ABA Releases Ethics Opinion On Juror Social Media Research

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other online venues.  Recently, his piece, “ABA Releases Ethics Opinion On Juror Social Media Research,” was published in the Defense Research Institute’s Trials and Tribulations Newsletter. In the piece, he surveys and comments upon the recent ABA rulings and notes its broader implications.

Here’s the first two paragraphs of the article:

In 2014, we, as practicing defense lawyers, find ourselves more than a decade into the age of social media in litigation. These days, without fail, nearly every legal publication and trade journal of note features an article about the value of social media in litigation. Over the years, we’ve learned the benefits of an online investigation of Plaintiffs (and the potential for splendid impeachment material which can arise from such queries), efforts to explore the backgrounds of Plaintiffs’ retained testifying experts , and of course, the general perils of lawyers using social media. We all know that prospective and sitting jurors use – and occasionally abuse – social media. In fact, these days, when preparing for trial, litigators rely upon social media data in determining which prospective jurors to consider or strike from the venire panel. Recently, on April 24, 2014, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 466, entitled “Lawyer Reviewing Jurors’ Internet Presence.” Generally, this comprehensive nine page ethical opinion offers guidance to litigators using social media to investigate potential and sitting jurors. Interpreting pre-Internet principles and applying them to the ever growing social media landscape, the new ABA opinion, as persuasive authority, offers guidance on these issues. The bottom line: When preparing for trial and investigating jurors, be mindful of the potential ethical issues at hand.

First and foremost, yes, litigators can investigate and review publicly available social media profiles of sitting and prospective jurors. The ABA opinion provides that “a lawyer may passively review a juror’s public presence on the Internet.” Like many, jurors have profiles on Twitter, Facebook, and LinkedIn (and countless other sites), and lawyers can input the juror’s name into their search engine of choice and review the results without fear of ethical implications. This conclusion makes perfect sense, as there is no reason to deprive lawyers of the ability to access information that the juror has published online for the world to see. In the opinion, the ABA committee likens this “passive review” of such public information to a lawyer “driving down the street where the prospective juror lives to observe the environs in order to glean publically available information that could inform the lawyer’s jury-selection decisions.”

For the rest of the article, please click here.

Kansas Federal Court Rebuffs Overly Broad Social Media Discovery Requests

Here we go again. Just as we’ve discussed before, the courts are limiting overly broad social media discovery requests served by defense counsel. The latest example:  Smith v. Hillshire Brands, No. 13–2605–CM (D. Kan. June 20, 2014). At its essence, Smith is an employment discrimination case in which the pro se Plaintiff alleged violations of both Title VII and FMLA. The specifics of the dispute need not be spelled out in detail as you’ve heard it all before.

Now, there were a number of components to the discovery dispute in this matter, but the social media discovery requests at issue were these:

Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement you made on or through any social networking website, including but not limited to Facebook .com, MySpace.com, Twitter.com, Orkut.com, that references or mentions in any way Hillshire and/or the matters referenced in your Complaint.

Request No. 18: Electronic copies of your complete profile on Facebook, MySpace, and Twitter (including all updates, changes, or modifications to your profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, and comments for the period from January 1, 2013, to present. To the extent electronic copies are not available, please provide these documents in hard copy form.

How curious to see a reference to Orkut in a social media discovery case! We wonder if the defendants had specific knowledge that the Plaintiff used Orkut or if that social media platform simply appears in all of their discovery requests.

Now, as you might imagine, Request No. 15 is legitimate and narrowly tailored, as it limits itself to social media postings relating to the employer or the events being litigated.

In fact, Plaintiff didn’t object to either of the requests, opting instead to produce – or claim to produce – all relevant documents. The dispute arose, however, when the employer defendant doubted that all documents had been produced.

Yes, the employer took the position that it could discover all of the Plaintiff’s social media activity as a result of his claims in the lawsuit. Skeptical of this argument, the Court noted:

Request No. 18 raises a more complex issue, as it seeks documentation of all of plaintiff’s activity on the named social networks since January 1, 2013, regardless of whether the activity has anything at all to do with this case or the allegations made in plaintiff’s complaint. Defendant asserts that this broad swath of information is relevant for at least two reasons. First, it “provide[s] a contemporary diary of Plaintiff’s activities, thoughts, mental/emotional condition, and actions,” which relate to plaintiff’s claim for damages arising from emotional distress. Second, it may support defendant’s “defense that Plaintiff abused his FMLA leave, which is the true reason for Plaintiff’s termination .” Defendant contends that the protective order governing this case adequately addresses plaintiff’s privacy concerns.

As it currently stands, the record does not support defendant’s extremely broad discovery request for all-inclusive access to plaintiff’s social media accounts. As plaintiff notes, such access could reveal highly personal information—such as plaintiff’s private sexual conduct—that is unlikely to lead to admissible evidence in this case. Information on social networking sites is not entitled to special protection, but a discovery request seeking it nevertheless must meet Fed.R.Civ.P. 26′s requirement that it be tailored “so that it ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ “ “Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s [social networking] account[s].” The court agrees with courts that have recognized that a discovery request for unfettered access to social networking accounts—even when temporally limited—would permit the defendant “to cast too wide a net” for relevant information.

As some defendants do, the employer in this case attempted to justify the breadth of the requests by pointing to the emotional distress damages alleged by the Plaintiff. This works, sometimes, and it’s not a bad argument. As social media profiles often showcase our daily lives and the emotions we experience in our lives, what better evidence can there be to support or rebut claims of emotional distress than such things? On this point, the court was cautious:

Based on the limited record before it, the court finds it prudent to follow what appears to be the intermediate approach taken by courts addressing this issue—to allow defendant to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state. The court concludes that this approach will permit defendant to discover information relevant to plaintiff’s emotional state, which he has put at issue, while protecting plaintiff from a fishing expedition into every thought he reduced to writing on the internet since January 1, 2013.

But it was one remark by the court that caught our eye and forced us to recognize once again the potential perils of overly broad discovery requests. Behold, the court’s suggestion that such things could be turned around on defendants:

Indeed, if the court were to accept defendant’s position on the scope of relevant discovery, defendant would likely be unhappy with the ramifications. For example, every Facebook post of every Hillshire manager and supervisor involved in the decision to terminate plaintiff could be deemed relevant because it might show discriminatory pretext.

No one wants that. Let’s be careful out there, okay?

Court of Appeals Puts Unnecessary Quotation Marks Around “Facebook”

Okay, so we don’t usually write about family law cases here at Abnormal Use, and it’s been a while since we wrote about events from the state of Nebraska. Yesterday, while perusing cases mentioning Facebook, we stumbled across In re Interest of A.W. & L.W., No. A-13-540 (Neb. Ct. App. Feb. 25, 2014), a recent case in which the court of appeals found “that the evidence clearly and convincingly established that termination of [the father’s] parental rights was warranted pursuant to [the relevant statute] and that termination was in [the children’s] best interests.” Yes, this is a case involving a father’s appeal of the trial court’s termination of his parental rights and the appellate court that affirmed that decision.

Chiefly, the case concerns the frequency of the father’s contacts with his children – or the lack thereof. This being the modern age, some of those contacts occurred via social media. Here’s some excerpts from the opinion itself:

After moving to Las Vegas, [the father] claimed that he attempted to maintain contact with his children through his uncle’s “Facebook” account. However, according to [the father], 2 weeks after he moved, [the mother] learned that [the father] had been using the uncle’s “Facebook” account and blocked the uncle from her and the children’s “Facebook” accounts. [The father] made no other attempts to contact his children during the time that he resided in Las Vegas until he moved to Larchwood, Iowa, in 2012, at which point he had two visits with his children: a 2–hour supervised visit on March 31, 2012, and a 1 1/2–hour therapeutic visit on January 4, 2013, supervised by [another adult]. [The father] did not see his children after the January 4 visit, despite his requests to have visits.

[The father] claimed that he did not contact his children while he was in Las Vegas after [the mother] blocked his uncle’s “Facebook” account because he thought that [the mother] had a protection order against him and he would have to contact his children through her. During the time that [the father] was in Las Vegas, [the mother] did not receive any communications from [the father], his friends, or relatives regarding arranging visitation with the children, even though [the father] had [the mother's] e-mail address which was known to [the father] prior to his move to Las Vegas and remained the same. Further, [the father] did not send the children any letters, cards, or presents during that timeframe.

[The father] first contends that the county court erred in finding that he had abandoned his children pursuant to § 43–292(1). He contends that he did not abandon his children for the relevant 6 months immediately prior to [the mother's] filing of the complaint for modification, which requested termination of his parental rights, because he continued to pay child support and attempted to contact his children through “Facebook” during that 6–month time period.

[The father] admits his efforts at maintaining contact with his children from November 2010 until March 2012 were minimal. He testified that he attempted to contact [the children] through his uncle’s “Facebook” account for about 2 weeks after moving to Las Vegas, but then he claimed that [the mother] discovered he was using the “Facebook” account and blocked his uncle from her account and the children’s accounts. [The father] admits that after the initial 2 weeks that he was in Las Vegas, he did not contact the children but claimed that he did not make additional attempts to contact his children for 1 year because he believed that [the mother] had a protection order filed against him.

Nothing extraordinary there, right? Certainly, it’s not unusual for references to Facebook to make their way into litigation, particularly family law cases, where the parent’s everyday decisions and lifestyle may be at issue. Most of us communicate using the Internet generally, or social media specifically, and a case analyzing one’s communications will likely stray into Facebook, Twitter, and the like.

But here’s the thing: It’s 2014. Why is the court of appeals placing scare quotes around the word Facebook? Isn’t Facebook such a prevalent and prominent website that we can now refer to it without quotation marks? By our count, the court mentions Facebook seven times in the opinion, and each time it does so, it places unnecessary quotation marks around the company name. Why?

Florida Court Rebuffs Request For Social Media Discovery

We knew it was coming, and we’ve seen evidence of it already. Courts are beginning to limit the nature of social media discovery, chiefly in light of the fact that we live so much of our lives online that not every post or status update can be discoverable in a lawsuit. Yesterday, in Root v. Balfour Beatty Const. LLC— So.3d —-, (Fla. Ct. App. Feb. 05, 2014), the Florida Court of Appeals overturned a magistrate’s order in a negligence case that had required the Plaintiff to produce a host of materials from her Facebook account. The Plaintiff was suing on behalf of her young son who was injured in an automobile accident near a construction site (the safety of which was at issue in the proceeding). It does not appear that the Plaintiff was present at the scene of the accident, and at that time, Plaintiff’s son was being supervised by his 17 year old aunt (which led to a negligent entrustment affirmative defense).

Here’s what the defendant’s asked for:

(o.) Any and all postings, statuses, photos, “likes” or videos related to [Plaintiff's]‘s
i. Relationships with [the injured child] or her other children, both prior to, and following, the accident;
ii. Relationships with other family members, boyfriends, husbands, and/or significant others, both prior to, and following the accident;
iii. Mental health, stress complaints, alcohol use or other substance use, both prior to and after, the accident;

….

v. Facebook account postings relating to any lawsuit filed after the accident by [Plaintiff] or others[.]

Not surprisingly, the Plaintiff object to the discovery requests on the grounds that they were overbroad. The Court of Appeals bought this argument, noting:

[Plaintiff's] complaint contains claims on behalf of [the injured child] for negligence as to each defendant and Root’s derivative claims for loss of parental consortium. Defendants responded with several affirmative defenses including negligent entrustment of [the injured child] by [Plaintiff], the aunt’s failure to supervise, and the driver’s negligence. As to [the injured child's] claims for negligence, none of the objected-to discovery pertains to the accident itself. Similarly, none of the objected-to discovery pertains to Defendants’ affirmative defenses. Instead, the discovery relates to [Plaintiff's] past and present personal relationships with all her children, other family members, and significant others; [Plaintiff's] past and present mental health, stress complaints, and use of alcohol or other substances; and lawsuits of any nature filed by [Plaintiff] or others after the accident.

At the hearing before the magistrate, the party seeking discovery didn’t help itself by noting that “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” Well, we as defense lawyers probably need to articulate the basis for our social media discovery requests a bit more artfully (although the magistrate judge, who apparently remarked at the hearing that “95 percent, or 99 percent of this may not be relevant,” did require production of the materials requested). The lesson: tailor social media discovery requests to require production of materials related as closely as can be to the claims and defenses in the case.

Blogs: A New Age of Credible Media (Sometimes)

Saying that the Internet changed media is an understatement worthy of a Nobel Prize. The days of reading the daily newspaper over a cup of coffee have been replaced with scrolling through RSS news feeds on a smart phone in between meetings. While the Internet has made news more accessible, many argue that accessibility doesn’t necessarily make for better news. After all, as the saying goes, “With the Internet, everybody becomes a journalist.” For every well-respected CNN or New York Times website, there is a Wikipedia or some other source of user-generated content which draws the ire of establishment critics. News is only as good as those that create it.

So, where should legal blogs fall into the mix? While none of us here at Abnormal Use are professional journalists, we take great pride in bringing you accurate legal news (with a touch of our own commentary, of course). At the end of the day, however, to many, we are still just a “blog” with whatever connotation that title brings. But, in this new age of media, shouldn’t some blogs be considered something more? We would never suggest that every blog carries the same weight of authority. Nor would we posit that a blog be viewed in the same light as a primary source. Nonetheless, when a blog such as SCOTUSblog, one of the preeminent news sources covering the Supreme Court, lacks official credentials to the Marble Palace, something seems wrong.

As the way we receive our media changes, so, too should the way that we perceive that media. Why shouldn’t a scholarly blog post be afforded the same level of scrutiny as a magazine article? We can verify sources and explore the credibility of the author from either form of media. The only difference between the two being the form in which the material is presented. A news source should be considered a news source regardless of the mechanism of delivery. Again, we would never suggest that Joe Schmo’s personal blog of drunken observations be afforded the same level of credibility as an article published in The New York Times. Nor are we suggesting that you view Abnormal Use in the same light as either. We only encourage you not to discount blogs because they are, well, “blogs.” News is only as good as those that write it. Check your sources. Check your authors. Make your own decision.

Juror’s Facebook Comments “Not Prejudicial” To Defendant in Washington Med Mal Action

Another trial, another juror posting comments about same on Facebook.

This time, it’s Figueroa v. High Line Medical Center, No. 68272-5-I (Wash. Ct. App. Oct. 14, 2013), a medical malpractice case (the basic facts of which are not important to the Facebook issue). Whatever the facts, the jury found for the plaintiff, and the doctor appealed on a number of issues.

One of his points of error was jury misconduct.  The relevant portion of the opinion reads:

Dr. Ryan argues that the court erred in not granting a new trial because of alleged juror and attorney misconduct. Dr. Ryan further argues that the trial court abused its discretion when it denied his motion for a new trial after a juror posted comments regarding the case on Facebook. A juror’s communication with a third party about a case constitutes misconduct.The trial court may grant a new trial only where such juror misconduct has prejudiced the defendant.

Here, no such prejudice was shown. The juror’s comments were limited and innocuous. They were nothing more than a description of the juror’s day interspersed with the following related comments on her jury duty:

• Spent the day in Superior Court doing my civic duty. On jury duty for next 2 weeks.

• Day 3 of jury duty. Very difficult to listen to a translator during the questioning. I can pick out some words.

• Day 4 of jury duty, off on Friday, and back to the jury on Monday. Hope to finish by noon on Thursday. It’s been interesting. Love the 1 1/2 hour lunches.

• My civic duty, jury duty ended today with a negligent claim on the doctor. This was tough to decided $s to the plaintiffs. Mentally exhausting!

While it was inappropriate for the juror to post anything on Facebook regarding the case, these comments were not prejudicial to Dr. Ryan.

(Citations and quotations omitted).

Sure, the status updates were probably harmless, and his only substantive remark referred to the verdict itself, after it had been rendered. However, it seems that the jury’s conduct was almost certainly violative of whatever instructions the judge may have given to the jurors prior to the institution of the trial. Oh, well.

Flexing Free Speech Rights With Your Index Finger – The Fourth Circuit and Facebook

Recently, our own Fourth Circuit Court of Appeals considered the First Amendment in the context of 21st century technology.  As you likely know all too well, Facebook has invaded most areas of our lives – it seems only appropriate that it envelop our jurisprudence, as well. As reported by The Washington Post, the Fourth Circuit has held that by clicking the “Like” button on a Facebook post a person is exercising his or her First Amendment rights. The case is Bland v. Roberts, — F. 3d —, No. 12-1671 (4th Cir. Sept. 18, 2013) [PDF].

The facts of the case are straightforward, but they inspire some good old fashioned eye rolling.  A Hampton, Virginia sheriff’s deputy was fired after he clicked “Like” on the Facebook campaign page of the candidate running against his boss.  [Sidenote:  Why would you do that?  This is a clear violation of the "silly plaintiff" rule.  But we digress.]  The fired employee, Daniel Ray Carter, sued, saying that he was fired for exercising his free speech rights.  The federal district court granted summary judgment against Carter on the grounds that clicking “Like” was not an actual statement, and thus, it did not rise to the level of protected speech. Both Facebook and the ACLU filed amicus briefs in which they disagreed with the district court.  The Fourth Circuit overruled the district court, and we believe rightly so.  Judge Traxler, writing the opinion, likened the “Like” to a political sign posted in a front yard.  Did Carter have the right to display a yard sign of his boss’s opponent on his front lawn?  Yes.  [Is it a good idea?  Different question.]  In our opinion, the district court not only got it wrong, but very wrong.  First Amendment jurisprudence makes it abundantly clear that non-verbal “speech” is protected.  The district court seems to have stepped back in time, forgetting some important precedent.

The Washington Post also had a nice article preceding the Fourth Circuit’s opinion, highlighting other disputes that have arisen from the use of social media in the workplace.  You can find that story here.

Do you “Like” the Court’s opinion?  What implications do you think it will have going forward?  Remember, the related issue of an employer’s ability to force employees to give up Facebook passwords is also still hanging out there.  A U.S. News report from April 2013 on that subject, outlining the lawsuits and proposed legislation, can be found here.

Tennessee Supreme Court Frowns Upon Juror Facebook Messaging State’s Expert Witness

Let’s say you are a juror in a first degree murder case. Some advice: Don’t look up the state’s expert on Facebook and message him. Seems reasonable enough, right? Well, let’s talk about State v. Smith, — S.W.3d —, No. M2010–01384–SC–R11–CD (Tenn. Sept. 10, 2013). That appeal, as the court set forth, concerned “the appropriate response when a trial court learns during a jury’s deliberations that a juror exchanged Facebook messages with one of the State’s witnesses during the trial.”

Sigh.  Here we go again.

During void dire, the attorneys did not ask the prospective jurors if they knew the assistant medical examiner who performed the autopsy and would testify on behalf of the state (even though several or the jurors were employed by the Vanderbilt Medical Center, where the witness had trained). Of course, as is custom, the trial court instructed the seated jurors not to speak with any of the attorneys or witnesses. The trial proceeded as per usual. However, during the jury deliberations, the assistant medical examiner emailed the trial judge the following missive:

I can’t send you actual copies of the emails since Facebook is blocked from my computer here at work, but here is a transcript:

[Juror]: “A-dele!! I thought you did a great job today on the witness stand … I was in the jury … not sure if you recognized me or not!! You really explained things so great!!”

[Medical Examiner]: “I was thinking that was you. There is a risk of a mistrial if that gets out.”

[Juror]: “I know … I didn’t say anything about you … there are 3 of us on the jury from Vandy and one is a physician (cardiologist) so you may know him as well. It has been an interesting case to say the least.”

I regret responding to his email at all, but regardless I felt that this was a fairly serious violation of his responsibilities as a juror and that I needed to make you and General Miller aware. I did not recognize the above-referenced cardiologist or any other jurors.

First of all, yikes. The trial court informed the attorneys of the communication, and the jury ultimately returned with a verdict of guilty. The trial court denied a motion for new trial based on its refusal to permit the defense to question the juror about the improper communications. The court of appeals affirmed. Here’s what the Tennessee Supreme Court said:

Even though technology has made it easier for jurors to communicate with third parties and has made these communications more difficult to detect, our pre-internet precedents provide appropriate principles and procedures to address extra-judicial communications, even when they occur on social media websites and applications such as Facebook.

When the trial court received competent and reliable evidence that an extra-judicial communication between a juror and a State’s witness had taken place during the trial, it was required to do more than simply inform the parties about the email and then await the jury’s verdict. The trial court erred by failing to immediately conduct a hearing in open court to obtain all the relevant facts surrounding the extra-judicial communication between [the medical examiner] and [the juror]. This hearing may very well have necessitated calling both [the juror] and [the medical examiner] to testify under oath about their relationship and the effect of the communication on [the juror's] ability to serve as a juror. Because the contents of the email focus only on events occurring before the jury received its instructions and retired to deliberate, the court may also have been required to call other members of the jury to determine whether [the juror in question] shared any extraneous information with other jurors.

[T]he portion of the trial court’s order that denies Mr. Smith’s motion for a new trial based on [the juror's] improper extra-judicial communication with [the medical examiner] is vacated. The case is remanded to the trial court to conduct a hearing to determine whether [the juror's] Facebook communication with [the medical examiner] disqualified him from continuing to serve on Mr. Smith’s jury. Following this hearing, the trial court shall make findings of fact and conclusions of law regarding whether the challenged communication requires [the juror's] disqualification or whether [the juror's] misconduct was harmless beyond a reasonable doubt. If, for any reason, the trial court is unable to conduct a full and fair hearing with regard to [the juror's] improper extra-judicial communication with [the medical examiner], then the trial court shall grant Mr. Smith a new trial.

The 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.

(Footnotes omitted).

What the heck was this juror thinking? The trial court instructed the jurors not to communicate with witnesses during the course of the trial. This means that even after hearing that instruction from the court, the juror ventured home from the courthouse, logged into Facebook, looked up the medical examiner’s profile, and send him a direct message on that social media site. Gee whiz.

The Google Wi-Fi Litigation

Google claims it made an honest mistake in 2010 when its Street View cars were collecting too much data. Instead of just obtaining the bare minimum data needed to map out the locations of Wi-Fi networks, the cars allegedly unintentionally collected “packet” data that contained private user information.  Armed with Google’s admission that it had, at a minimum, made an honest mistake, class-action lawyers pounced, alleging violations of federal anti-wiretapping laws.  According to Reuters, Google’s attempts to have the cases dismissed were recently denied.

Google sought dismissal of the cases on the grounds that the old pre-Internet telephone privacy laws don’t apply. In so doing, Google argued that dismissal was appropriate because data transmitted over a Wi-Fi network is readily accessible to the public. Alternatively, it said the Wi-Fi data could be considered an unencrypted “radio communication,” which means it would not be subject to liability under the wiretapping law.  However, District Judge James Ware disagreed with Google’s contention and held that the cases could move forward.

Google appealed, and the Ninth Circuit ultimately agreed with the district court. The Ninth Circuit found that the data collected by Google didn’t fit into either category; it was neither a ”radio communication” nor an “electronic communication”  The ruling also rejected the idea that Wi-Fi data is “readily accessible” because most of the general public lacks the expertise to intercept and decode payload data transmitted over a Wi-Fi network.

The case in question is Joffe v. Google, Inc., — F.3d —-, No. 11–17483 (9th Cir. Sept. 10, 2013), which affirmed In re Google Inc. Street View Electronic Communications Litigation, 794 F. Supp. 2d 1067 (N.D. Cal. 2011).

Federal Court Denies State’s Motion To Seal Following Habeas Counsel’s “Ill-Advised” Facebook Post Citing Kris Kristofferson

Well, once again, we advise our lawyers friends to be careful what they post on Facebook. A new federal court case presents both social media and Blue Book citation issues.

On that note, we must direct your attention to Havard v. Epps, No. 5:08CV275KS (S.D. Miss. Aug. 30, 2013).  It’s a habeas corpus proceeding, not something we write about often here at Abnormal Use.  But because of its connection to social media, we feel compelled to offer an observation or two on this very new – and very brief – district court opinion. The Respondents in that case – various governmental officials including the  Mississippi Department of Corrections – filed a motion for clarification and motion to seal. Just so we can put it in proper context, here’s how the court described the procedural issue at hand:

This matter came before the Court on Respondents’ Motion for Clarification and their Motion to Seal. The Court earlier allowed Petitioner to amend his Petition for Writ of Habeas Corpus to reflect state court proceedings that have occurred since the original Petition was filed. The basis for Respondents’ Motion for Clarification is their contention that the Memorandum that Petitioner submitted in support of his Amended Petition may contain new claims that may go outside the scope of the amendment allowed by the Court. According to Respondents, “the State cannot determine whether (and where) Petitioner made substantive changes to arguments which Petitioner did not move to amend. Therefore, the State cannot identify which issues need responsive pleadings.” Respondents did file an Answer to the Amended Petition without objection; it appears that the issue lies with the Memorandum.

(Docket entry citations omitted).

The court denied the motion for clarification, but it is the motion to seal which interests us.  Apparently, the Respondents sought to ” prohibit any non-party from accessing documents filed in this case.”  That does not sound unusual, right? That, after all, is the purpose of a motion to seal.  Well, here’s the social media money paragraph:

Here, Respondents’ concern was apparently triggered by a Facebook post of one of Petitioner’s counsel about the Motion for Clarification discussed above. In particular, counsel wrote, “After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson.” However ill-advised this post may have been, in terms of the standards of professionalism by which lawyers are encouraged to govern themselves, this statement does not give rise, in the Court’s opinion, to a need to seal this record, for three reasons. First, there is no indication that the record of these proceedings in state court is unavailable to the public; second, the state court record was conventionally filed in this Court and is not available for electronic access; and, finally, information about this case is so widely available through Internet sources that closure of this record will not prevent dissemination of the details of the charges or the identification of the infant victim in this case. For these reasons, the Motion to Seal will also be denied.

(Emphasis added).

The State attached a grainy, black and white copy of the Facebook profile and wall of the attorney who made the post as an exhibit to the motion.  That attorney, in conjunction with the post, also embedded this YouTube post featuring the song. The motion to seal does not recite how the attorneys for The State came across the Facebook post in question, nor does it disclose the user who logged in to Facebook to print the profile.

Posting about one’s cases on Facebook is always a perilous enterprise, even if one’s Facebook profile is set to private, as any friend (or sometimes, friend of a friend) can access and capture the photograph.  Having one’s Facebook profile attached to a federal motion is not something one would expect, but as can be seen, it is a now possible consequence. Be careful out there, folks.

Our biggest disappointment, of course, is that the federal court did not see fit to quote – or cite to – the Kris Kristofferson.  If we were forced to guess, we would have assumed that the lawyer was quoting “Me and Bobby McGee,” written by Kristofferson (and Fred Foster) and made famous by Janis Joplin. “Freedom is just another word for nothing left to lose,” right?

But we would have guessed wrong.  We located the motion to seal in question, which was filed on August 26, 2013 (just four days before the order), and here is the Facebook post in full:

After responding to an asinine motion filed by the State, which not only wants to  kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris  Kristofferson. There are some similarities between prophetic songwriters and lawyers:

And you still can hear me singin’ to the people who don’t listen, To the things that I am sayin’, prayin’ someone’s gonna hear. And I guess I’ll die explaining how the things that they complain about, Are things they could be changin’, hopin’ someone’s gonna care. I was born a lonely singer, and I’m bound to die the same, But I’ve got to feed the hunger in my soul. And if I never have a nickle [sic] I won’t ever die ashamed. ‘Cause I don’t believe that no one wants to know.

How about that? That, by the way, is from Kristofferson’s “To Beat The Devil,” from his debut album Kristofferson, released way, way back in 1970.

On a final note, we do think the federal court in question missed an opportunity to cite to Kristofferson’s album using proper Blue Book formatting.  According to Blue Book Rule 18.6.1, “[i]f a particular song or musical work is referred to, cite it by analogy to shorter works in a collection according to rule 15.5.1″  That would be as follows: Kris Kristoferrson, To Beat The Devil, on KRISTOFFERSON (Monument Records 1970).