Lawyers’ use of social media during trials
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Court rules juror’s Facebook posts not protected

Stacked3This week's Daily Record column is entitled "Court rules juror’s Facebook posts not protected."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Court rules juror’s Facebook posts not protected

Social media and jury trials don’t always play well together. The instant Internet access made possible by smart phones and the vast reach of social media have caused judges across the country much dismay when the trials over which they were presiding unraveled before their very eyes due to an off-the-cuff tweet or Facebook status posted by a clueless juror.

Judges have addressed jurors’ misconduct in any number of ways, including holding them in contempt and requiring the wayward jurors to pay fines, perform community service, or even spend a the night in jail.

However, an issue not addressed until a recent California decision, was whether a juror must cooperate in obtaining copies of alleged improper postings.

In Juror Number One v. Superior Court, 2012 WL 1950184, the California Court of Appeal, Third District, a juror was accused of engaging in misconduct by posting to a social network about jury duty during the pendency of the trial. The trial court conducted a hearing to determine the extent of the misconduct and then, upon completion of the hearing, a rather broad subpoena was issued by a real party in interest upon Facebook which sought: “‘[a]ll postings for [Juror Number One] dated 3/01/2010 to 10/06/2010.’ Attached was an order from respondent court compelling Facebook to ‘release any and all information, including postings and comments for Facebook member [Juror Number One].’”

Facebook moved to quash, asserting the protections of the Stored Communications Act (SCA) (18 U.S.C. § 2701 et seq.), but then suggested in its reply that the data sought could be obtained from the juror himself since he “owns and has access to his own Facebook account, and can disclose his Facebook postings without limitation.” In other words, Facebook passed the buck and threw its user under the bus.

The judge took Facebook’s suggestion and ordered the juror to execute a consent form pursuant to the SCA to allow Facebook to release all postings made by the juror during the trial for the court’s review. The juror then filed a petition for writ of prohibition with the Third District, seeking to bar the enforcement of the trial court’s order. The juror alleged violations of the SCA and his Fourth and Fifth Amendment rights, among others.

The court began by ruling out the applicability of the SCA to the juror’s situation. The court concluded that the protection of the SCA applied only to website owners: “(E)ven assuming Juror Number One’s Facebook postings are protected by the SCA, that protection applies only as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information. Here, the compulsion is on Juror Number One, not Facebook.”

The court also rejected the juror’s federal constitutional arguments on the grounds that the juror had failed to provide sufficient information to support those claims, holding, in part, that “the extent of Juror NumberOne’s ‘legitimate expectation of privacy’ under the Fourth Amendment would depend on the extent to which his wall postings are disseminated to others or are available to Facebook or others for targeted advertising. Where a point is raised in an appellate brief without argument or legal support, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’”

Finally, the court disposed of the juror’s claim that the trial court’s order violated his privacy rights pursuant to California’s Code of Civil Procedure sections 206 and 237 — statutes which protect jurors from the involuntary disclosure of personal identifying information. The court explained that the right to a fair trial outweighed any privacy interest in the Facebook data: “(E)ven if Juror Number One has a privacy interest in his Facebook posts, that interest is not absolute. It must be balanced against the rights of real parties in interest to a fair trial, which rights may be implicated by juror misconduct … The present matter no longer involves a claim of potential misconduct. Misconduct has been established without question. The only remaining issue is whether the misconduct was prejudicial. This cannot be determined without looking at the Facebook posts.”

Accordingly, the court held that, in the interests of a fair trial, the juror was required to consent to the disclosure of all Facebook postings made during the trial.

What I find to be the most interesting aspect of this case, legal issues aside, is the way that Facebook responded to the subpoena. Facebook wanted nothing to do with the situation and efficiently removed itself from the pesky proceeding by hanging its user, Juror Number One, out to dry. Of course, this is par for the course, since Facebook seemingly has little, if any concern, for the privacy of its users. So, I suppose the lesson to be learned for those of us who use social media is be careful what you put out there folks — and be careful where you do it. Caveat emptor.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.