The Proper Method for Lawyers to “Follow” Jurors and Witnesses

Twitter FollowTwitter continues to be a significant source of evidence in litigation and corporate investigation matters.  A legal database search of published opinions reveals several dozen known cases recently involving Twitter-based evidence. See, e.g., Agence France Presse v. Morel, (Dist. Court, SD NY 2011)  (Pictures posted to Twitter spawn copyright infringement claims); PH(X) Glass, LLC v. Clarke, (Dist. Court, ND Calif. 2011) (Twitter postings allegedly violated injunction in patent litigation). In addition to providing key evidence in virtually every type of litigation matter, lawyers are increasingly using Twitter to investigate and monitor potential and empanelled jurors. As we addressed in our recent webinar with Ralph Losey of Jackson Lewis, this type of monitoring activity can lead to serious attorney ethics violations if improperly performed.

For instance, if an attorney were to merely “follow” a potential juror on Twitter, the social media service will automatically email the juror notifying them that they are being “followed” by that attorney under that attorney’s account name. According to several recent bar association opinions specifically addressing such a factual scenario, this is problematic and can lead to disqualification and even potential disciplinary action. (See e.g. New York County Law Association Formal Opinion No. 743, May 18, 2011). Proxies hired by attorneys, including eDiscovery service providers, investigators and jury consultants are subject to these restrictions, which can also apply to social media communications with witnesses or opposing parties who are represented by counsel.

For this reason, X1 Social Discovery features a specialized “public follow” feature that enables access to all the past Tweets of a specified user (up to 3200 past tweets) and any new Tweets in real-time without generating a formal “follow” request with the resulting problematic communication. This feature works within the public APIs provided by Twitter for third party developers. And as Twitter has a full license to distribute all Tweets and make them publically available per their terms and conditions, we believe this is the most proper method to obtain this information.

To illustrate this important feature, we have made this 1 minute video clip available. These legal ethics rules concerning indirect social media communications underscores the importance of employing best practices technology to search and collect social media evidence for investigative and eDiscovery purposes.  Collecting evidence in a manner that prevents, or at minimum, does not require that attorneys and their proxies directly or indirectly communicate with the subjects from whom they are collecting social media evidence is a core requirement for solutions that truly address investigative and eDiscovery requirements for social media. In addition to collecting and authenticating social media evidence in a proper manner, X1 Discovery provides fast and comprehensive searching of the data in a manner unmatched by any other technology. All for $945 per year, which is a very small price compared to the direct and indirect costs associated with potentially running afoul of legal ethics rules.