Tuesday, August 21, 2018

When can the losing party review a juror's Twitter account in seeking a new trial?

A federal judge has upheld an employment discrimination verdict against a prominent sugar manufacturer in Yonkers, ruling that the jury had an evidentiary basis in finding the plaintiff suffered discrimination, retaliation and a hostile work environment on the basis of his national origin. Along the way, the court issues a few interesting holdings about "garden variety" damages and how defendants may challenge adverse verdicts in the face of alleged juror misconduct.

The case is Lewis v. American Sugar Refining, Inc., 14-cv-2302 (CRK), issued on August 17. I helped to defend the verdict post-trial. Megan Goddard and Nathaniel Charny tried the case in April 2018, when the jury awarded the plaintiff $250,000 in pain and suffering, $104,000 in lost wages and $2,000,000 in punitive damages. Plaintiff argued -- and the jury agreed -- that his manager made repeated comments disparaging plaintiff's national origin and that plaintiff suffered retaliation after he complained about the hostile work environment. Every lengthy court ruling post-trial includes some important holdings and judicial observations. This blog post will focus on the juror bias issue. The next post will cover the remaining issues, including damages for pain and suffering.

Post-trial, defendants' lawyers trolled the social media accounts of the jurors and found that the Twitter account for one of the jurors exhibited anti-corporate bias even though this juror said during jury selection that he could be fair to both parties, one of whom is a corporation. This argument underscored defendants' new trial motion. Judge Kelly writes, "the ability to be objective and fair does not require the absence of personal views outside of this case. The jury is asked to listen to the evidence objectively, weigh the credibility of witnesses and testimony, and assess the case based on what they hear and see in the courtroom. Jurors may and can have personal views on certain issues, but in evaluating the potential for juror bias and impartiality during voir dire, the relevant inquiry is whether a juror can set those views aside to assess the case based solely on the evidence presented. The court asked Prospective Juror 28, asking him if he could be fair and put his role as a union member and representative out of his mind. He answered under oath that he could."

In a footnote, the court says there are "serious policy concerns regarding the appropriateness of counsel delving into jurors' social media accounts, after the conclusion of trial, to potentially uncover juror statements made out of court and unrelated to the proceedings, and use any discovered statements as evidence of purported juror bias or inability to be fair. Such a practice may decrease willingness to serve on juries or dampen private citizens' ability to engage in civil discourse." Few new trial motions are granted on the basis of alleged juror misconduct. We may pick through the jury's analysis post-trial all the way to the Court of Appeals, but courts are loathe to second-guess a jury's credibility determinations and promises to decide the case fairly.

In this world of ubiquitous social media, everyone is saying anything on Facebook, Twitter and all the other social media platforms. The juror in this case made clear on Twitter his thoughts on the one-percent, tax cuts for the rich, etc. As the trial court held, that does not mean the juror cannot be fair to corporations. The dangers of paying a law firm associate to go through the social media accounts for each of the eight (or more) jurors post-trial in the hopes of finding something defendant can use on a post-trial motion have not been fleshed out by a federal judge, until now.

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