Twenty-six years ago, Ferris Bueller looked straight into the camera and said: “If you had access to a car like this, would you take it back right away? Neither would I.” Once the car is out of the garage, it is out. And so it goes with social media (yes folks, the pop culture stretch du jour). Now that everyone has a plethora of social media platforms on which to communicate anything in real time, everyone seems to be taking advantage of it. Until the car crashes.
An interesting decision was just issued by the California Court of Appeal (Third Appellate District) in Juror Number One v. The Superior Court of Sacramento County, which shows that even trial jurors may not be immune to a judge’s ire over social media postings. There, the plaintiff juror had allegedly violated the court’s earlier admonition by posting trial-related information on his Facebook account (including certain evidence presented at trial) while the trial was in progress. The court conducted a hearing and ordered the juror to consent to having Facebook release all of the juror’s Facebook posts from the trial. Of note, the posts at issue were not those made available to the public at large, but to a “select group of Facebook friends.”
The juror took another day off, this time to visit the courthouse as a plaintiff, when he sued to bar the enforcement of the court’s order. The juror argued that the order violated the federal Stored Communications Act (“SCA”), the United States Constitution (4th and 5th Amendments), and state and federal rights to privacy. The Court of Appeal, however, denied the juror’s claims. Rejecting the juror’s SCA argument out of hand, the court noted:
“But even assuming Juror Number One’s Facebook postings are protected by the SCA, that protection applies only as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information. Here, the compulsion is on Juror Number One, not Facebook. . . . If the court can compel Juror Number One to produce the information, it can likewise compel Juror Number One to consent to the disclosure by Facebook. The SCA has no bearing on this issue.”
Next, the court rejected the juror’s 4th and 5th Amendment claims, holding that the claims were speculative and “without argument or legal support.” And, finally, with regard to the juror’s privacy claims, the court found that the need to remedy potential juror misconduct outweighed any privacy rights that might even exist:
“At any rate, protection against disclosure of personal identifying information that might be used by a convicted defendant to contact or harass a juror is not the same thing as protection of a juror’s communications, which themselves are misconduct. But even if Juror Number One has a privacy interest in his Facebook posts, that interest is not absolute. It must be balanced against the rights of real parties in interest to a fair trial, which rights may be implicated by juror misconduct. . . . The present matter no longer involves a claim of potential misconduct. Misconduct has been established without question. The only remaining issue is whether the misconduct was prejudicial. This cannot be determined without looking at the Facebook posts.”
Employer Take Away: What should you as an employer take away from this development?
Social media may be ubiquitous, but there are limits to when and how it can be used. New rules continue to be developed in this area almost daily, whether it involves the use of social media by jurors, lawyers, or employers and employees. How courts (and legislatures) will continue to address monitoring of and access to electronic and social media communications bears watching.
In other words, your company needs to stay abreast of what information it can affirmatively/strategically obtain and use in litigation against a former employee, and the extent to which the company can attempt to gain access to that information while the employee is still employed. There are strict rules of the road involving when you can take your social media hot wheels for a spin. So keep your eyes open. As Ferris aptly concluded: “Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.”