Facebook And Twitter Subpoenas, Privacy And The Law

Posted on August 6, 2012 by Hayes Hunt — No Comments ↓

By Hayes Hunt and Jillian Thornton

955 million people are Facebook users and there are 500 million Twitter users worldwide. With these staggering numbers, social media is a goldmine or minefield for lawyers seeking information. What happens when a lawyer sends a third-party subpoena to Facebook or Twitter about an individual?

The answer is Facebook and Twitter will likely object on the grounds that the production of private information would violate the Stored Wire and Electronic Communications Privacy Act (“SCA”). The SCA prohibits an internet company from disclosing a user’s private information unless the user provides consent. Courts have thus generally held that a party cannot obtain social-media data by merely sending a subpoena to Facebook or Twitter.

Facebook takes the position that it is prohibited by the SCA from disclosing a user’s private information, and generally asks to dismiss a subpoena that asks for private information. See, e.g., Juror Number One v. Superior Court, 206 Cal. App. 4th 854 (Cal. App. 3d 2012) (noting that Facebook moved to quash a subpoena under the SCA, and arguing that the requested information could be obtained from the user himself, who “owned” his profile information). Facebook actually receives so many subpoena requests for user data that it currently dedicates a section of its online Help Center to answering questions about civil subpoenas. See Law Enforcement and Third-Party Matters, Facebook.

The SCA is not all-encompassing though. For example, the SCA permits the government to compel disclosure of the basic subscriber and session information using a subpoena. In addition, one court recently held that Twitter must produce user information in response to a criminal subpoena. See People v. Harris, Case No. 2011NY080152, 2012 WL 2533640 (N.Y. Crim. Ct. June 30, 2012). In Harris, the court denied Twitter’s motion to quash a subpoena to obtain a user’s information, email address, and posts for a certain time period. Although Twitter argued that the user owns his tweets, the court held that users do not have standing to object to the criminal subpoena because the user has no proprietary interest in the information, nor does the user have a reasonable expectation of privacy in information shared with third parties. “There can be no reasonable expectation of privacy in a tweet sent around the world.” Id. at *3. The court concluded that “[s]o long as the third party is in possession of the materials, the court may issue an order for the materials from the third party when the materials are relevant and evidentiary.” Id.

You can expect to see more judges ordering Facebook and Twitter to produce “private” information in response to third-party subpoenas.

Hayes Hunt

Tagged with: Discovery, privacy, Social Media Law, subpoena, Technology and Law
Posted in Social Media & Law

Predictive Coding – Clawing Back Privileged Documents

Posted on July 23, 2012 by Hayes Hunt — No Comments ↓

By Hayes Hunt and Jillian R. Thornton

With regard to privilege review, lawyers utilizing predictive coding of ESI need to be especially vigilant not to inadvertently produce privileged documents. Although predictive coding can be used to assess privilege as well as relevance, lawyers need to evaluate the benefit compared to the risk of disclosure. Under the federal rules governing clawback, a “disclosure of a communication or information covered by the attorney-client privilege or work production protection … does not operate as a waiver in a federal or state proceeding if (1) the disclosure is inadvertent; (2) the holder of the privilege took reasonable steps to prevent disclosure,” as well as reasonable steps to correct the error. Thus, whatever method of ESI review lawyers use, it must rely on reasonable steps to prevent disclosure. This is a subjective standard, and lawyers using predictive coding would be wise to carefully document the process of how they code for privilege. In at least one federal case, the court has held that a party waived its right to attorney-client privilege by mistakenly producing privilege documents after employing a faulty keyword filter. See Victor Stanley v. Creative Pipe, 250 F.R.D. 251 (D. Md. 2008). Part of the court’s decision was based on the defendant’s “regrettably vague” explanation of how the keywords were developed, how the search was conducted and what quality controls were employed. Thus, the need for precision in designing the search program and extensive quality control is obvious.

Given the ever-expanding universe of ESI, most lawyers would be wise to consider using computer-assisted review and especially predictive coding. After all, the research has shown that predictive coding is more precise, makes fewer errors and identifies more relevant documents than human reviewers. This should not come as a surprise when one considers the differences in opinion among lawyers about what information is “relevant.” When you add millions of pages of documents, fatigue plays a role for human reviewers. Based on these factors in addition to the dramatic saving of time and money, it is clear that predictive coding and similar methods are going to revolutionize how we conduct e-discovery.

Published in The Legal Intelligencer on June 27, 2012

Hayes Hunt

Tagged with: attorney work product, attorney-client privilege, Claw back, Discovery, inadvertent disclosure, Litigation, Litigation Practice, privileged documents
Posted in Litigation

What Judges are Doing with Predictive Coding

Posted on July 16, 2012 by Hayes Hunt — No Comments ↓

By: Hayes Hunt and Jillian Thornton

The difficulty with implementing processes such as predictive coding is that the technology is so new that these methods are fairly untested in court. However, the first wave of cases discussing the propriety of predictive coding has illustrated that it is indeed going to be accepted as an appropriate discovery tool. Earlier this year, in a landmark decision, U.S. Magistrate Judge Andrew J. Peck for the Southern District of New York authorized the use of predictive coding in Da Silva Moore v. Publicis Groupe, No. 11-CV-1279, 2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. Feb. 24, 2012). Peck summarized his position, stating: “What the bar should take away from this opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.” The district court ultimately adopted Peck’s evidentiary rulings in Da Silva Moore v. Publicis Groupe, No. 11-CV-1279, 2012 U.S. Dist. LEXIS 58742 (S.D.N.Y. Apr. 26, 2012). In his opinion, Peck was careful to point out that the plaintiffs consented to the defendant’s use of predictive coding and the discovery dispute merely concerned the implementation of its use. Thus, lawyers were left to wonder what would happen if the parties did not agree to the use of predictive coding.

The same week that Peck’s ruling was affirmed, a state court judge in Virginia approved the use of predictive coding in a case over the objections of the opposing party. In Global Aerospace v. Landow Aviation, No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012), 20th Judicial Circuit Judge James Chamblin ordered that defendants could use predictive coding, despite the plaintiff’s objections that the technology was not as effective as manual review. Chamblin disagreed and ordered the predictive coding for the production of the defendant’s ESI, provided that the receiving party would still have an opportunity to question the completeness of the contents of the production or the ongoing use of predictive coding. This opinion, although limited in its direct impact in other litigation, along with Peck’s decision in Da Silva Moore, indicates willingness by the judiciary to incorporate predictive coding into e-discovery.

Predictive coding and other automated methods of e-discovery obviously have limitations. Peck, in Da Silva Moore, emphasized that his approval of predictive coding was not universal: he did not order the use of predictive coding, he stated that computer-assisted review is not required in all cases, and that he did not endorse any particular vendor or predictive coding tool. In addition, it is the responsibility of the lawyers to understand the predictive coding program and how it works so that they can demonstrate the method’s reasonableness if it is called into question. Just as with the traditional e-discovery tool of keyword searching, lawyers must engage in careful planning and sufficient quality control to ensure the accuracy of the program. Finally, lawyers should cooperate with opposing counsel and be transparent in their use and the scope of predictive coding in order to avoid unnecessary discovery disputes.

Published in The Legal Intelligencer on June 27, 2012

Hayes Hunt

Tagged with: Discovery, Litigation, Litigation Practice, Predictive Coding, Technology and Law
Posted in Litigation

Predicting the Future of Predictive Coding

Posted on July 9, 2012 by Hayes Hunt — No Comments ↓

By Hayes Hunt and Jillian R. Thornton

old file cabinets.jpg A decade ago, document review meant a small militia of lawyers sitting in a windowless warehouse surrounded by bankers’ boxes full of paper documents. Now, thanks to extreme information inflation, the bulk of document review takes place electronically. In order to keep up with the enormous volume of electronically stored information, lawyers have employed a method featuring a combination of keyword searches and manual review. Most importantly, e-discovery can be responsible for 70 to 90 percent of the client’s cost of litigation. However, recently, the universe of ESI has expanded in exponential fashion. Exabytes have devoured the smaller gigabytes in the ESI pond. What’s next? Predictive coding.

Predictive coding is being used to run algorithms that allow for computer characterization of a massive set of electronic data for a fraction of the cost of more traditional methods (i.e., a cadre of lawyers). Case law is now catching up to the technology and various judges are giving the green light for lawyers to employ predictive coding in e-discovery without running afoul of the rules. The proper use of predictive coding, especially in large-data-volume cases, provides huge benefits for lawyers and clients: Predictive coding of ESI takes much less time, saves a lot of money and is often as accurate or more accurate than manual review. Of course, predictive coding also can be problematic if, for example, privileged documents are disclosed.

A recent study by Rand Corp., which includes 57 case studies from eight large corporations, shows that the cost of e-discovery can be grouped into three main categories: collection, processing and review. Amazingly, the review phase accounted for 73 percent of the costs incurred during e-discovery. Predictive coding works to drastically reduce the number of documents that are manually reviewed by lawyers. Here’s how it works: The first step in the process is that lawyers review a small sample of documents and code those documents for relevance or privilege or subject matter. The software then studies the sample set and applies the coding principles that it has learned to a larger set of documents. Then, the lawyers review the computer-coded documents to further teach the program how to code. This program continues until the software identifies only relevant documents. After coding is finished, the software can be used to select a small, random population of documents for lawyers to perform quality-control checks. If errors are found, the lawyers code more sample documents until accuracy of the coding reaches an acceptable level. Then the review is complete. The software can reduce the documents that need to be manually reviewed from a set of 2 million, for example, to only 3,000 to 5,000 documents. Assume it takes a lawyer 60 seconds to review a one-page document and you can easily do the cost-effective math of predictive coding.

Published in The Legal Intelligencer on June 27, 2012

Hayes Hunt

Tagged with: Discovery, ESI, Litigation, Litigation Practice, Predictive Coding
Posted in Litigation

The Supreme Court’s Confrontation with Forensic Evidence: Williams v. Illinois

Posted on June 25, 2012 by Hayes Hunt — No Comments ↓

DNA #1.jpg by: Hayes Hunt and Calli Varner

On June 18, 2012, the Supreme Court came down with a fractured 5-4 decision disrupting long-standing 6th Amendment Confrontation Clause precedent as it applies to forensic evidence. Williams v. Illinois, No. 10-8505 (June 18, 2012).

The issue before the Court arose out of a rape prosecution in Chicago. Illinois police recovered the perpetrator’s DNA sample from the victim and sent the sample to a private lab in Maryland. When the DNA profile report was returned, Illinois police ran it through their database in Illinois and found a match, Sandy Williams. During Williams’ trial, the Maryland lab report was not introduced into evidence and the Maryland laboratory technicians did not testify. Prosecutors, however, presented an expert from the Illinois state lab, who testified that it was her opinion that a DNA profile generated from Williams’ sample matched the DNA profile developed by the Maryland lab. Williams was convicted.

Later, Williams claimed that the prosecution’s failure to offer the Maryland laboratory technician for him to cross-examine was a violation of his right to confrontation. The Illinois Supreme Court disagreed and upheld his conviction.

DNA strand.jpg The Sixth Amendment Confrontation Clause guarantees the accused the right “to be confronted with the witnesses against him.” In 2004, the Supreme Court held in Crawford v. Washington, that the Clause prohibits prosecutors from introducing out-of-court testimonial statements without putting the declarant on the stand. 541 U.S. 36 (2004). In 2009, in Melendez-Diaz v. Massachusetts, the Court re-affirmed that decision, holding that forensic reports that certify incriminating results are testimonial. 557 U.S. 305 (2009). Most recently, in Bullcoming v. New Mexico, the Court made clear that when the prosecution introduces forensic reports, it must call the actual author of the report to the stand, rather than a supervisor or other surrogate witness. 564 U.S. __ (2011).

Bullcoming, however, left open the question whether prosecutors can introduce an analyst’s testimonial forensic report through a testifying expert witness. Williams became the perfect opportunity for the Court to determine that issue.

Justice Alito, writing the plurality opinion, ruled that Williams did not have a right to confront the DNA report’s creator because the DNA report was not testimonial. The four plurality justices reasoned that the report was not testimonial because it was the expert’s testimony, rather than the report, that was offered for the truth of the matter asserted. The report, rather, was merely a premise on which the expert’s testimony was based. Justice Kagan, along with three other dissenting justices, rejected the plurality’s finding that the report was not offered for the truth of the matter asserted. As such, the dissent argued, the report was testimonial and William’s constitutional right to confrontation was violated.

Justice Thomas, in his concurring opinion, came down the middle of the road. Thomas agreed with the plurality that the report was not testimonial, but on a different basis. According to Thomas, the report was not testimonial because it was not sufficiently formal or certified. On the other hand, Thomas, agreeing with the dissent, rejected the plurality’s decision that the report was not offered for the truth of the matter asserted.

So how, in practical terms, are lower courts to interpret Williams?

As Justice Thomas made clear — formal, certified forensic reports are subject to the Confrontation Clause and the accused has a constitutional right to cross-examine the report’s creator. This means that blood alcohol, fingerprint, drug, ballistics, and related reports that are incriminating on their face will continue to be deemed testimonial and, as a result, inadmissible without permitting the accused to cross-examine their author.

DNA #2.jpg According to the four-member plurality, however, reports that are subsidiary or the internal work product leading up to the formal report are not testimonial, and therefore, not subject to the Confrontation Clause. These reports are far enough removed and the accused does not automatically have the right to cross-examine their authors. If that is true, what probative value do these reports have? They are irrelevant. The plurality, it seems, put a great deal of confidence in the credibility and reliability of forensic and scientific testing.

As Justice Kagan pointed out, errors can potentially happen during the early stages of the creation of a report. The Confrontation Clause, Kagan wrote, is “a mechanism for catching such errors” demonstrating “the genius of an 18th-century device as applied to 21st-century evidence.”

The Court, however, did not offer this decision without warnings to prosecutors. Justice Thomas cautioned that attempts to make forensic reports less formal in order to evade the Confrontation Clause would be in vain. In his opinion, he established that the Clause “reaches the use of technically informal statements when used to evade the formalized process.” By the same token, the four-member dissent, plus Thomas, made it clear to prosecutors that they cannot evade the Confrontation Clause simply by introducing testimonial evidence through the testimony of an expert and claiming it is not offered for the truth of the matter asserted.

While Supreme Court caveats are valuable, concise evidentiary guidelines and precedents are much less confrontational.

Hayes Hunt

Tagged with: 6th Amendment, Confrontation Clause, Cross Examination, DNA testing, Evidence, Expert Testimony, SCOTUS
Posted in Trial

Juror Misconduct & Bias – Social Media Investigation

Posted on June 18, 2012 by Hayes Hunt — No Comments ↓

by: Hayes Hunt and Jonathan A. Cavalier

Use of social media to explore the histories and potential biases of a jury pool is relatively new, but it is rapidly gaining in popularity. While voir dire can be an effective tool for weeding out obviously biased jurors (and those who do not want to serve), it can be difficult to get complete, detailed and truthful answers from all prospective jurors.

Social media can help. In jurisdictions where a list of prospective jurors is provided to counsel in advance, social media screening can be performed in advance and in detail, can help expose juror bias, and can help craft voir dire questions to eliminate undesirable jurors without wasting peremptory challenges. Social media can reveal work history, political affiliation, charitable activity, personal and professional relationships and affiliations, purchasing habits, hobbies, socioeconomic status and many other traits that may impact a juror’s way of thinking about a case.

If the names of prospective jurors are not made available in advance, using social media can be more difficult. Certainly, attorneys cannot examine jurors’ Facebook pages during active voir dire of the panel. However, counsel should consider having another attorney perform social media research on jurors during questioning. Although time constraints will prevent the attorneys from probing as wide or as deep as they could if they were able to do so in advance, even a shallow investigation might weed out a problematic juror or two who might have otherwise made it through.

After voir dire is complete and a jury is impaneled, counsel should investigate the jury more thoroughly. As noted above, the jurors’ social media pages may provide a wealth of information that will give insight into how they will think about a case and deliberate the evidence. Counsel can use this information to better craft their arguments and examinations to specifically address the tendencies of individual jurors.

Counsel should also monitor jurors’ social media use during trial to see whether jurors are improperly discussing the case. Most judges now give an instruction to the jury at the time they are impaneled that they are not to discuss the case on their social media. Some judges require juries to pledge or take an oath that they will obey the instruction. It now seems that, nearly every week, a new story emerges about a juror who ignored the instruction, discussed the case and either caused a mistrial or was dismissed from the jury. Counsel should know if the jury is misbehaving.

Finally, what if you’ve lost the trial, and you need a new one? Social media might be able to help. Perhaps a juror, after finding your company liable, revealed on Facebook that she never would have agreed with the verdict if another juror hadn’t told her that your company just fired 500 people in her hometown. Perhaps a juror had discussed the case and solicited input from his many friends on Facebook, who encouraged him to find for your opponent. Perhaps a juror lied during voir dire and concealed information that clearly reveals a significant bias against your company. Perhaps a juror concealed relationships with parties or witnesses involved in the case. While judges are loath to disturb a verdict on allegations of juror misconduct, most will entertain and consider post-trial motions involving scenarios like those presented above.

Use of social media during trial can provide information that has previously never been available to counsel. As data management and analytics increase in capacity and ability, its use will only increase. If your opponent isn’t using it for the reasons listed above, it can provide you with a great advantage. If your opponent is using it, shouldn’t you be using it, too? •

Top Social Media Sites

Of the countless social media platforms currently in existence, the following are some of today’s most popular, and consequently, most useful sites.

•Facebook: The undisputed champion as the largest of the social networks, this site allows users to post thoughts, pictures and videos and to cross-network with other users via the “friend” function.

• Twitter: The second-largest social network with more than 500 million accounts, this service allows users to share thoughts in 140 character bursts, along with links, pictures and video clips.

• Pinterest: Billed as a virtual pinboard and currently recognized as the third-most popular platform, Pinterest allows its users to tag and organize various content from around the Web and display it on their own pages.

• LinkedIn: A sort of Facebook for professionals, this site allows users to post resumes and business affiliations while connecting with other users.

• Tumblr: A blog-hosting platform that allows users to create and personalize their own blogs.

• Google Plus: Google’s answer to Facebook, this relatively new platform has had some difficulty attracting users, but with Google behind it, it is likely around for the long haul.

Published in The Legal Intelligencer on May 16, 2012.

Hayes Hunt

Tagged with: Juror Misconduct, Juror Questions, Social Media, Trial, Trial Practice
Posted in Trial

Uses of Social Media for Corporate Counsel – Investigating & Defending Claims

Posted on June 11, 2012 by Hayes Hunt — No Comments ↓

by: Hayes Hunt and Jonathan A. Cavalier

By now, most litigators have bumped up against at least one or two social media issues in their practices. Social media has become a hot-button discovery issue and a potential source of valuable information in cases from personal injury to employment discrimination. Often, social media discovery requests are now included as a matter of course in individual plaintiff cases. Juries are using social media to broadcast, often improperly, about their cases while lawyers scour social media during voir dire looking for juror bias. Companies now frequently use social media to vet applicants, with some even going so far as to force applicants to permit company employees to access their various social media sites.

With Facebook expected to hit the 1 billion user mark in August and more than half of Americans using at least one social media platform, the importance of social media in business and everyday life will only increase. In-house counsel have no real choice but to become familiar with the various social media platforms, the issues these platforms create for their companies, and the pitfalls and advantages they present in management and litigation.

To that end, here is a way that counsel can use social media to their advantage.

Investigating and Defending Claims

Social media websites can provide extremely helpful evidence to employers in both investigating and defending claims of harassment brought by employees. For example, when the employer receives a claim of co-worker harassment, it should consider reviewing the social media of the alleged harasser as part of its investigation. If the social media provides evidence that the harassment did in fact occur (which it can and often does), the employer can use that information to discipline the employee as part of its remedial actions in an effort to ensure that the harassment ends. Whether or not evidence of harassment is found, the fact that the employer used this avenue of investigation can help, in the event that the employee brings suit, in establishing that the employer took prompt and effective remedial action.

An investigation of a claimant’s social media can also provide very helpful evidence in defending against such a claim. For example, if the alleged harasser and victim are “friends” on Facebook, their communications can often reveal whether any allegedly harassing conduct was, in actuality, welcomed and reciprocated. Social media can also provide evidence useful in defending against damages resulting from claims of emotional distress, as users will often post about traumatic events that may have predated the alleged harassment.

Often, an employer will not be able to access all of a claimant’s social media freely. Most users keep some or all of their social media postings private and require people to be invited or “friended” before they can view all of the postings. In certain cases, however, a plaintiff can be compelled to produce or provide access to information that has been kept private via discovery.

At this time, most judges are reluctant to permit wide-ranging discovery into a litigant’s social media. Citing privacy concerns, many judges consider such information nondiscoverable without a showing of relevancy by the party seeking the information. So how can this information be obtained?

First, the party seeking the information should ask pertinent questions during the deposition process to determine if the information may be relevant. Ask whether the party has ever discussed the case, injuries, facts or parties online or posted about them on social media. Ask whether the party has discussed other jobs that might have a bearing on damages. Ask if the party has connected with any other people involved in the case. Probing a litigant’s social media profile in depositions will often provide the answers necessary to access private postings.

If a party is unable to gain any useful admissions via deposition, but still believes that the opposition’s social media would provide relevant information, the party should consider proposing a compromise by which the information is provided on an attorneys’-eyes-only basis or reviewed in camera for relevance before being produced. Such an arrangement can help alleviate a judge’s concerns about the infringement on the litigant’s privacy.

Published in The Legal Intelligencer on May 16, 2012.

Hayes Hunt

Tagged with: Evidence, Social Media Law, Witness Investigation
Posted in Social Media & Law

Roger Clemens Trial – Jurors Question Witnesses

Posted on May 29, 2012 by Hayes Hunt — No Comments ↓

question key.jpg by Hayes Hunt and Brian Kint

Jurors in Roger Clemens’ perjury case submitted 29 questions that they want to ask the prosecution’s chief witness, Brian McNamee. Among the questions: “Why should we believe you when you have shown so many inconsistencies with your testimonies?” U.S. District Judge Reggie Walton will now have to decide which questions he will allow.

The Federal Rules of Evidence do not explicitly allow or forbid jurors from submitting questions to the court. Rule 611(a) Federal courts have interpreted this rule to leave to the discretion of the trial judge whether to allow questions from jurors. See, e.g. DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 515 (4th Cir. 1985). Why does the practice remain so rare?

The advantages of allowing jurors to submit questions are apparent. It helps jurors get a fuller comprehension of the facts, gives them the opportunity to clarify testimony, and engages them in a process to which they are a critical and vital part. Frankly, it can resolve problems with lawyers asking bad questions! Certainly, the practice should keep more jurors attentive and awake during trial. Although, that has not worked in the Clemens trial as the jurors continue to snooze and yawn during testimony. At the end of the day, say proponents, juror questions during trial leads to more fully reasoned and just verdicts.

On the other hand, allowing jurors to ask witnesses questions, promotes jurors to act as advocates not fact finders. Jurors may place too much weight on their own questions, ignore the evidence and simply confirm their preconceived notions. Jurors may also become understandably agitated when, as Judge Walton has done, they are told they are not entitled to an answer. In these ways, allowing juror questions may actually compromise the adversarial process. question mark.jpg

In any event, allowing jurors to submit questions mid-trial gives prosecutors and defendants alike unique insight into how the jury perceives their witnesses and understands the evidence. Counsel can use these insights to shift tactics to address juror concern. Also, this window into the jurors’ thinking may promote resolution.

In the Clemens trial, the questions submitted showed that several jurors question the credibility of Clemens’ former personal trainer, Brian McNamee. After three days of McNamee’s testimony, maybe the jurors are merely stating the obvious to the Court and the lawyers. One thing is clear, juror questions during trial and deliberations will always have lawyers playing guessing games.

There is no doubt that the prosecution and defense will answer the question and explain why McNamee should or should not be believed.

Hayes Hunt

Tagged with: Brian McNamee, Juror Questions, Roger Clemens Trial
Posted in Trial

Social Media – Screening at Work and Job Interview

Posted on May 17, 2012 by Hayes Hunt — No Comments ↓

by: Hayes Hunt and Jonathan R. Cavalier

Companies now frequently use social media to vet applicants, with some even going so far as to force applicants to permit company employees to access their various social media sites.

With Facebook expected to hit the 1 billion user mark in August and more than half of Americans using at least one social media platform, the importance of social media in business and everyday life will only increase. Lawyers have no choice but to become familiar with the various social media platforms, the issues these platforms create for their companies, and the pitfalls and advantages they present in management and litigation.

Screening Employees

Use of social media as an employee screening tool has become much more prevalent over the past year. Much like a background check, social media can provide a wealth of information about potential hires that typical interviews won’t reveal. For certain jobs, this information can prove highly important, and if performed properly, social media screening can prevent the company from facing a potentially embarrassing situation in the future. So how can employers use social media to effectively (and legally) screen employees?

To effectively screen employees, employers should use social media screening at the final stages of the interview process, and only after an in-person interview has been conducted. Social media can reveal characteristics about job candidates, such as age, sex, race, sexual preference, family status, etc., that would normally be off-limits in a typical interview. The employer must take care to avoid creating a perception that these characteristics are factoring into hiring decisions. In some cases, employers would be well advised to use a third party to perform social media searches and to report anything job-related to the employer while screening any nonrelevant information.

What should the employer be looking for that might bear on the worthiness of a job candidate? For one, the company should consider how the potential employee presents himself or herself to the public. What type of judgment does the candidate show? More importantly, has the candidate revealed information about prior jobs or posted potentially confidential information? Does he or she speak negatively about prior employees or employers? Does he interact with people in a way that makes him look like a sexual harassment suit waiting to happen? All of these factors, and many others, can legitimately be considered by the employer.

Should the employer demand that the interviewee or employee give up his social media passwords or be required to “friend” a supervisor? While such demands are not currently illegal in Pennsylvania, the trend is certainly moving in that direction. Many states are considering laws that would make it illegal to force an employee to allow his or her employer to view his or her private social media pages. Last Wednesday, legislation was introduced in both houses of Congress that would make it illegal for employers to force employees to give up passwords to a wide variety of social media sites.

The better practice is to have clear social media policies that spell out what employees can and cannot do on social media, and advise the employees that if their social media presence reflects poorly on the company or on their job, they can be subject to discipline or termination.

Published in The Legal Intelligencer on May 16, 2012

Hayes Hunt

Tagged with: Employer Duty, Hayes Hunt, Job Interview, Jon Cavalier, Screening Employees, Social Media, Social Media Law
Posted in Social Media & Law

Andy Pettitte’s “50-50” Testimony – Roger Clemens’ Trial

Posted on May 15, 2012 by Hayes Hunt — No Comments ↓

baseball injection.jpg by: Hayes Hunt and Brian Kint

Federal prosecutors in Roger Clemens’ perjury trial may have made a costly error after Andy Pettitte testified that he was “50-50” about a conversation he had with Clemens regarding his use of human growth hormone.

Under questioning from prosecutors, Pettitte testified that Clemens had told him he had used HGH. He later testified that he might have misunderstood Clemens, and Clemens actually might have said it was his wife who had used the substance. When asked on cross-examination if he was “50-50” that he had misunderstood Clemens, Pettitte replied, “I’d say that’s fair.”

In light of Pettitte’s “50-50” comment, the defense moved to strike the portion of his testimony regarding his conversation with Clemens as insufficiently definitive – essentially that it is too uncertain to prove anything. Pettitte’s testimony is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. (FRE 401)

Here, the fact of consequence is Clemens’ use of HGH. Therefore, the substance of the conversation would be relevant and admissible if Clemens had admitted that he used HGH himself, but irrelevant if he was talking about his wife’s HGH use. In other words, relevance – and thus admissibility – turns on the fact of whose HGH use Clemens discussed with Pettitte.

Federal Rule of Evidence 104(b) provides that when the relevancy of evidence depends on whether a fact exists, sufficient proof must be introduced to support a finding that the fact does exist. When determining threshold evidentiary issues of this sort, courts apply a more likely than not standard. Pettitte’s “50-50” testimony only makes it as likely as not that Clemens discussed his own HGH use. Therefore, it is not sufficient proof of the fact needed to make the testimony relevant and admissible.

The prosecution’s best hope may be to convince the court that Pettitte’s statements on direct examination that Clemens had told him he used HGH were sufficient proof of the substance of the conversation to make his testimony admissible. Pettitte’s subsequent uncertainty would go only to the weight of his testimony. Under this theory, the jury could consider the evidence and be free to believe or not believe Pettitte as it saw fit.

In any event, the prosecution could have easily addressed the situation to reverse or reduce the damage and avoid an evidentiary fight with the defense. As District Court Judge Walton explained, the prosecution needed only to ask Pettitte what was his current memory of his conversation with Clemens.

If Pettitte had responded that his current memory was that Clemens told him he had used HGH, then the damage is reversed. But what if Pettitte had said his current memory was that Clemens said his wife had used HGH? Luckily for the prosecution, Federal Rule of Evidence 607 allows a party to impeach its own witness. Here, the prosecution would have ready means to impeach, because Pettitte had stated under oath in a deposition for the U.S. House of Representatives Committee on Oversight and Government Reform, “I remember a conversation in 1999 where Roger [Clemens] told me that he had taken HGH.” The prosecution could have used this inconsistent statement to impeach Pettitte’s credibility had he stated that he believed Clemens had told him his wife had used HGH.

Of course, the prosecution could have dealt with Pettitte’s misgivings and addressed them on direct examination. A simple question about Pettitte’s current memory prefaced with a statement such as, “I understand you are trying to remember a conversation that occurred 12 or 13 years ago, but . . .” would have reduced the adverse impact of cross examination while building the prosecution’s credibility with the jury.

Instead, the prosecution is left with the prospect of an adverse ruling turning this trial into a whole new ballgame.

Update From the Sidebar: Judge Walton has ruled that Pettitte’s testimony can stand, despite its uncertainty. This ruling means that the jury can infer what it may from Pettitte’s testimony. Of course, Pettitte’s “50-50” comment could lead the jury to infer that Pettitte misremembered the conversation and Clemens never made the HGH comment. On the other hand, the jury could infer that Clemens indeed told Pettitte the he used HGH. Leaving that second path of inference open could wind up being an important victory for the prosecution.

Hayes Hunt

Tagged with: Andy Pettitte, Federal Rule of Evidence 607, FRE 401, HGH, Roger Clemens
Posted in Trial