Twittering Juror Has ‘Appeal’…of $12.6M

Defendants appeal $12.6M verdict, allege juror sent ‘tweets’ during trial that show bias

A building materials company and its owner have appealed a $12.6 million verdict against them, alleging that a juror posted messages on Twitter.com during the trial that show he’s biased against them.

The motion seeking a new trial was filed Thursday on behalf of Russell Wright and his company, Stoam Holdings. It claims juror Johnathan Powell sent eight messages — or “tweets” — to the micro-blogging Web site via his cellular phone. According to the motion, one posting listed the company’s Web address and read in part: “oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.” Another described what “Juror Jonathan” did today: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” You can view Johnathan’s twiittering at this LINK.

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In his motion, filed in Washington County Circuit Court in Fayetteville, lawyer Drew Ledbetter wrote that the messages show Powell “was predisposed toward giving a verdict that would impress his audience.” Powell, of Fayetteville, told The Associated Press on Friday that Wright and his lawyers are “just grasping at straws at this point.”

“I didn’t really do anything wrong, so it’s kind of crazy that they’re trying to use this to get the case thrown out,” Powell said. “I understand where they’re coming from, they lost over $12 million.”

The jury awarded the money Feb. 26 to Mark Deihl and William Nystrom, two northwest Arkansas men who invested in Wright’s company. The company sold a building material called Stoam that it claims combines the insulation qualities of foam with the strength of steel. Deihl’s attorney, Greg Brown, called the venture “nothing more than a Ponzi scheme.”

Brown said he doubts a new trial will be granted. He said Arkansas law requires defendants to prove that outside information entered the jury room and corrupted a verdict — not that information from the jury room made its way out.

Powell, a 29-year-old manager at a Wal-Mart photo lab, said he tried to talk to the judge Friday about what happened, but was turned away. He seemed a little shocked at what kind of power the 140-character messages on Twitter can carry. “I’m kind of surprised so many people have contacted me,” he said.

SOURCE: http://www.cellular-news.com/story/36506.php?source=rss

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MySpace – MyEmails – MyPrivacy?

A married woman in Nevada sued her employer, claiming that he sent her inappropriate emails and gave her unwanted sexual attention. During the lawsuit, the employer’s lawyer discovered that the woman had set up a MySpace account where she pretended to be single. The employer’s lawyer wanted to see her Myspace emails; if this woman was looking for extra-marital affairs on Myspace, this might speak to her credibility. The judge refused.

In a decision of the Nevada District Court, Mackelprang v. Fidelity National Title Agency of Nevada Inc, a married plaintiff alleged that she was sexually harassed by senior members of her company, and that this led to her constructive dismissal. She alleged, among other things, that a vice president of her company sent sexually explicit emails to her office computer a weekly basis. During the course of litigation, the defendant’s lawyer discovered that, a few months after leaving the defendant’s employ, the plaintiff had opened two Myspace accounts; in one of the accounts, the plaintiff identified herself as a single 39 year old female who did not want children, and in another account, she identified herself as a married woman with six children whom she loved.

cartoon archive at funnytimes.com

The defendant’s lawyer obtained a subpoena directing Myspace to produce all records for those accounts, including private email exchanges between the plaintiff and others. In response to the subpoena, Myspace produced the “public” information regarding the accounts, but refused to produce private email messages in the absence of a search warrant or a letter of consent to production by the owner of the account. The plaintiff refused to consent to the obtaining of the release of the private messages on the grounds that the information sought by the defendants were irrelevant to the lawsuit and improperly invaded her privacy. She contended that the defendants were on a “fishing expedition” and that they had no relevant basis for discovering the private email messages on either account.

The defendant’s lawyer brought a motion seeking to compel the plaintiff to consent to production of the emails. The defendant’s pointed to the usual circumstances of the plaintiff’s two Myspace accounts as creating an inference that the plaintiff was using Myspace email to facilitate the same types of electronic and physical relationships that she had characterized as sexual harassment in her lawsuit. If the plaintiff had, in fact, been voluntarily pursuing extra-marital relationships through Myspace, then this information could be used to impeach her credibility and rebut her sexual harassment claims. The emails could telling as to whether the plaintiff had actually suffered emotional distress as a result of the harassment, and might contain admissions relevant to the case.

The Court disagreed with the defendant and refused to order production of the emails. The defendant had nothing more than a suspicion and speculation that the plaintiff may have engaged in sexually related email communications on Myspace. There was an insufficient connection between the accounts and the workplace to make her private emails relevant. The Court noted:

Ordering plaintiff to execute the consent and authorization form for release of all of the private email on Plaintiff’s Myspace.com internet accounts would allow Defendants to cast too wide a net for any information that might be relevant and discoverable. It would, of course, permit Defendants to also obtain irrelevant information, including possibly sexually explicit or sexually promiscuous email communications between Plaintiff and third persons, which are not relevant, admissible or discoverable.

The Nevada District Court opined that, although it was theoretically possible that emails on the Myspace account might contain relevant information, the defendant should have limited the request to the production of relevant email communications. The determination of whether certain email communications were relevant could be properly ascertained through the discovery process.

No Canadian case to date has considered a request for the production of Myspace or Facebook emails. It seems likely that Courts will treat these emails differently than the other information on a social network profile; even a “private” Myspace profile is viewable by all a user’s “friends” whereas email is not; consequently, a Court may not be able to infer from the nature of the social network service either the intent to make public, or the likely existence of, relevant email communication. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Myspace or Facebook email communications. It also remains to been seen whether evidence contained in a profile itself could give rise to a sufficiently reasonable inference that that email communications are relevant.  For example, if relevant postings on a Facebook wall made express reference to email communications, this might be sufficient to convince a Canadian court to order disclosure, notwithstanding the expectation of privacy surrounding such communications.