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Litigating in the Age of Social Media

Some have avoided social media entirely; but the numbers of those eschewing online networking are shrinking. Last year, Pew Internet, a project of the Pew Research Center, published statistics showing that 73% of online adults use social networking sites. (Maeve Duggan & Aaron Smith, Social Media Update 2013, Pew Research Internet Project at http://www.pewinternet.org/fact-sheets/social-networking-fact-sheet/ (last visited April 8, 2014). The pervasive use of social media has various implications for litigation from pre-trial discovery to presenting evidence at trial. But once the trial starts, the use of social media does not necessarily stop, with sometimes serious consequences.

Although State v. Smith, 418 S.W.3d 38 (Tenn. 2013), is a criminal case, it is a good reminder for commercial litigators to consider social media when prepping witnesses or proposing preliminary and final instructions for jurors.  In State v. Smith, the judge in a murder case instructed jurors to avoid speaking with witnesses, defendants, or attorneys during the course the trial, but his only instruction relating to personal electronic devices cautioned against “texting and trying to find out about a trial or things like that.” About one hour into jury deliberations, a medical examiner that had testified on behalf of the state sent an email to the judge.  In the email, the medical examiner advised that, shortly after her testimony, she had been contacted by a juror via a Facebook post.  The juror had recognized the medical examiner as someone who had trained at a local hospital where the juror worked.

The jury ultimately returned a guilty verdict. Not surprisingly, defense counsel, who was denied the opportunity to question the juror making the post, moved for a new trial. The motion for a new trial was denied. On appeal, the Tennessee Court of Criminal Appeals “characterized the Facebook exchange as ‘mere interactions’ between a juror and a third person” and upheld the trial court’s refusal to allow questioning of the juror.

The Tennessee Supreme Court vacated the denial of the motion for a new trial and remanded the case for an evidentiary hearing on the extra-judicial communication.  The Court went on to state that

[t]he facts of this case demonstrate that this technological age now requires trial courts to take additional precautions to assure that jurors understand their obligation to base their decisions only on the evidence admitted in court. Trial courts should give jurors specific, understandable instructions that prohibit extra-judicial communications with third parties and the use of technology to obtain facts that have not been presented in evidence. Trial courts should clearly prohibit jurors’ use of devices such as smart phones and tablet computers to access social media websites or applications to discuss, communicate, or research anything about the trial. In addition, trial courts should inform jurors that their failure to adhere to these prohibitions may result in a mistrial and could expose them to a citation for contempt. Trial courts should deliver these instructions and admonitions on more than one occasion.

Counsel must also be mindful of the need for such precautions and should not shy away from requesting periodic instructions on avoiding commuting about the trial, including via social media. A similar instruction should be given to potential witnesses, especially if Rule 615 of the Federal Rules of Evidence will be invoked, as it so often is.

–W. Neal McBrayer