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“Lurid e-discovery”, pet grooming and ham
My dog was bathed and groomed on Wednesday. On Thursday, I cooked a ham and left it to cool on the stovetop. There were workers in the house all day long and the dog was irritable and behaving badly. I went upstairs to check on work progress and heard a crash and a yelp and came downstairs to see my freshly bathed basset hound covered head to toe to belly in dripping ham juice with the broken glass roaster all around her (not to mention my ham). She was so shocked she didn’t know whether to lick the floor or herself. The groomer got a good laugh out of the story and at the miserable and greasy dog.
Then later on Thursday, I saw a story over at LexisNexis titled “In A Lurid Story Of E-Discovery And Ham, Magistrate Judge Tells Parties To Pay For A Forensic Expert To Sort Through The Data”. Coincidence? I think not. On the other hand, we do need to comment that while this is a light-hearted post, the potential traumatic impact of workplace sexual harassment and wrongful termination is very real, and not funny at all.
In this “lurid” tale of the HoneyBaked Ham company and allegations of both sexual harassment and retaliation–there are multiple elements to consider in the EEOC-filed class action suit against HoneyBaked Ham: social media, workplace climate, the emotional impact of victimization, pejorative labels, sexual harassment, retaliation, and what is private and what is not. HoneyBaked Ham wanted to assess the Facebook account activity of female members of the class action suit and told the judge they thought there would be relevant Defense information to be found via an e-discovery process on those Facebook pages. The judge agreed to the Defense request for e-discovery:
“Judge Hegarty determined that “there is no question [HoneyBaked] has established that the documents it seeks contain discoverable information.” For example, he pointed to a photo one of the women posted of herself wearing a t-shirt imprinted with a foul adjective-easily the most offensive term used to describe a woman-a term she says a HoneyBaked employee used to describe her. Also on her Facebook page, according to the judge’s order, this class member shared her financial expectations from the suit, her feelings about the loss of a pet and a broken relationship. She also described her positive outlook on life post-termination, her sexual aggressiveness, her post-termination employment, her sexual liaisons, her income opportunities, and sexually amorous communications with other members of the class. The list goes on. (Are you ready to close your Facebook account yet?)”
In brief, the judge appointed a special master to go through Facebook, social media accounts, emails, text messages, and so on to find any and all communications that might be relevant to the class action suit. A questionnaire was designed to focus the e-discovery so that not everything was reported simply because it was salacious. Whew. Does this mean there is privacy online after all?
Probably not. This is a cautionary tale. A veritable object lesson. And here is the lesson. Do not leave your freshly baked ham cooling within reach of an inquisitive and food-driven basset hound. And whether you work for the HoneyBaked Ham Company or elsewhere, do not post things on Facebook (or email them, or text them, et cetera, et cetera) unless you are comfortable with them being the subject of e-discovery at some point in the future.
The Viktor Bout “juror pledge” [“I will not do research on the internet”]
It is frankly amazing that this modest but important step forward hasn’t gotten more attention. When Judge Shira A. Scheindlin of Federal District Court in Manhattan said she would have jurors sign a pledge to avoid internet research in the Viktor Bout trial, we paid attention. The New York Times quoted Judge Scheindlin:
““I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name,” the judge said at the hearing, held this month. “We in the judiciary have been discussing this.”
A few moments later, Judge Scheindlin told the lawyers that she would write a pledge that jurors might be required to sign, promising that they would not turn to the Web to look up Mr. Bout or anything related to his trial until it was over.
Those who signed the pledge, Judge Scheindlin said, would be subject to perjury charges if they broke the agreement.”
Jurors researching cases on the internet have been a thorn in the side of the justice system for years. The act of researching and bringing information back to fellow jurors (resulting in mistrial) has been called the “Google mistrial”. The problem has gotten so pervasive, a judge in Minnesota has begun a single-subject blog called Jurors Behaving Badly .
While many papers covered the announcement that Judge Scheindlin was going to require a “juror pledge”, no one seems to have published the actual pledge itself. A widely circulated AP press release was published extensively as the trial opened, all it said was that the pledge had been signed under penalty of perjury.
“Twelve jurors and three alternates were chosen Tuesday during a daylong process. U.S. District Judge Shira Scheindlin required all of them to sign a first-of-its-kind juror pledge, in which they promised not to research any of the issues or parties involved in the trial on the Internet. The pledge contained a signature line after the words: “Signed under penalty of perjury.””
This is a “first of its kind” pledge on a topic that has been written about extensively–with many recommendations for wording. We are grateful to the writer on Twitter who provided us with the actual pledge (thanks @kathilynnaustin).
Here is the actual wording of the juror pledge in the Viktor Bout trial:
I agree to follow all of the Court’s preliminary instructions, including the Court’s specific instructions relating to Internet use and communications with others about the case. I agree that during the duration of this trial, I will not conduct any research into any of the issues or parties involved in this trial. Specifically, I will not use the Internet to conduct any research into any of the issues or parties involved in this trial. I will not communicate with anyone about the issues or parties in this trial, and I will not permit anyone to communicate with me. I further agree that I will report any violations of the Court’s instructions immediately.
Signed under penalty of perjury.
____________________________
____________________________
(Sign and Print)
Dated: New York, New York
October 11, 2011
Will it work? Or, as some say, will it simply put the idea in jurors’ heads to go do some internet research perhaps finding this transcript submitted by the US Government into evidence? We’ll have to wait and see. But jurors are already doing research and it is simply an automatic act for many to search the internet for information. Research points toward Judge Scheindlin being spot on.
We don’t think it’s gone far enough, but it’s a healthy start. The next steps include a clear statement of the potential penalties for juror misconduct. Not that we want to see people going to jail, but it’s useful for them to appreciate the full importance of their behavior.
Perhaps a signed pledge (under penalty of perjury) will alert them to not research the case front and center for jurors as they proceed through trial. Or at least, imbue them with a full appreciation for the importance of their agnostic role.
We hope so.
What’s happened to Twitter?
We’re seeing less overall Twitter activity in our observations (fewer RTs, fewer DMs, fewer messages overall). Is it Twitter fatigue? Hard to say. The demise of Twitter has long been predicted by the naysayers. And it’s tough to keep up substantive content day after day after day. (By the way, follow us @keenetrial!) But, like blogging, it’s now become something we simply do as a means of keeping ourselves fresh, sharing information we find of interest, and meeting new people we would otherwise not encounter.
This study, though, caught us by surprise. Most of us are aware of the struggles public opinion surveys have in contacting individuals for phone surveys since the advent of cell phones. More than ¼ of American households have no land-line phones at all according to a new report from the Pew Research Foundation. This makes it tough to assess public opinions (not to mention the growing number of those reached by telephone who simply do not participate).
Science Daily recently published a report on Twitter being compared to public opinion polls. While Twitter represents a subset of the public (likely younger, more technology comfortable among other things), the researchers found that “computer analysis of sentiments expressed in a billion Twitter messages during 2008-2009 yielded measures of consumer confidence and of presidential job approval similar to those of well-established public opinion polls”.
The study’s authors point to difficulties separating the ‘noise’ from actual useful information as they analyze ‘tweets’ but overall they are positive as to the benefit that can be gained from learning how to understand Twitter content as a barometer of public opinion. You can download a copy of the actual paper here. We’re not sure what this means for Twitter’s future but given the growing difficulty in obtaining good data through telephone interviews, there is certainly utility in researchers exploring ways to use the treasure trove of tweets that make up Twitter.
I know what you did last weekend (and the weekend before)
Social media involvement has become a fact of life. We have profiles on-line with connections to friends, family, colleagues, and people who really are more strangers than friends. While there have been concerns expressed about the potential for privacy intrusion in all this publicly, until now there have only been suppositions. Recently though, a student research project at MIT, Project ‘Gaydar’ was used to identify sexual orientation of students through Facebook ‘friends’. (The comments on this article are an interesting read as well) Other studies (described in the same Boston Globe article) predicted political affiliation, where people lived, their gender, their dog’s breed and whether someone was likely to be a spammer.
Tracking information like this isn’t exactly new. Following up on the Boston Globe story, Mind Hacks describes ‘traffic analysis’ in law enforcement. This is a pre-internet technique used to identify social networks through phone call patterns. Both the Project ‘Gaydar’ work and ‘traffic analysis’ rely on the principle of ‘homophily’—or ‘birds of a feather flock together’. We connect with people who are like us and therefore who are friends are may reveal more than we are intentionally choosing to disclose.
Two tips:
Watch what you do and say on social network sites. What you do on the internet will essentially live forever. What is clever and witty in context can haunt you forever as a sound-byte.
Pay attention to what jurors do and say on the internet. Blogs, social networks, discussion forums, online profiles—all these resources are being used by potential employers and schools to learn more about their applicants. Use them to learn about jurors’ beliefs and biases (either for or against your particular case).
In other words, be careful and be strategic.
It’s not just jurors who are doing it
If you haven’t heard accounts of problems related to jurors and the internet in the past year, you have been living under a rock. The increase in media attention makes it seem like a new problem. However, the internet has played a disruptive role in courtroom activities and jury deliberation since at least 2001 according to the Citizen Media Law Project. And while the legal system’s attention has been largely on jurors, don’t kid yourself! Judges. Parties. Witnesses. Attorneys. People who should know better are using the internet inappropriately. It really isn’t just the jurors.
Last week I had the privilege of participating in a distinguished program at the annual meeting of the American College of Trial Lawyers in Boston regarding the complications of internet use and jury trials. As part of the preparation for that program we at KTC did some extensive research on the role of the internet in the courtroom and prepared a brief paper. Here is some of what we found:
Social media use is most pronounced among those 25 and younger with sharp declines as we age. But don’t assume this is a consideration for younger jurors alone. Fellow panelist Sean Ellsworth, a criminal defense attorney from Miami, related the story of an important trial tainted by juror internet research. When the misconduct by a single juror was brought to light, the judge individually interviewed the entire jury. Of the 12 jurors, 8 had done some form of internet research related to the case, and the age range of the offenders was 20-68!
Social media use is a fact of life for most of us. If a burglar can’t resist checking his Facebook status while in the high-adrenaline process of burglarizing your home, what’s to stop a juror during courtroom tedium?
But it isn’t just jurors! We found examples of judges, attorneys, witnesses and parties in addition to jurors. Ex parte communication, blogging case facts too thinly disguised (as was also discussed on the panel by Boston personal injury attorney Elizabeth Mulvey), Facebook snooping, texting witnesses and more.
Jurors do, of course, misuse the internet by doing research and posting updates to Facebook or Twitter.
So what should be done? Many suggestions have been made (in addition to much hand-wringing). Our review of the literature (popular and professional) suggests the following strategies:
- Revise jury instructions with specific language about electronic devise use. The instructions need to include an explanation of why it is important, not merely a command to resist.
- Remind the jurors at regular and appropriate intervals.
- Tell jurors that part of their oath is to report any sign of juror misconduct by anyone on the jury, including any indication that someone is using the internet in violation of the rules.
- Make it clear that violations of these rules are violations of the law.
- Add voir dire questions that address actual juror internet use.
- Ask in voir dire if jurors would abide by instructions not to use the internet.
- Consider questions jurors will have as the trial unfolds, and include the issues in the examination of witnesses.
- Allow jurors to ask questions. It has the effect of diminishing juror longing for extra information, and allows them to feel like a more active part of the trial process.
Arm yourselves with information to deal more effectively with the challenges. Read the whole paper we prepared. Visit our website and download the article ‘Wired for Justice: The Internet in the Jury Room”.
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