The Innovation of Litigation.

Are you collecting your jurors’ social media data? How and why you do it may be an issue (Part 1)

No one wants to be the next Cambridge Analytics–what do litigators need to be concerned with re: scraping social media for juicy trial strategy tidbits? This is part one of a two-part series that discusses issues in collecting a juror’s social media data.

Beyond e-Discovery, both litigators and jury consultants can and have used social media posts to discern the thoughts of quiet or evasive jurors, tailor subsequent litigation strategies, refine opening and closing statements, and unearth juror misconduct (which has resulted in numerous mistrials).

But in light of the Cambridge Analytica scandal and pending litigation between LinkedIn and tech-based HR consulting company, hiQ Labs (hiQ), are there limitations regarding your collection and methods of collecting your jurors’ social media data?

Even though the collection of juror social media data is not a concern at the moment, this series raises some issues that you should consider before collecting and using juror information. Part 1 of this series focuses on the Facebook and Cambridge Analytica Scandal. Part 2 of this series focuses on the controversy between LinkedIn and hiQ.

Facebook and Cambridge Analytica scandal

The Facebook and Cambridge Analytica scandal rocked the world. It raised issues regarding how the big tech industry can utilize public data mined from social media platforms.

Facebook disclosed that 87 million Facebook users’ data may have been collected and analyzed via an app-based online survey that Facebook authorized. Anyone who took the survey allowed the app to access their Facebook data as well as the data of all of their Facebook friends.

The data collected by the app was then shared with Cambridge Analytica. Cambridge Analytica used the data to generate targeted ads during the 2016 U.S. election.

As a result of this scandal, the public was up in arms, with calls to #deletefacebook and to create stricter data privacy laws. Some states, such as California, have already proposed legislation that would provide oversight over big tech industries’ collection and use of data.

Why the Facebook and Cambridge Analytica scandal matters

While most people are focusing their ire on big tech firms, any company or individual who mines data should be mindful of the current public discourse and understand that they can also be held accountable for how they collect and use data. This sentiment was echoed by Ken Grady, a thought leader in legal innovation:

While Ken advises that lawyers should know their clients’ business, lawyers should also know their own.

As the legal industry adopts AI and data analytics to innovate its business, attorneys will want to use this technology to create processes that are more efficient across all legal practices, including litigation. And since litigation encompasses juror evaluation and selection, it is possible that data analytics platforms adopted by the legal industry will leverage jurors’ social media information to create better comprehensive litigation strategies.

How these data analytics platforms obtain juror’s social media data is obviously at issue. Can litigators or litigation vendors, either manually or automatically, collect public social media data? We discuss this issue in Part 2 of our series.

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Trial by Tech is a blog brought to you by Baylor Law’s Executive LL.M. in Litigation Management—the first program in the nation designed exclusively for lawyers who aspire to direct effective litigation strategy, control electronic discovery, leverage technology, manage a team, and lead their company’s or firm’s efforts to manage a high-volume, high-stakes docket.

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