Category Archives: Discovery

It took jurors about 50 minutes to convict Kendrick Morris of rape. The short length of the deliberations prompted some to speculate that the jurors may have been influenced by outside information. Several of the jurors defended the decision publicly, including jury forewoman Robin Richter, who wrote a letter to a local newspaper.  The paper published the letter on its website.

An anonymous person, claiming to be one of the jurors, posted a comment on tampabay.com, implying that Richter had outside information when the jury reached its verdict:

I truly believe that there were more than one person knowing outside information. I believe he is guilty as well but really really believe some people were not telling the truth under oath. I won’t mention any names …foreman!!!

Morris’ lawyers have petitioned the court to speak with the jury they believe wrote the comment.  They claim that Richter updated her Facebook status several times during the trial, discussing the case and that one of her friends may have provided information about the case.  They seek to have her Facebook records subpoenaed.

This story raises several of the increasingly common issues facing courts today.  First, there’s the issue of the anonymous poster.  Anonymous comments about trials and other court proceedings are problematic.  Just ask Ohio judge, Shirley Strickland, who is alleged to have posted comments under a pseudonym about cases before her.  Strickland was removed by the state’s supreme court from a high-profile murder case on which she had allegedly commented.

Second, there’s the problem of jurors who comment about their case while the trial is ongoing. If the comments are specific about the case and offer enough details, a mistrial can result or the juror can be sanctioned.  Other times, the juror’s comments are generic enough not to trigger alarm by the court, although the losing party is likely to cry foul.  Even lawyers have made the mistake of discussing an ongoing case online. 

Third, there’s the issue of the discoverability of social-networking sites.  There have been several decisions in the past year addressing whether an individual’s Facebook posts and messages can be lawfully subpoenaed from the social-networking site and, if so, under what conditions and with what limitations.

[Source:  Tampa Bay Online via MSNBC.com]

Social media presents a variety of issues for lawyers and legal professionals.  I’ve been covering the increasing number of courts that are adopting revised jury instructions that specifically address jurors’ use of social media during a trial.  (See Social Media Research Repository, which includes links to more than 20 social-media-specific jury instructions from state and federal courts across the country).   In another example, in State v. Dellinger, the West Virginia Supreme Court overturned a criminal conviction where a juror failed to disclose that she was “MySpace friends” with the defendant. 

But jurors aren’t the only ones that social media is affecting in legal disputes. There’s also the use of social media as evidence and, even before it becomes “evidence” in the courtroom sense, during discovery.  There have been a number of cases addressing discovery disputes over social media, none of which fall outside of what I think will become the norm.  Here are a few recent decisions that give us an idea of the scope of the social-media-as-evidence issue. 

Discovery of Employment-Discrimination Plaintiff’s Facebook Page Granted

Jon Hyman, of the Ohio Employer’s Law Blog, recently wrote about a federal court’s decision to permit discovery of a plaintiff’s social-networking content.  The case, EEOC v. Simply Storage Management (S.D. Ind. May 11, 2010), is representative of the trend I’ve seen on this issue.  In short, the case involved allegations of sexual harassment made by two plaintiff-employees.  The plaintiffs sought damages for depression, stress, and various other problems stemming from the alleged harassment.  The defendant-employer sought extensive discovery of the plaintiff’s Facebook and MySpace pages. 

Not surprisingly, the EEOC objected to the discovery requests, arguing that they were overly broad and invasive.  The court ordered the plaintiffs to produce the requested information, finding that, where the plaintiffs have put their emotional well-being at issue, discovery of evidence likely relevant to their mental state was, indeed, relevant to the dispute.

Judge Devises Creative Solution to Discovery Dispute Over Plaintiff’s Facebook Page

The Technology and Marketing Law Blog reports on a federal-court case in Tennessee earlier this month, where the Magistrate Judge came up with a very creative way to resolve a discovery dispute over social-media evidence.  The defendant sought discovery of the plaintiff’s and witnesses’ Facebook information, to which, of course, the plaintiff objected.   The case, Barnes v. CUS Nashville, LLC (M.D. Tenn. June 3, 2010), alleges personal injuries sustained when dancing on the bar at the Coyote Ugly saloon (yes, that’s the one).  The defendant subpoenaed the plaintiff’s Facebook information, seeking photographs of plaintiff and her friends dancing on the bar.  The subpoena issued to Facebook was quashed but the defendant persisted. 

Perhaps because of the complexity of the issue (especially in light of the potential damages), the Magistrate Judge who reviewed the dispute, came up with a creative solution.  He offered to create his own Facebook account “for the sole purpose of reviewing photographs and related comments in camera.” 

Court Finds That Facebook Messages and Wall Postings Are Protected By the SCA

The original subpoena, which was issued by the Barnes defendant to Facebook, was quashed by the court at Facebook’s request.  The magistrate concluded that the disclosure of the plaintiff’s Facebook pages as requested in the subpoena would violate the Stored Communications Act (“SCA”).  Another federal court reached the same conclusion last month in Crispin v. Christian Audigier, Inc. (C.D. Cal. May 26, 2010).   In that case, the district court held that private messages sent via Facebook and MySpace constituted communications protected by the SCA.  Wall postings and comments were also protected, the court held, provided that the user had proper privacy settings in place. 

These issues are sure to continue to come up and the law will continue to develop.  In the meantime, though, lawyers and litigants should remember that, “what you say, can and will be used against you in a court of law.”  And so will what you post on Facebook.

See also these related posts:

11th Cir. Finds That the Admission of MySpace Evidence Was Harmless Error

W. Va. Supreme Court Orders New Trial Where Juror Failed to Disclose She Was MySpace Friends With Defendant