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Examiner
  • Ken Garten: When the courts meet social media

  • The proliferation of electronic technology is impacting the way the justice system does business.

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  • The proliferation of electronic technology is impacting the way the justice system does business.
    Several years ago, one of the standard instructions given to jurors by judges in every civil trial in the State of Missouri was amended to add: “You are not permitted to communicate, use a cell phone, record, photograph, video, email, blog, tweet, text, or post any issue in this case to any other person or to the Internet, ‘facebook’, ‘myspace’, ‘twitter’, or any other personal or public web site during the course of this trial…..”
    And just last week, the Missouri Court of Appeals in St. Louis heard the appeal of a man convicted by a jury of multiple counts of statutory rape, statutory sodomy, and child molestation, who complained on appeal that his right to a fair trial was denied because one of the jurors failed to reveal during jury selection that he was Facebook friends with the victim’s mother.
    The Court of Appeals noted that the juror in question did acknowledge during jury selection that he and the victim’s mother had gone to high school together, and had a passing acquaintance but nothing more. And so, the Court of Appeals held, the failure to specify that they were Facebook friends did not amount to juror non-disclosure to justify a new trial.
    One of the pre-eminent themes in a recent continuing education seminar I attended was that, when representing a party in a civil lawsuit where there are claims of injury, damage, discrimination, dissolution of marriage, or the like, you might be able to get a lot of useful information about the other side (or perhaps see damaging information about your client) by checking their social media sites.
    In fact, it was advised, one of the first things you should do is check out the people on the other side of the case on Facebook, and check out your own client too, for that matter. Good advice to be heeded by the sneaky, the cautious and the wary.
    Email communications are also oftentimes fair game for discovery in civil lawsuits, and must be produced like any other document upon request.
    This point was made crystal clear in a recent ruling by a Clay County Circuit Court judge in a civil lawsuit brought by a former superintendent against the Liberty Public Schools.
    In its ruling, the court determined that the Liberty Public Schools had failed in its obligation to obtain and produce emails between current and former school board members that had been requested to be produced by the former superintendent’s lawyers, including emails sent through the board members’ personal email accounts.
    In a 22-page order, the court concluded that the school district had shown a pattern of “continued, willful non-compliance” with many aspects of the court’s prior orders directing it to comply with its discovery obligations to search for and produce copies of emails among board members, and issued the severest of available sanctions against the school district by striking its pleadings, so as to allow the plaintiff to win the lawsuit by default.
    Page 2 of 2 - Now that the school district’s pleadings have been struck, the court has set a hearing to determine the plaintiff’s damages to be awarded, and has also order the school district to pay the plaintiff’s attorney fees and costs.
    Ouch!
    Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com
     

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