Category Archives: Social Media Investigations

Key Social Media Evidence Missed, Court Finds “No Justification” for Defense Counsel’s Failure to Perform Adequate Pre-Trial Social Media Investigation

Law Journal for webLast week the US District Court of Appeals, 10th Circuit, affirmed a trial court’s ruling denying a motion for new trial based in part on newly discovered (post trial) social media evidence. Xiong vs. Knight Transportation, (D.C. No. 1:12-CV-01546-RBJ) (D. Colo. July 27, 2016). This decision illustrates the importance of performing a diligent and timely social media evidence investigation, most certainly before trial.

The case involved a major traffic collision, where a Knight Transportation truck collided with Plaintiff’s car, forcing it into the median where it overturned multiple times. Xiong suffered a spinal compression fracture from the accident. The Plaintiff, her family and friends all testified at trial that she incurred severe pain from her injuries, which impacted her social life and daily activities. The jury awarded Xiong $832,000.

After the trial, a paralegal employed by Knight Transportation’s counsel found a litany of Facebook evidence apparently showing Xiong taking a trip to Las Vegas, visiting nightclubs, attending a wedding and smiling happily with friends at restaurants. Based upon the results of this Facebook investigation, Knight Transportation’s counsel hired a private investigator to follow Xiong and record her daily activities, which led to even further evidence supporting the defense’s case.

Citing this newly discovered Facebook and Facebook-derived evidence, Defendant Knight Transportation filed a motion for new trial. However, the district court denied Knight Transportation’s motion, finding that “the new (Facebook) evidence could have been discovered before trial and Knight offered no justification for its failure to develop it earlier.” The appellate court upheld the trial court’s decision.

A key apparent flaw in Knight Transport’s social media investigation, as suggested by the court’s written opinion, was that the investigation team seemingly only realized after it was too late that a Facebook page maintained by Plaintiff’s cousin contained social media evidence relevant to the case. This illustrates the importance of not only performing a timely social media investigation, but one that utilizes proper technology to enable a scalable and cost-efficient effort that is not limited to a small number of screen captures.

When rudimentary tools such as web browsers and print screen are used, social media investigations are indeed burdensome, costly and inefficient. A single publically available Facebook account may take hours to review manually, and may often require over 100 screen captures to collect with manual processes. This limits the ability to branch out to other sources of publically available information, such as key friends, spouses and, as in this case, a close cousin.

However, with the right software, such investigations can be the foundation of a very scalable, efficient and highly accurate process. Instead of requiring hours to manually review and collect a public Facebook account, the right specially designed software, like X1 Social Discovery, can collect all the data in minutes into an instantly searchable and reviewable format.

So as with any form of digital investigation, feasibility (as well as professional competence) often depends on utilizing the right technology for the job.  As law firms, law enforcement, eDiscovery service providers and private investigators all work social discovery investigations into standard operating procedures, it is critical that best practices technology is incorporated to get the job done.

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Filed under Case Law, eDiscovery, 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