Kevin Riordan: Personal info on Web can put legal fate on line

Posted: July 17, 2011

John B. Kearney likens posting a potentially sensitive bit of personal information on Facebook to getting a tattoo.

"There it is," the Cherry Hill lawyer says. "Forever."

A partner at Ballard Spahr who's practiced law for more than 30 years, Kearney was a speaker at the recent Camden County Bar Association seminar about social media and "electronic discovery."

We're not talking here about rogue tabloid reporters hacking private voice mail. Discovery is a time-honored legal process in which attorneys gather the information they need to represent their clients and present their cases.

The process once primarily involved paper; electronic discovery takes in the various, and increasingly ubiquitous, digital formats.

But the term also can serve more broadly as a digital-age description of what we enable when we post on Facebook.

Or write an e-mail or use an iPhone or E-ZPass - or, for that matter, swipe a security card.

"People don't realize how many different places information is stored," Kearney says during an interview at his office.

Devices making our lives more convenient can also make details about our lives more accessible, like virtual fingerprints and footprints.

And people, including those serving on juries - or being heard by them - often don't consider the potential consequences of too much information.

"There have been many mistrials across the country [because of] Facebook pages of jurors, or family members of jurors, talking about the trial," consultant Ann Greeley says during a telephone interview.

A psychologist who works for DecisionQuest, a nationwide consulting firm, Greeley served with Kearney on the June 22 panel at Tavistock Country Club.

Jury consultants such as Greeley help attorneys by combing through publicly available information about prospective jurors. This includes the sort of material displayed on Facebook home pages, visible to anyone browsing the Web. More detailed biographical information is only for "friends" approved by the page owner.

"We are not allowed to try to 'friend' somebody who's a potential juror" to get access to their additional information, Greeley says.

"There's nothing that says a lawyer can't access the public information. . . . It's as if you wrote something on a wall, and we saw it," says Kearney. "What you can't do is misrepresent who you are, or who you're representing, in order to gain access to that private area of Facebook."

Material available to anyone who browses Facebook and other social-media sites can be revealing, too. Someone's public postings may suggest "leanings . . . in terms of experiences or views of issues that may make them favor or not favor your party," Greeley says.

With juries in the news because of the surprise verdict in the Casey Anthony trial, Kearney and Greeley note that the young mother's defense team describes its strategy as "driven" by social media. Members of Anthony's team pored over blogs, scanned chat rooms, and eyed such things as Facebook "fan" pages for comments about their client.

Rather than have people who reflect the makeup of the actual jury sit in court and report their impressions - a practice known as a "shadow jury" - the Anthony defense used what could be described as a virtual focus group.

But even continuous televised trial coverage can't convey the fullness of what a jury experiences in the courtroom, Kearney says.

If you're like me, you're probably not staying awake at night worrying you might not be able to get on a jury soon. But Greeley and Kearney suggest everyone exercise commonsense caution about what to reveal online.

"Google your name, and drill down a little bit. You'll be astonished what you can find," Kearney says.

"The advice I give to my kids is: When you put information about you out there, make sure you want it to be in front of the public," he adds. "It's different from talking to a friend."


Contact Kevin Riordan at 856-779-3845, kriordan@phillynews.com, or @inqkriordan on Twitter. Read the metro columnists' blog, "Blinq," at http://www.philly.com/blinq

 

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