type of social media account (e.g. — Facebook, Twitter, etc.), the email address associated with the social media account, the dates you’ve maintained the account, and/or whether the account is still active.

Request No. 3

Please produce a copy of any and all electronic communication either sent or received by you through social networking sites, including, but not limited to, Facebook, Twitter, and/or MySpace, between July 5, 2012 — February 1, 2013, that relate in any way to the incident that is described in the Second Amended Complaint. Please exclude any electronic communications that were sent and/or received exclusively between yourself and your attorney.

Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013)

The Court held the discovery requests were not reasonably calculated to lead to the discovery of admissible evidence. Salvato, at *6-7. The Court explained:

Here, Plaintiff simply contends that the requests are relevant because, “Plaintiff is seeking information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.” (Doc. 27 at 7). The mere hope that Brown’s private text-messages, e-mails, and electronic communication might include an admission against interest, without more, is not a sufficient reason to require Brown to provide Plaintiff open access to his private communications with third parties. Indeed, Plaintiff has “essentially sought permission to conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence.” Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D.Mich. Jan. 18, 2012)(quoting McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 1524, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010)). A party “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Id.

Salvato, at *6-7.

Bow Tie Thoughts

Requests for social media, text messages and other ESI must be narrowly tailored and not a rummaging expedition at a garage sale.

“Hoping” a text message or social media wall post exist does not make them a reality. With that said, it is a challenge to draft a more specific discovery request without knowing who the Defendant communicated with regarding the incident in the lawsuit.

Discussing possible custodians, whether they communicated by email, text, or social media, is an excellent meet and confer topic. Another good pointer is to narrow the time period, which the request at issue in this case did do.

If a requesting party is after specific social media communications, requesting messages or postings from specific dates, stated topics and between named individuals are factors to make a request narrowly tailored. For example, a party in an auto accident may take a photo of the car damage on Instagram (which would be odd, but possible). Instead of requesting all social media photos, requesting any photos taken the day of the incident would certainly be one way to acquire the discovery.

Denial of “Twitter Appeal”

The New York Court of Appeals denied Nonparty Twitter, Inc.’s appeal in People v Harris as “academic” and moot, because the Tweets in question had been produced pursuant to the State’s subpoenas. New York v. Harris, 2013 N.Y. Misc. LEXIS 2039 (N.Y. Misc. 2013).

The case involved the prosecution of an Occupy Wall Street protestor and the DA’s subpoena to obtain the Defendant’s Tweets.

The Tweets were relevant to an anticipated Defense argument that the police forced the protestors onto the non-pedestrian part of the Brooklyn Bridge, instead showing it was planned by the protestors. People v Harris, 36 Misc. 3d 868, 876 (N.Y. City Crim. Ct. 2012).

Twitter actually changed their Terms of Service after the first ruling in the case over whether the Defendant had standing to challenge the subpoena, based on who “owned” the user’s Tweets. People v Harris, at *872.

Judge Matthew Sciarrino’s order has wonderful statements on modern litigation involving social media. Here are selected of highlights from his June 30, 2012 order:

If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.  Those private dialogues would require a warrant based on probable cause in order to access the relevant information. 

People v Harris, 36 Misc. 3d 868, 874 (N.Y. City Crim. Ct. 2012).

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves (Stephanie Rabiner, Esq., Technologist, Do Judges Really Understand Social Media? http://blogs.findlaw.com/technologist/2012/05/do-judges-really-understand-social-media.html [May 9, 2012]). Judges must then do what they have always done – balance the arguments on the scales of justice. They must weigh the interests of society against the  inalienable rights of the individual who gave away some rights when entering into the social contract that created our government and the laws that we have agreed to follow. Therefore, while the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision. In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.

People v Harris, at *877-878.

As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

People v Harris, 878.

Bow Tie Thoughts

Just as a person’s eyes are a window to their soul, social media is a window into statements of future intent, state of mind and party admissions.

The evidence issues in social media can become complex, from “checking in” at location on a social media app being a present sense impression to layered hearsay with a video of a witness recorded on a smartphone at an incident, then shared by another declarant on their social media profile. Each declarant made an out-of-court statement that if offered in court would have to meet an exception to the hearsay rule (or somehow be non-hearsay).

The battle in most civil and criminal cases is not that social media is relevant, but what social media is relevant. A party cannot simply request a person’s entire social media profile. The entire profile is simply not likely to be relevant. It also smacks of an invasive fishing expedition. Moreover, who actually wants to read every status message from a person over a period of years?

The issue for many litigants is requesting specific postings over a set period of time, or a defined topic, or communications with others made over a posting. In effect, the requests must be narrowly tailored and relevant.

Tweeting Contempt: Trademark Infringement on Twitter

The Plaintiff, an established 15-year-old moving company, brought a lawsuit against the Defendant for trademark violations, libel, and other unfair competition causes of action.  Tdc Int’l Corp. v. Burnham, 2010 U.S. Dist. LEXIS 4646 ( E.D. Mich. Jan. 21, 2010).

A settlement agreement was entered (after a default) requiring the Defendant to cease using the Plaintiff’s mark, including one of the Defendant’s domain names and other restrictions.  Id.

The Defendant was also required to donate money to a junior sailing program.  The settlement was codified as a court order.  Id.

None of that happened according to the agreement and order.  The Plaintiff brought a motion enforce judgment and an order to show cause for contempt. 

The Court found that the “most troubling” evidence of the Defendant’s contempt was the Defendant’s EXACT usage of the Plaintiff’s trademark on Twitter.  Tdc Int’l Corp., at *7. 

The Court’s findings included evidence from the Twitter profile, with the Plaintiff’s mark, that listed the Defendant’s domain name. Tdc Int’l Corp., at *7-8. 

The Court additionally relied on evidence from the Defendant’s Yelp.com and Squidoo.com profiles in establishing the Defendant’s contemptuous conduct.  Tdc Int’l Corp., at *7.

The evidence of contempt even included online testimonials on the Defendant’s services, including one posting made the day before the Plaintiff filed their motion.  Tdc Int’l Corp., at *8.

The Court ReTweeted the Plaintiff’s view of contempt and ordered the Defendant to appear in person to explain why he should not be held in contempt for violating the Settlement Agreement and Consent Judgment.  Tdc Int’l Corp., at *9. 

Bow Tie Thoughts

This case highlights the ease with which someone can engage in Trademark infringement on Twitter.  More importantly, it illustrates how savvy Courts are becoming with social media litigation.

Extra! Extra! No Tweeting in Court!

In United States v. Shelnutt, a member of the press requested the right to “Tweet” a criminal trial on Twitter.  The court denied the request pursuant to Federal Rule of Criminal Procedure Rule 53. United States v. Shelnutt, 2009 U.S. Dist. LEXIS 101427 (M.D. Ga. Nov. 2, 2009). 

Federal Rule of Criminal Procedure Rule 53 states, in relevant part:

“[T]he court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Shelnutt, at *2, citing Fed. R. Crim. P. 53

The Court held that the term “broadcasting” includes sending electronic messages contemporaneously from the trial, which the Court held includes Twitter.  Shelnutt, at *2-3.

First Amendment Concerns

The Court held the First Amendment was not violated by the prohibition of Twitter in the courtroom. 

The Court stated that Federal Rule of Criminal Procedure Rule 53 is well established as Constitutional.  Shelnutt, at *4.  Additionally, the Press has the right to attend the trial, listen to the evidence, evaluate the arguments and report on the proceedings.  As such, there is no restriction on the right to report on the criminal trial.  Shelnutt, at *4-5.  In short, these sound like “time, place and manner” restrictions on where the broadcasting of a trial can occur. 

Bow Tie Thoughts

This is a new spin on cameras in the courtroom.  Just as a judge would prohibit reporters setting up a broadcast booth in her courtroom (and thus creating a media circus where lawyers put on silly hats and do bad rhymes during closing argument), it is understandable why a judge would not want a “Tweetup” taking place during a trial.

An Interesting Order…No Twitter in Court

Cameras in Courtrooms have been the cannon fodder for courtroom sketches for years.  A recent court order for a trial in Florida highlights how judges are keenly aware of technology and reporters.

 A temporary press room was set up for reporters covering a criminal trial.  The reporters would be allowed to bring their “cellular phones, Blackberries, iPhones, Palm Pilots, and other similar electronic devices, as long as they agree in writing to not email, text message, twitter, type or otherwise use those devices inside any courtrooms within this District.” United States v. UBS AG, 2009 U.S. Dist. LEXIS 67270, 3-4 (S.D. Fla. July 9, 2009), (emphases added).

The short and simple message of this order is very clear: Judges are savvy to technology, Web 2.0 journalism and are including these portable ESI generating machines into their orders for the press.  I also would bet good money judges are including similar instructions to jurors.

Juror Misconduct: When the Judge Says Don’t Talk About the Case, that Includes Facebook & Twitter

Who knew 140 characters, a few status messages, and tags could play a big role in a court opinion hitting juror misconduct? 

It is not a huge surprise in a criminal case involving politics, money and fraud. 

A Little Background: The Criminal Case against the Defendants

Multiple Defendants were charged with 141 counts of the following:

(1) Fraud and conspiracy to defraud the Pennsylvania Senate;

(2) Fraud and conspiracy to defraud Citizens Alliance for Better Neighborhoods (“Citizens Alliance”);

(3) Conspiracy to defraud the United States Internal Revenue Service (“IRS”);

(4) Fraud related to the Independence Seaport Museum (“ISM”); and

(5) Obstruction of justice and conspiracy to obstruct justice. United States v. Fumo, 2009 U.S. Dist. LEXIS 51581 (E.D. Pa. June 17, 2009)

To keep things interesting, one Defendant was a Pennsylvania State Senator.

The “Honorable” Senator was found guilty of 137 of the 139 charges against him.

Don’t Tweet the Trial

The Defendants claimed they were entitled to a new trial because one juror had Facebook status messages and Twitter “Tweets” during the trial.  Fumo, 184-185. 

Here is the short version of what happened:

One of the jurors worked in the HR department of a law firm.  Fumo,192. He also was a user of Facebook, Twitter and had a personal blog. 

Like many Web 2.0 savvy users, he would post status messages and “Tweets” about his day. These included messages about the trial, provided you knew what the juror was talking about, since he did not disclose any facts. 

Jury deliberations were under full steam…and a TV story ran on the trial on March 15, 2009.  Fumo,183-184.

The Defendants learned from the news report that one juror made online postings about the trial.  The Juror also saw the headline for the report and quickly deleted his Facebook and Twitter postings out of fear.  Fumo,183-184. 

The Defendants in turn immediately filed a motion alerting the Court to disqualify the juror.  Fumo,184. 

Just What Did the Juror Say?

Twitter Postings

The juror’s one Twitter posting was simply: “This is it … no looking back now!” Fumo, 193-194. 

Facebook Postings

Below is the Court’s summary of the Facebook Status Messages:

Sept. 18, 2008 (apparently upon continuance of trial judge due to judge’s illness): “… is glad he got a 5 week reprieve, but could use the money …”

Jan. 11, 2009 (apparently referring to the end of the government’s case): “… is wondering if this could be the week to end Part 1?”

Jan. 21, 2009: “…wonders if today will really be the end of Part 1???”

Mar. 4, 2009 (conclusion of closing arguments): “…can’t believe tomorrow may actually be the end!!!!”

Mar. 8, 2009 (Sunday evening before second day of deliberations): “…is not sure about tomorrow …”

Mar. 9, 2009 (end of second day of deliberations): “…says today was much better than expected and tomorrow looks promising too!”

Mar. 13, 2009 (Friday after completion of week of deliberations): “Stay tuned for the big announcement on Monday everyone”

 Fumo, 194-196.

No RT’s from the Defendants

Defense Counsel wanted the juror “removed” from the trial, to borrow Twitter language.  They claimed the juror’s “behavior and his ‘utterly incredible testimony’ undermined his impartiality as juror.” Fumo,186-187.

The Court Tagging the Juror’s Comments

The Court held an in camera review one day after the news report.  Fumo,185. 

The Court was extremely supportive of the juror’s integrity and stated the following:

I just – – honestly, want to make sure my thoughts are on the record about this guy. My take on him is entirely different. My take on him is this is one conscientious guy trying very much to comply with all the rules and regulations that I’ve established more so then I would ever imagine that a juror would do. And I think that, you know, I’ve heard him and I don’t have any trouble with keeping him on the jury. Fumo, 185-186

The Court & Web 2.0

To the Court’s credit, the Judge included the “About” pages for both Facebook and Twitter.  Footnote 27 nicely summarizes Facebook’s Mission Statement “to give people the power to share and make the world more open and connected.”  Fumo, 184, fn 27. Additionally, the Court summarized Twitter as “a real-time short messaging service that works over multiple networks and devices.”  Fumo, 185, fn 27.

The Court’s RT on “This is it … no looking back now!”

The Court found that the juror’s ONE Tweet suggested “the jury’s decision had been made and that it was too late to influence him.”  Fumo, 194.  Moreover, the message was “so vague as to be unclear.” Fumo, 194.

The Tweet had no details on the case facts or showed any favor/disfavor to anyone in the criminal trial.  Fumo, 194.

Facebook Settings & Status Messages

The Court’s analysis of the Facebook Status Messages included reviewing the juror’s privacy settings.  The juror belonged to the 600,000 member Philadelphia network.  Anyone in this network could view his status messages.  Fumo, 195. 

The juror’s profile was configured so only “friends” could post comments on his profile.  “Friends” could either post messages on the juror’s “Wall” or send a Facebook Message.  Fumo, 195-196. 

Defense Counsel questioned the juror on for whose benefit he was writing his status messages.  The juror explained that his postings were:

“…more for my benefit to just get it out of my head, similar to a blog posting or somebody journaling something. It’s just to get it out there. And that’s what a lot of Facebook … it’s just to get — a way to electronically gets thoughts off your mind.”  Fumo, 196.

The Juror was questioned on whether any “non-friends” ever contacted him or did anything to influence his thinking on the case.  The juror answered:

“No. Because – – again, because they have to be someone that I befriended in order to be able to post on the wall. Whether or not they can see it, I’m not sure. But I know they can’t post on it without being one of my friends.” Fumo, 198-199.

The questioning of the juror was very extensive.  Mark Zuckerberg, founder of Facebook, would have been very proud of the juror’s explanation of Facebook’s appeal during the Defense questioning.  The juror described that “some people use [Facebook] for connection between other people. I use it, personally, as a way to journal my thoughts and get everything out.” Fumo, 199-200.

The Court’s Findings

The Court found no evidence that the juror was influenced by his Facebook postings.  There was no evidence “random individuals” contacting him.  Moreover, there was no evidence the juror’s “opaque” postings were detailed enough for members of the Philadelphia network to know what the juror was talking about. Fumo, 201.

Bow Tie Thoughts

Given the number of iPhone, BlackBerry and other smart phone users who can be in a potential jury, lawyers and judges should include “No Twitter, Facebook or social networking” in the jury instructions.