• United States



Beware Jurors Bearing Smart Phones

Nov 10, 20092 mins
IT Leadership

There has always been a concern about jurors improperly communicating information about their cases.  It has been the standard practice in trial courts for judges to admonish jurors about making any communications concerning the case until after the trial is completed.  Unfortunately, ready access to cell phones, particularly smart phones, is rapidly undermining this fundamental precept of our judicial system.  Jurors are using their phones to communicate information about the case to friends, family, and other third parties.  They are also using Web access on their phones to improperly research matters relating to the trial (e.g., Googling the parties, researching alternate theories, etc.).  All of these actions are strictly forbidden by the courts. As was reported recently in the Christian Science Monitor, a juror in one case Tweated the potential outcome of a significant civil action.  That communication could have resulted in the decision of the jury being reversed on appeal and the possible substantial expense of a new trial.  If the parties in that case had been publicly traded companies, the “inside” information about the possible outcome of the trial could have been used to make illegal trades in the companies’ stock.As a result of the foregoing, businesses involved in litigation must ensure jurors are not only generally instructed regarding their obligation not to communicate information about their cases to third parties or research information that is not in evidence in the case, but must be specifically put on notice about the improper use of cell phones and other technologies to accomplish these prohibited activities.


Michael R. Overly is a partner and intellectual property lawyer with Foley & Lardner LLP where he focuses on drafting and negotiating technology related agreements, software licenses, hardware acquisition, development, disaster recovery, outsourcing agreements, information security agreements, e-commerce agreements, and technology use policies. He counsels clients in the areas of technology acquisition, information security, electronic commerce, and on-line law.

Mr. Overly is a member of the Technology Transactions & Outsourcing and Privacy, Security & Information Management Practices. Mr. Overly is one of the few practicing lawyers who has satisfied the rigorous requirements necessary to obtain the Certified Information System Auditor (CISA), Certified Information Privacy Professional (CIPP), Certified Information Systems Security Professional (CISSP), Information Systems Security Management Professional (ISSMP), Certified Risk and Information System Controls (CRISC) and Certified Outsourcing Professional (COP) certifications.

The opinions expressed in this blog are those of Michael R. Overly and do not necessarily represent those of IDG Communications, Inc., its parent, subsidiary or affiliated companies.

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