eDiscovery Daily Blog

eDiscovery Trends: Jurors and Social Media Don’t Mix

Discovery of social media is continuing to increase as a significant issue for organizations to address, with more and more cases addressing the topic, including this one and this one that have reached various conclusions regarding the discoverability of social media.  However, when it comes to social media, courts agree on one thing: jurors and social media don’t mix.  Courts have consistently rejected attempts by jurors to use social technology to research or to communicate about a case, and have increasingly provided pre-trial and post-closing jury instructions to jurors to dissuade them from engaging in this practice.

A recent example of juror misconduct related to social media is this case, where one of the jurors actually attempted to “Friend” one of the defendants on Facebook.  With so much information at our disposal these days and so many ways to communicate, some jurors can be easily tempted to ignore court instructions and behave badly.

At its December 2009 meeting, the Judicial Conference Committee on Court Administration and Case Management (CACM) endorsed a set of suggested jury instructions for district judges to consider using to help deter jurors from using electronic technologies to research or communicate about cases on which they serve.  These proposed instructions were published in thisMemorandum in late January.  These instructions were designed to prevent jurors from two activities:

  1. Independently researching a case, including through the internet or other electronic means,
  2. Communicating about the case, including by electronic means such as email or social media sites such as Facebook.

Several states, such as California and New York, have crafted and adopted their own instructions to regulate the use of social media and other electronic means to research a case.  It seems like a “no-brainer” that every state will eventually be forced to promote or adopt such instructions.  Of course, it also seems like a “no-brainer” for jurors to refrain from such activities anyway, but I guess this is the world we live in today, right?

So, what do you think?  Does your state have standard jury instructions prohibiting social media use?   Please share any comments you might have or if you’d like to know more about a particular topic.