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Clio Cloud Conference 2014

Legal Process using Social Media: Evidence, Jury Tampering, and the Service of Documents

SEPTEMBER 22 – 23, 2014 · CHICAGO, ILLINOIS

Clio Cloud Conference 2014 #ClioCloud9


Effect of Internet on Legal Communications

• Easy access to Internet results in outsourcing of basic duties on a global scale

• Work can become easier and more convenient, as communication requires less time

• Increased quality of service when time saved from correspondence


Social Media for Marketing

• low cost of entry, low level of skill• social media is one of the major vehicles for communication for many small and mid size firms

• some jurisdictions regulate content of this marketing• generally cannot be misleading• some restrict aggressive tactics or emotional pleas

• concerns over quality control (are we cheapening the brand?)

• but social media is so much more for lawyers…


Social Media as Evidence• duty to preserve evidence; duty belongs to the court

• destruction of evidence negatively affects the judicial process by obstructing the administration of justice and ability the truth

• but what is the quality of this evidence? who authenticates it?


Social Media as Evidence • Advent of digital media and Electronically Stored Information (ESI) complicates matters

• Sedona Conference acknowledged the world is drastically different between the paper world and the digital environment we are entering

• Although historic rules clearly stated not to destroy physical evidence, it’s relatively easy to manipulate and delete ESI

• ESI provides a plethora of evidence, if maintained adequately


Social Media as Evidence• Spoliation elements regarding ESI:

Did the evidence exist?Was there a duty to preserve the evidence?Was the evidence crucial to the opposing party’s case or

defence?

• Is there always an obligation to maintain evidence even before it becomes evidence?

• Judiciary struggles with emerging technology; Reluctance to clarify pre-litigation preservation duty• • Rule 16, Electronics Communications Privacy Act, 1986 allows data requests


Social Media as Evidence• Social media can be used to “stage” evidence (scheduled tweets or posts)

• Create fake alibis or narratives (but consider geolocation, metadata)

• Zilla van den Born’s Fake Trip to SE Asia• @InternalRevenueSelfies




Social Media as Evidence• Cloud computing a platform that could serve as an example of available evidence

• Data is available anytime, anywhere, but could also be manipulated or deleted without a trace

• Who would be responsible if data is interfered with?


Social Media as Evidence• client management poses a particular concern to many lawyers

• absolute bans for using social media unlikely to work

• greater emphasis on education of proper and responsible use



Social Media as Evidence• forensics may require specialists in hardware, software, networking, databases, and multimedia

• subpoenas and orders for digital format evidence still developing

• complexities for the jury; what if they don’t “get” it


Jury Tampering by Social Media

• Prejudice to jury is along-standing concern, before social media; impartiality of potential jurors in questions when they have access to outside sources of information

• Information today is more easily accessible, and the average social media user already person filters vast amounts of data daily

• Prejudice becomes diffi cult to control



• Ways to prevent potential bias of the juror could include:Banning electronic devices from the courthousesBlocking Internet accessEducating the jury as to the reasons for these

limitations

• Cannot control what jurors read prior to the trial

• Can you investigate your jury pool using social media? If so, how?• Increase in “intelligent” research in jury selection



• Jury issues go beyond prejudice, and extend to attention spans and listening styles

• Contemporary jurors who use social media may consider trials too slow and and rigid

• May miss or ignore arguments regarding minute details in evidence

• Do litigators need to adjust their presentation style for jury trials? Will judges resist this?


Service of Documents through Social Media

• Some civil courts allow the service of process on a defendant’s social media page

• Usually only when traditional service is unavailable or ineffective

• Little consideration over verification of social media accounts (“spoof” accounts)



Service of Documents through Social Media

• Courts have enhanced access to justice and transparency by distributing decisions online, increasing filing information online

• Will use of social media by the courts bolster its image, or cheapen it?

• Social media used to build trust with the public• Opens courts up to entirely different level of scrutiny and criticism

• What is the role of lawyers?


Thank you for listening!