Category Archives: Social Media Investigations

SEARCH REVEALS HUNDREDS OF IMPROPER JUROR SOCIAL MEDIA POSTS PER DAY (PART 2)

In response to our post two weeks ago identifying widespread social media abuse by jurors that could quite possibly lead to mistrials, a frightened prosecutor and others have inquired about how exactly juror’s social media data should be collected and what the various techniques are. So this follow-up post discusses the mechanics of proactively monitoring jurors that are both empaneled and potential members of your pool.

First and foremost, it is important to understand what not to do. Do not fire up Twitter.com and start following jurors. They will receive a notice that they’re being followed, which is improper under various legal ethics rules. Also, it is not effective technically, as you cannot access or search past tweets very effectively (which are often just as important as ones in real time), and it is very difficult to monitor up to several dozen jurors in your pool.

The right software will allow you to employ several techniques and methods, which are most effective when used in conjunction to comprehensively and ethically search for all publicly available juror social media.

The first method is to set a geo-fence around the courthouse and immediate area. This will collect tweets and Instagram posts in real time, as well as going back several days if needed, to collect any tweet that is geo-located in that area. Here is an example of such an effort:geo fence

Another advantage of this method is that it will capture any geo-located social media posts by not only jurors at the courthouse but also by opposing counsel or witnesses, which happens more often than you would think. Expert witnesses in particular can be prolific on social media as they promote their services and their personal brand. They also often Tweet and share approvingly links to industry articles and blog articles, which can then be considered to be part of their opinion record.

The second method is to set keywords such as #juryduty or “jury duty” across the public feed of social media sites. This will cast a wider net, returning posts from all over the country if not the world. But with the right tools you can quickly be able to filter out the ones that are within your geographical location. This will also capture posts that are not Geotagged by the user.  If your case has any media attention, even just locally or within industry media verticals, it is a very good idea to set up keywords that can identify any mention of your case in public feeds.

And just for fun, here are the top 5 controversial juror posts from just the past few days:

bad tweets

And finally, once you have identified an impaneled juror or a member of the potential pool, and have their social media profile names,  you can quickly and anonymously collect all their past and ongoing public social media content through special software such as X1 Social Discovery. This also has the advantage of instantaneous and unified search across all available social media streams from multiple jurors. You also can set up email alerts so that if a juror or other person of interest posts anything, you will immediately be alerted to that post. This is also an effective technique when following opposing counsel or key witnesses. And it’s often a good idea to your monitor your own clients as well.

For more information about how to conduct effective social medial investigations, please contact us, or request a free demo version of X1 Social Discovery.

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Filed under Best Practices, Case Study, Legal Ethics & Social Media, Social Media Investigations, Uncategorized

Search Reveals Hundreds of Improper Juror Social Media Posts Per Day

The Federal Judicial Center (“FJC”) recently published a report surveying 952 federal district court judges to identify the scope of jurors’ improper use of social media during trial and how the courts are addressing the problem. The FJC’s report, Jurors’ Use of Media During Trials and Deliberations, reflects that despite various prevention efforts, jurors continue to use Facebook, Twitter, Google and other sites in several, and that the courts continue to struggle to detect such usage. According to the survey results, 30 judges identified incidents of improper juror social media usage,

Such misconduct can easily result in a mistrial or even reversal of judgement. In State v. Smith, Sept. 10, 2013, the Tennessee Supreme court vacated a first degree murder conviction on the sole grounds that one of the jurors communicated with a prosecution witness during trial via Facebook. The court lamented that Internet and social media “has exponentially increased the risk….of extra-judicial communications between jurors and third parties.” This decision is but one example of this common occurrence of juror misconduct through social media use, requiring attorneys and jury consultants to engage in on-going passive monitoring of publicly available social media information.

In fact we recently did our own search of the Twittersphere with X1 Social Discovery, and uncovered several hundred improper Juror tweets in a single day (1/13/2016). Here is a small sampling:

juror tweets

 

 

 

 

 

 

 

 

 

 

 

 

 

(click to enlarge)

It is thus no surprise lawyers are increasingly using Twitter to investigate and monitor potential and impaneled jurors. However, this type of monitoring activity can lead to serious attorney ethics violations if direct or even indirect communications are sent to the juror as a result of such monitoring activities. (See e.g. New York County Law Association Formal Opinion No. 743, May 18, 2011). Proxies hired by attorneys, including eDiscovery service providers, investigators and jury consultants are subject to these restrictions, which can also apply to social media communications with witnesses or opposing parties who are represented by counsel.

For this reason, X1 Social Discovery features a specialized “public follow” feature that enables access to all the past Tweets of a specified user (up to 3200 past tweets) and any new Tweets in real-time without generating a formal “follow” request with the resulting problematic communication.. These legal ethics rules concerning indirect social media communications underscores the importance of employing best practices technology to search and collect social media evidence for investigative and eDiscovery purposes.

Collecting evidence in a manner that prevents, or at minimum, does not require that attorneys and their proxies directly or indirectly communicate with the subjects from whom they are collecting social media evidence is a core requirement for solutions that truly address investigative and eDiscovery requirements for social media. In addition to preserving and authenticating social media evidence in a proper manner, X1 Social Discovery provides fast and comprehensive searching of the data in a manner unmatched by any other technology.

It can even potentially prevent a possible mistrial through early detection of a juror’s improper Tweets or Facebook postings.

UPDATED:  Attorney Ignatius Grande, co-chair of the New York State Bar Committee on Social Media, contacted me in response to this post, to point to the Committee’s recently published Social Media Jury Instruction Report. The report describes the scope and challenges from juror social media use during voir dire and trial, as well as proposed amendments to standard jury instructions address such juror misconduct.

 

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January 27, 2016 · 6:12 PM

New FRCP Rule 37(e) Calls Out Importance of Social Media Evidence

By John Patzakis

A new version of Federal Rule of Civil Procedure 37(e) FRCP bookgoes into effect December 1, 2015, barring an unexpected act of Congress to amend or rescind the changes. Proposed rule 37(e), features a new title: “Failure to Preserve Electronically Stored Information,” and replaces the current subpart in its entirety, providing a uniform standard to resolve a split in case law among different Judicial circuits concerning serious ESI spoliation sanctions. Rule 37(e) will be the only Federal civil rule section addressing the duty to preserve ESI and thus serves as key guidance governing eDiscovery collection and preservation efforts.

Proposed Rule 37(e) is accompanied by official Committee Advisory notes. Judges and counsel refer to these Advisory notes to provide guidance and insight concerning the intent of the laws and how they should be applied. The Advisory notes are published alongside the statute and are in fact widely seen as an extension of the FRCP. The Advisory notes for new proposed Rule 37(e) include the following key section:

Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms. It is important that counsel become familiar with their clients’ information systems and digital data — including social media — to address these issues (emphasis added).

This reference to social media is particularly notable as it is included in very important guidance concerning overall ESI preservation requirements.  The implication of the new law is clear:  social evidence is given at least equal weight and import as other forms of ESI such as email and documents. As an aside, the Advisory notes to the 2006 Federal Rules Amendments, specifically for Rule 37(f)  state: “When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a ‘litigation hold.’”

Due in large part as a result of this mention, legal holds quickly became a core eDiscovery requirement, with an entire sub-industry spawned.  So there is no question that the Advisory notes are highly influential.

It is notable that social media evidence is already a core component of eDiscovery evidence collection efforts by most lawyers and practitioners.  Recently, the global law firm Gibson Dunn released their influential 2015 Mid-Year eDiscovery and Information Law Update. In a section dedicated to social media, the Gibson Dunn update reports that “the use of social media continues to proliferate in business and social contexts, and that its importance is increasing in litigation, the number of cases focusing on the discovery of social media continued to skyrocket in the first half of 2015.”

And as succinctly noted by The Florida Bar Association in its publication, Florida Law Journal, “Social Media Evidence: What You Can’t use Won’t Help You” (2014) Volume 88, No. 1:

“Social media is everywhere. Nearly everyone uses it. Litigants who understand social media–and its benefits and limitations– can immeasurably help their clients resolve disputes. If not properly researched, preserved, and authenticated, the best social media evidence is worthless.”

And:

“Social networking sites have grown from a few thousand users to more than a billion. These sites have become a preferred form of electronic communication, surpassing email in 2009. As of March 31, 2011, 9,370,620 Floridians had registered for a Facebook account, which is approximately half of the state’s population. Based on these statistics, it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.

And we are of course seeing this explosive trend in the adoption of X1 Social Discovery ahead of new FRCP Rule 37(e). X1 Social Discovery is the undisputed leader in its field for the preservation and analysis of social media and other internet evidence. If you are not one of the several thousand eDiscovery, legal, and digital investigation professionals who have enthusiastically incorporated X1 Social Discovery into your standard preservation protocols, new FRCP 37(e) should be your final call to action.

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Filed under Case Law, eDiscovery, Social Media Investigations