I Saw it on Facebook, now how do I use it at Trial?

“I SAW IT ON FACEBOOK, NOW
HOW DO I USE IT AT TRIAL?”
DBA TRIAL SKILLS
November 11, 2011
MICHAEL SAWICKI
(with special assistance from Brandi Concienne)
Sawicki & Lauten, L.L.P.
4040 N. Central Expressway, Ste. 850
Dallas, Texas 75204
(214) 468-8844
(214) 468-8845 (Fax)
msawicki@sawickilauten.com
Michael G. Sawicki
Sawicki & Lauten, L.L.P.
4040 North Central Expressway, Suite 850
Dallas, Texas 75204
(214) 468-8844 ( Telephone)
(214) 468-8845 ( Facsimile)
msawicki@sawickilauten.com
Michael Sawicki is Board Certified in Personal Injury litigation by the Texas Board of
Legal Specialization. His past experience includes work on major airline crashes, military
aviation and weapons cases, general aviation product liability, medical malpractice wrongful
death and injury cases and sexual assault and abuse cases. In 2005, he obtained a $606,100,000
jury verdict in a Dallas County wrongful death medical malpractice trial. The verdict was one of
the largest in the nation that year.
Mr. Sawicki is a graduate of the Southern Methodist University School of Law. Before
entering law school, he worked for several years as a news reporter for the Dallas Times Herald.
He covered Dallas courts and police department for the newspaper and wrote a column on the
business of law in the city.
He earned his undergraduate degree from the University of Missouri- Columbia School
of Journalism. Mr. Sawicki has long been fascinated with flying and is a licensed pilot. He
enjoys flying gliders in his spare time.
PROFESSIONAL ACTIVITIES:
Texas Monthly Super Lawyer (2003- present)
Dallas Bar Association, currently president of the Association’s Trial Skills section
American Bar Association
Texas Trial Lawyers Association
The American Association of Justice
Dallas Area Trial Lawyers Association, Board of Directors
PRACTICE AREAS:
Aviation, medical malpractice, general negligence, product liability, nursing home negligence.
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. i
Introduction ..................................................................................................................................... 1
The Impact of New Information Technology ................................................................................. 1
Kwame Kilpatrick ............................................................................................................... 3
Twitter Verdict .................................................................................................................... 6
Facebook DWI .................................................................................................................... 7
Social Networking Sites.................................................................................................................. 8
What can you find on Facebook? ..................................................................................... 10
MySpace Features ............................................................................................................. 13
Bulletins ............................................................................................................................ 13
Groups ............................................................................................................................... 13
MySpaceIM ...................................................................................................................... 14
MySpaceTV ...................................................................................................................... 14
Applications ...................................................................................................................... 14
MySpace Mobile ............................................................................................................... 14
MySpace News ................................................................................................................. 14
MySpace Classifieds ......................................................................................................... 14
MySpace Karaoke ............................................................................................................. 15
MySpace Polls .................................................................................................................. 15
MySpace forums ............................................................................................................... 15
Other social networking sites ........................................................................................................ 15
Orkut. ................................................................................................................................ 16
Linked In. .......................................................................................................................... 16
Ryze.com ........................................................................................................................... 16
i
Affluence.org. .................................................................................................................... 17
Buzznet.com. ..................................................................................................................... 17
DeviantArt. ........................................................................................................................ 17
Reunion.com...................................................................................................................... 17
VampireFreaks.com .......................................................................................................... 18
Windows Live Spaces. ....................................................................................................... 18
Twitter ............................................................................................................................... 19
Privacy and security ...................................................................................................................... 20
Using Social Network Evidence in Court ..................................................................................... 20
Discovery Issues ............................................................................................................... 20
Finding Social Networking Evidence ............................................................................... 21
Legal issues- General Concerns About Admissibility of Social Networking Evidence ... 23
Authentication ................................................................................................................... 23
Authentication under the Federal Rules ............................................................................ 24
Relevance and undue prejudice ........................................................................................ 25
Hearsay ............................................................................................................................. 26
Best evidence .................................................................................................................... 27
Other Uses of Social Networking Evidence ................................................................................. 27
Jury Selection .................................................................................................................... 27
Current Texas Social Networking Cases .......................................................................... 28
Hernandez v. State, 2010 WL 2099220 (Tex. App. – San Antonio 2010). ...................... 28
Mann v. Department of Family and Protective Services, 2009 WL 2961396 (Tex.App.Houston [1 Dist.], 2009) ................................................................................................... 28
Munoz v. State, 2009 WL 695462 (Tex. App. – Corpus Christi 2009) ............................ 29
Draker v. Schrieber, 271 S.W.3d 318, (Tex. App. – San Antonio 2008 WRIT) ................. 29
ii
In Re Rodney Reed, 2009 WL 97260 (Tex. Crim. App. 2009) (not reported)
........................................................................................................................................... 30
Williford v. State, 127 S.W.3d 309 (Tex. App.-­‐ Eastland 2004) ....................................... 30
Social Networking Cases outside of Texas ....................................................................... 30
State v. Altajir, 123 Conn.App. 674, --- A.2d ----, 2010 WL 3489049 (Conn. App. 2010)
........................................................................................................................................... 30
Jabbar v. Travel Services, Inc., 2010 WL 3563112 (D.Puerto Rico, 2010) ..................... 31
Griffin v. State, 192 Md.App. 518, 995 A.2d 791 (Md.App., 2010) ................................ 31
Crispin v. Christian Audigier, Inc., --- F.Supp.2d ----, 2010 WL 2293238 (C.D.Cal.,
2010) ................................................................................................................................. 36
Bass ex rel. Bass v. Miss Porter's School, 2009 WL 3724968 (D.Conn., 2009) ............. 37
Maldonado v. Municipality of Barceloneta, 2009 WL 636016 (D.Puerto Rico, 2009) ... 37
Cases of General Interest .................................................................................................. 38
Email Authentication ........................................................................................................ 38
U.S. v. Sidiqui, (11th Cir. 2000) 235 F.3d 1318. .............................................................. 38
People v. Von Gunten, (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished.] ....... 38
On-line Evidence Admissibility ........................................................................................ 38
United States v. Brand, 2005 WL 77055 (S.D.N.Y. January 12, 2005). .......................... 38
Hammontree v. State, (Ga. Ct. App. 2007) -­‐-­‐-­‐ S.E.2d -­‐-­‐-­‐-­‐, 2007 WL 547763.................. 38
U.S. v. Burt, (7th Cir.,July 26, 2007) 495 F.3d 733 .......................................................... 38
Lorraine v. Markel American Insurance Company, (D.Md. May 4, 2007) 241 F.R.D. 534.
........................................................................................................................................... 39
People v. Hawkins, (June 2002) 98 Cal.App.4th 1428 ..................................................... 39
EEOC v. E.I dupont de Nemours & Co., 2004 WL 2347559, 65 Fed. R. Evid. Serv. 706,
........................................................................................................................................... 39
Telewizja Polska USA, Inc., v. Echostar Satellite Corp., (N.D. Ill.2004) 2004 WL
2367740 [Not Reported] ................................................................................................... 39
iii
Authentication of Screen Name ........................................................................................ 39
People v. Von Gunten, (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished.] ....... 39
Introduction of Web Sites ................................................................................................. 39
EEOC v. E.I dupont de Nemours & Co., 2004 WL 2347559, 65 Fed. R. Evid. Serv. 706,
........................................................................................................................................... 39
Telewizja Polska USA, Inc., v. Echostar Satellite Corp., (N.D. Ill.2004) 2004 WL
2367740 [Not Reported] ................................................................................................... 39
Bass v. Miss Porter’s Sch., 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009) ..... 39
Texas Cases of General Interest ........................................................................................ 40
Faxes ................................................................................................................................. 40
Computer Printouts ........................................................................................................... 40
Emails and chat room transcripts ...................................................................................... 40
Websites ............................................................................................................................ 41
Digital video ..................................................................................................................... 41
Automated computer-generated records ........................................................................... 41
Chain of custody ............................................................................................................... 41
Ethical Issues related to Social Networking sites ......................................................................... 41
Truthfulness in Statements to Others ................................................................................ 42
New Duty to advise clients? ............................................................................................. 42
iv
“I SAW IT ON FACEBOOK, NOW
HOW DO I USE IT AT TRIAL?”
MICHAEL SAWICKI
Introduction
The internet has revolutionized the way the world communicates. Information now
moves in a variety of ways, is stored in many locations and can travel instantly across the globe
amazingly, people are often incredibly frank when using this new technology, publishing
intimate details of their lives for anyone who knows how to find it to see. Learning to find,
collect and use this new information can arm litigators with powerful and economical tools. This
information can be used to do a variety of trial-related tasks from instantly evaluating potential
jurors to conducting potentially damaging discovery of an opponent or witness.
This paper reviews recent news events where information from websites and instant
message services entered the courtroom with damaging effect. It will provide a brief overview of
some of the more popular social networking and instant messaging sites. And it will discuss the
developing law and other practical uses of electronic information in court.
The Impact of New Information Technology
Recent news stories demonstrate that new communication and social networking
technology is providing powerful evidence in today’s courtrooms. For proof, consider the
following:
-
In Arkansas, a $12 million jury verdict was almost overturned when it was learned
one of the jurors had been posting details of the case on his Twitter account.
-
In Detroit, Mayor Kwame Kilpatrick was convicted of perjury and was forced out of
office when thousands of pages of text messages were discovered that proved he had
an affair with another worker.
1
-
In Rhode Island, a defendant in a DWI case received a stiffer sentence when
prosecutors discovered photos of him drinking while wearing a prison costume on his
Facebook page.
-
In Milwaukee, a surgeon performed a knee surgery using Twitter to provide minute
by minute descriptions of the procedure while it was actually taking place.
A few years ago, the use of social networking sites and instant messages were popular
among relatively small number of people. Today, hundreds of millions regularly log into sites
like Facebook and Myspace to share information, re-connect with old friends and look for
employment. It is estimated that there are currently more than 500 social networking sites online
ranging from those with broad appeal, like Facebook, to others that which much narrower and
often unique focuses, like Ravelry – a site specializing on knitting and crocheting and
Vampirefreaks – a site devoted to people wishing to dress and live like vampires. The sites are
typically easy to join, encourage interaction between their members and can be a wonderful
source of information about potential witnesses, parties to cases and even jurors.
Along with the rise of social networks, the popularity of communicating using text
messages, chat rooms and sites like Twitter has exploded. Most cell phone service includes text
messaging capability and many web sites host services that can be used to conduct private chat
sessions amongst individuals or groups. From AOL Instant Messenger to Yahoo! Messenger,
there are now many methods available to send and receive information almost instantly.
For some reason, many users of both social networking sites and messaging services do
so without any, or very little discretion, about what they post. This unguarded approach to use of
these services has begun to provide litigators with powerful weapons in the courtroom. The most
high-profile recent example would be the amazingly quick downfall of Detroit Mayor Kwame
Kilpatrick.
2
Kwame Kilpatrick
Kilpatrick and an aide, Christine Beatty, gave depositions in a civil wrongful termination
lawsuit brought by a city employee. The employee had alleged that Kilpatrick and Beatty had
conspired against him to have him terminated. In the civil depositions, Kilpatrick denied any
involvement in the decision to fire the employee and further repeatedly denied any affair with
Beatty. Kilpatrick, who was married at the time, testified in the civil depositions that he had
nothing but a professional relationship with Beatty and rarely saw her in person.
Then, the cat got out of the bad.
Attorneys got a hold of more than 600 pages of text messages Kilpatrick made on a city
phone. The records contained more than 14,000 text messages sent between Kilpatrick and
Beatty during 2002 and 2003, when the issues involved in the wrongful termination suit were
happening. Contrary to Kilpatrick and Beatty’s testimony about their relationship, the text
messages revealed in intimate detail that they were in fact having an affair. 1
Here are some of the messages. Consider whether you would want to get similar evidence
about a defendant if you could.
1
M.L. ELRICK; JIM SCHAEFER and BEN SCHMITT (March 26, 2008). "Text message casts more doubt on
mayor
HE
ASKED
HOW
TO
EXPLAIN
COP'S
FIRING".
Detroit
Free
Press.
http://www.freep.com/apps/pbcs.dll/article?AID=/20080326/NEWS01/803260408.
3
4
5
After the text messages were released, Wayne County Prosecutor Kym Worthy
announced a 12-count criminal indictment against Kilpatrick and Beatty, charging Kilpatrick
with eight felonies and Beatty with seven. The charges included perjury, misconduct in office
and obstruction of justice. Kilpatrick ultimately pled guilty to two felony counts of obstruction of
justice, agreed to serve a four month jail term, pay a one million fine, surrender his law license,
and resign his post.2
Twitter Verdict
Consider this litigator’s nightmare; you’ve just tried a difficult case and won a multimillion verdict jury verdict. But, days after the verdict, the other side moves to set it aside
because of evidence that a juror was texting messages about the deliberations.
This is exactly what happened in an Arkansas court in March 2009. Attorneys for Stoam
Holdings filed a motion requesting a new trial of a $12 million jury verdict after they found that
a juror sent eight messages about the case on his Twitter account via his cell phone. One
message, sent before the jury announced its verdict, read: “Ooh and nobody buy Stoam. Its bad
mojo and they'll probably cease to Exist, now that their wallet is 12m lighter.” Another read: “I
just gave away TWELVE MILLION DOLLARS of somebody else’s money.” Stoam’s attorneys
argued that these and other messages sent during the trial demonstrated that the juror was not
impartial and conducted outside research about the issues involved in the case.
The Court ultimately held that the juror’s actions did not violate any rules and denied the
motion for new trial.3 The judge held that there was no evidence the juror, Jonathan Powell, did
any outside research about the case and that his Twitter messages did not demonstrate evidence
of his being partial to either side. The judge noted that some of the messages were sent before
Powell was selected as a juror and that the attorneys for the defense had not bothered to question
2
ASHENFELTER, DAVID (March 27, 2008). “Detroit resident files recall petition against mayor”. Detroit Free
Press. http://www.freep.com/apps/pbcs.dll/article?AID=/20080327/NEWS01/80327060. Retrieved on 2008-03-28;
ELRICK, M.L., SCHAEFER, JIM, SWICKARD, JOE and SCHMITT, BEN, (September 4, 2008). “Kilpatrick to
city: ‘There’s another day for me’ Fallen, yet resolute, mayor says he accepts responsibility for actions. Detroit Free
Press.
3
GAMBRELL, JON (April 3, 2009) “Judge Rejects New Trial Over Juror’s Online Posts,” Kansas City Star.
6
him about bias during jury selection. In statements to the media, Powell said he just wanted to be
a good juror and was looking forward to his involvement in the process. He said he did not use
his cell phone or lap top during the trial, although he brought them to court each day and warned:
“The courts are just going to have to catch up with the technology.”4
Facebook DWI
A 20-year old Rhode Island man had been charged with driving drunk and causing a
crash that seriously injured another driver. Before his sentencing, prosecutors checked Joshua
Lipton’s Facebook page as part of their routine investigation. They found that two weeks after
he’d been charged with causing the wreck, Lipton attended a Halloween party dressed as a “jail
bird.” There were several photos of him posing with his tongue sticking out in a black-and-white
striped shirt and an orange, prison-style jumpsuit with the words “JAILBIRD” printed on the
chest.
The prosecutors offered the photos into evidence during the sentencing and argued that
Lipton was an “unrepentant partier” who “lived it up” while the female victim of the crash laid in
4
DAVIS, SCOTT F. (April 2, 2009). “No new trial over Juror’s Twittering,” Northwest Arkansas Times. Powell
continued to post Twitter entries about ordeal and sudden notoriety after the trial. On the day he was supposed to
appear in court to address the issues raised in the motion for new trial he wrote “Well, I’m off to see a judge. Hope
they don’t lock me under the jail, and forget about me for four days.”
7
a hospital bed. The judge agreed, calling Lipton “depraved” and handed down a 2-year prison
sentence.5
Social Networking Sites
Social networking sites have proliferated across the globe, with millions of users and
more being springing up every day. They typically focus on building online communities of
people who share similar interests or are interested in learning more about specific topics. Most
provide users ways to trade messages, send pictures and videos and share information over the
internet through email and instant messaging services. Typically, joining the sites is free and can
instantly link a user with access to information on millions of people. Many users customize their
5
KUFF, NICOLETTE (July 20, 2008) “Facebook Photos Lead to 2-year Sentence After Drunk Driving Crash,
Prosecutors Now Digging for Dirt on Various Social Networking Sites,” Rhode Island News.
8
sites with detailed personal information, including birthdates, work histories, voting preferences,
political and social affiliations.6
This unlimited access has concerned some of these sites’ operators and users worried
about who can see their information. Recently, some sites have taken steps to reduce access and
beef up user’s controls over who can see their information. But the same search tools created to
help link users with long-lost friends and others with similar interests can be used by anyone
seeking to get more information.
This portion of the paper will review some of the more popular sites, describe how you
access them and what information may be, generally, available.
Anyone not living under a rock, or ensconced in the warm cocoon of a post-tort reform
legal practice, will have heard about Facebook by now. The social networking site recently
surpassed Myspace in total user numbers.7 The site was started by two Harvard University
students in 2004 as a way for students there to get to know one another. Just two weeks after it
was launched, nearly half the Boston area schools began demanding their own Facebook
networks. In four months, Facebook had grown to more than 30 different colleges. Since then, its
rise has been meteoric.8 In the summer of 2006, Yahoo offered Facebook’s creators $1 billion to
purchase the site. They turned the offer down.9
6
GROSS, R and ACQUISTI, A (2005) “Information Revelation and Privacy in Online Social Networks (The
Facebook case),” ACM Workshop on Privacy in the Electronic Society (WPES); “Social Nets Engage in Global
Struggle" - 66% of MySpace and Facebook users come from North America” Adweek website. (January 15, 2008).
7
ARRINGTON, MICHAEL (June 12, 1008) “Facebook No Longer the Second Largest Social Network,” Tech
Crunch.com
8
Facebook, (April 20, 2009) TechCrunch.com
9
SAKUMA,
PAUL
(June
17,
2007)
“The
Future
of
Facebook,”
Time.
http://www.time.com/time/business/article/0,8599,1644040,00.html. Retrieved on 2008-03-05.
9
Last year, the 25-year old inventor is listed as the 321st richest person in the U.S. with an
estimated net worth of $1.5 billion. He is the youngest person to ever appear on the Forbes 400.10
The site that started as a way to help meet girls has now grown into one of the largest
social networking sites in the world. More than 1 million new users signed up every week in
2007, swelling the total number over 50 million. Facebook pages received more than 40 billion
page views a month. The make-up of the average user changed dramatically with over 11% of its
users over the age of 35. Currently, the fastest growing demographic is among users over the age
of 30. The popularity of the site has spread internationally as well, with approximately 15% of its
user base in Canada.11
Users’ activities on the site is amazing. One survey found more than half of Facebook
users visited on a daily basis and spent an average of 19 minutes a day on it. Facebook is listed
as the 6th most trafficked site in the U.S. and the top photo sharing site with more than 4 billion
photos uploaded.12
What can you find on Facebook?
Facebook has a number of features that have proved wildly popular with users. Many
also provide an interesting source for litigators to examine when digging into a case. First, it is
free for users to join the site. When they do, new users are asked to provide some personal
information when starting their access such as where they graduated from high school, their birth
date, geographical location. This information then helps the user connect with people who have
similar backgrounds or interests. Anecdotally, I joined the site and input where I graduated from
high school. Within seconds of joining, Facebook suggested two “friends” that I might know
who were also users of the site. One was my best friend from junior high school now living in
Sweden. We had not seen or communicated with each other for years. The other was working in
10
“The 400 Richest Americans - #321 Mark Zuckerberg” (September 17, 2008) Forbes.
Facebook, TechCrunch.com (April 20, 2009).
12
Id.
11
10
Hong Kong and had also been out of communication because of the geographical distance.
Within weeks, we were reconnected and picking up our friendship even though we were all miles
way from one another.
Once they have created an account, users can customize their profile with as little or as
much information about themselves as the wish. The site profile contains fields for basic
information like birth date, hometown, relationship status, areas of interest and political views. It
also asks for contact information, past education and work history and will list any other special
areas of interest that the user adds to it.
11
In addition to the Profile, Facebook has a number of other features that have proved very
popular with users. They include:
-
Facebook Chat – a real-time chat service allowing users to communicate instantly
with other users logged onto the site.
Facebook Connect – a tool that allows the user to link his or her profile to any other
web address or internet site.
Facebook Newsfeed – a device that automatically broadcasts users’ most important
activities and status updates.
Facebook IPhone App – allows IPhone users to connect to their Facebook pages and
receive instant updates from friends.
MySpace was launched in the Summer of 2003 and quickly grew to be one of the first
successful social networking sites.13 The site was created by employees of eUniverse, a Los
Angeles based internet marking company, who had seen the potential future market while
working with an earlier site called Friendster. 14 Initially used only by eUniverse employees,
MySpace quickly grew in popularity when the company sponsored contests to draw new users.15
Within a short time, MySpace grew to have more than 20 million users. MySpace’s commercial
success was driven by the use of targeted advertising. The site used personal information entered
by users to generate data that allowed advertisers to use behavioral targeting to focus ads that
they might be interested in.16 In 2006, Google paid MySpace $900 million to make its search
engine exclusively listed on the site.17
13
Lapinski, Trent (2006-09-11). “MySpace: The Business of Spam 2.0 (Exhaustive Edition)”. ValleyWag.
http://valleywag.com/tech/myspace/myspace-the-business-of-spam-20-exhaustive-edition-199924.php. Retrieved on
2008-03-13.
14
Betsy Schiffman, May 9, 2008. “In Praise of Friendster”, Wired. Retrieved October 27, 2008.
15
Rosmarin, Rachel (2006-10-04). “The MySpace Economy”. Forbes. http://www.forbes.com/2006/04/07/myspacegoogle-murdoch-cx_rr_0410myspace.html. Retrieved on 2006-10-04.
16
Story, Louise and comScore (March 10, 2008). “They Know More Than You Think” (JPEG).
http://www.nytimes.com/imagepages/2008/03/10/technology/20080310_PRIVACY_GRAPHIC.html. in Story,
Louise (March 10, 2008). “To Aim Ads, Web Is Keeping Closer Eye on You”. The New York Times (The New York
Times Company). http://www.nytimes.com/2008/03/10/technology/10privacy.html. Retrieved on 2008-03-09.
17
Google signs $900m News Corp deal". BBC News. 2006-08-07. http://news.bbc.co.uk/1/hi/business/5254642.stm.
Retrieved on 2006-09-09.
12
MySpace initial success was with younger users but this demographic also created
problems for the company. While the minimum age to join was 14, the site became the subject of
news reports of under-aged users being targeted by sexual predators. There were also wellpublicized incidents involving parties advertised on MySpace that grew out of control. MySpace
has responded to the issues by trying to beef-up security and privacy of personal information
with moderate success.
While still enjoying considerable success, lately MySpace has been losing ground to the
growing popularity of Facebook which recently surpassed it with the number of users. MySpace
has responded to the challenge by taking the service world-wide and now boasts users
throughout Europe, Canada, South America and China.
MySpace Features
MySpace provides many of the same social networking tools as rival Facebook. Both
sites allow users to post information about themselves, their personal professional and political
interests and provide updates about user’s moods and activities. The primary difference between
the two sites is the ability for users to uniquely customize the look of their profile pages with
photos, graphics and animations. Users can also add music to their pages via the MySpace
Music, a service that allows bands to post songs for use on the site. There are estimated to be
more than eight million artists with songs on MySpace and the number continues to grow.18The
popularity of the page customization feature has spawned several services and websites that help
users create unique pages.
Other MySpace features include:
Bulletins
Bulletins are posts that are posted on to a “bulletin board” for everyone on a MySpace
user’s friends list to see. Bulletins can be useful for contacting an entire friends list without
resorting to messaging users individually. Some users choose to use Bulletins as a service for
delivering chain messages about politics, religion, or anything else and sometimes these chain
messages are considered threatening to the users, especially the ones that mention bad luck,
death, or topics similar to that. Bulletins are deleted after ten days.
Groups
MySpace has a Groups feature which allows a group of users to share a common page
and message board. Groups can be created by anybody, and the moderator of the group can
choose for anyone to join, or to approve or deny requests to join.
18
Coyle, Jack (2008-04-28). “Myspace unveils new
http://www.msnbc.msn.com/id/24358965/. Retrieved on 2008-04-29.
13
karaoke
feature”.
Associated
Press.
MySpaceIM
In early 2006, MySpace introduced MySpaceIM, an instant messenger that uses one's
MySpace account as a screen name. A MySpace user logs in to the client using the same e-mail
associated with his or her MySpace account. Unlike other parts of MySpace, MySpaceIM is
stand-alone software for Microsoft Windows. Users who use MySpaceIM get instant notification
of new MySpace messages, friend requests, and comments.
MySpaceTV
In early 2007, MySpace introduced MySpaceTV, a service similar to the YouTube video
sharing website. MySpaceTV is now in beta mode, and will probably be launched as a separate
site in either 2008 or early 2009. MySpaceTV might be a standard channel that will be shown on
television.
Applications
In 2008, MySpace introduced an API with which users could create applications for other
users to post on their profiles. The applications are similar to the Facebook applications. In May
2008, MySpace had added some security options regarding interaction with photos and other
media.
MySpace Mobile
There are a variety of environments in which users can access MySpace content on their
mobile phone. American mobile phone provider Helio released a series of mobile phones in early
2006 that can utilize a service known as MySpace Mobile to access and edit one's profile and
communicate with, and view the profiles of, other members.19 Additionally, UIEvolution and
MySpace developed a mobile version of MySpace for a wider range of carriers, including
AT&T, Vodafone and Rogers Wireless.20
MySpace News
In the month of April 2007, MySpace launched a news service called MySpace News
which displays news from RSS feeds that users submit. It also allows users to rank each news
story by voting for it. The more votes a story gets, the higher the story moves up the page.
MySpace Classifieds
Full service classifieds listing offered beginning in August 2006. It has grown by 33
percent in one year since inception. MySpace Classifieds was launched right at the same time the
site appeared on the internet.
19
“MySpace Mobile To Debut On Helio; Details on Handsets”. Dis*Content Media LLC. 2006-02-16.
http://www.moconews.net/?p=5176. Retrieved on 2006-09-08.
20
“MySpace partners with Vodafone”. StrategyWire.
http://live.marketclusters.com/cl2/view/2007/02/07/myspace_partners_with_vodafone/. Retrieved on 2007-02-08.
14
MySpace Karaoke
Launched April 29, 2008, ksolo.myspace.com is a combination of MySpace and kSolo,
which allows users to upload audio recordings of themselves singing onto their profile page.
Users’ friends are able to rate the performances.
MySpace Polls
MySpace Polls is a feature on MySpace that was brought back in 2008 to enable users to
post polls on their profile and share them with other users.
MySpace forums
Allows MySpace users to discuss a variety of topics on line with other users.
Other social networking sites
The number of social networking sites seems to be expanding each day. Any paper trying
to capture them all will fail and instantly date itself. Safe to say, there are sites for almost any
type of interest including sites for job searches, religious organizations, and many “special
interests. Some examples include:
15
Orkut is a social networking service which is run by Google and named after its creator,
an employee of Google - Orkut Büyükkökten – in 2006. The service is similar to Facebook and
MySpace. It was originally targeted at the U.S. market but has become very popular in Brazil
and India.
Linked In is a business-oriented social networking site launched in 2003 for professional
networking. As of February 2009, it had more than 35 million registered users spanning more
than 170 industries. The site allows users to link up their professional activities through alumni,
industry or other professional groups. The site allows registered users to maintain contact
information for people they know and trust in lists called Connections. Users can invite anyone
(whether a site user or not) to become a connection and they may, in turn, be introduced to other
site users. The site is currently popular for job and resume listings.
Ryze.com is another site designed to link business professionals, with an emphasis on
new entrepreneurs. It claims to have over 500,000 members in 200 countries, with over 1,000
external organizations hosting sub-networks on the site. Both paid and unpaid membership levels
are offered.
16
Affluence.org is an online social network targeting affluent and influential individuals.
The site, founded in 2008, claims that its members must have a net worth of at least US$ 3
million, or have an income of $300000 a year.
Buzznet.com is a photo, journal, and video-sharing social media network. Its members
seem to be focused around popular culture, predominantly music, celebrities and the media. Like
MySpace, users can personalize their profile pages with music, photographs and graphics to
reflect their individual tastes.
DeviantArt is an online community art showcasing website. Launched in 2000, the site
claims to have more than 10 million members with over 75 million art submissions online. The
site offers artists a place to exhibit and discuss their works in a variety of mediums including
photography, digital art, traditional art, film and website “skins.” The domain is said to have
received at least 36 million visitors in 2008.21
Reunion.com, which recently changed its name to MyLife.com, was founded in 2002 by
a man who first met his wife while attending a high school reunion. The site claims to help
members find and keep in touch with old friends, relatives and lost loves. It claims to have more
than 28 million members in the United States and Canada.
21
Ressner, Jeffrey (October 19, 2006). "The Newest Time Waster: Line Rider". Time Magazine.
http://ww.time.com/time/business/article/0,8599,1548299-1,00.html. Retrieved on 2006-12-12
17
VampireFreaks.com, which users refer to as “VF,” is an online community catering to
the Gothic/industrial subculture. Basically people who like to dress up and act like vampires.
Founded in 1999, the site boasts more than 1 million users worldwide. Users can highly
personalize their pages, with software tools more powerful than those found on MySpace, and
can join forums catering to specific “cults” within the subculture. Registration is free but a paidfor “premium” membership entitles users to access to a number of bonus features.
Windows Live Spaces (also known by its users as MSN Spaces) is Microsoft’s blogging
and Social Networking platform. The site was originally released in early 2004 under the MSN
Spaces name to compete with other social networking sites. Windows Live Spaces received an
estimated 27 million (27,000,000) unique visitors per month as of August 2007.22
Social networks are beginning to be adopted by healthcare professionals as a means to
manage institutional knowledge, disseminate peer to peer knowledge and to highlight individual
physicians and institutions. The advantage of using a dedicated medical social networking site is
that all the members are screened against the state licensing board list of practitioners. The role
of social networks is especially of interest to pharmaceutical companies who spend
approximately “32 percent of their marketing dollars” attempting to influence the opinion leaders
of social networks.
22
“Face to interface”. Social networks. Economist.com.
http://economist.com/daily/chartgallery/displaystory.cfm?story_id=9981022. Retrieved on 2007-11-15.
18
A new trend is emerging with social networks created to help its members with various
physical and mental ailments. For people suffering from life altering diseases, PatientsLikeMe
offers its members the chance to connect with others dealing with similar issues and research
patient data related to their condition. For alcoholics and addicts, SoberCircle gives people in
recovery the ability to communicate with one another and strengthen their recovery through the
encouragement of others who can relate to their situation. Daily strength is also a website that
offers support groups for a wide array of topics and conditions, including the support topics
offered by PatientsLikeMe and SoberCircle. SparkPeople offers community and social
networking tools for peer support during weight loss.
Twitter is a social networking and micro-blogging service that enables its users to send
and read other users’ updates known as tweets. Tweets are text-based posts of up to 140
characters in length. Updates are displayed on the user's profile page and delivered to other users
who have signed up to receive them. Senders can restrict delivery to those in their circle of
friends or have the posts visible to anyone accessing the site. Users can send and receive updates
via the Twitter website or through a number of other applications such as Tweetie, Twitterrific,
Twitterfon, TweetDeck and feedalizr. The service is free to use over the web but cell phone users
may incur a charge.
Twitter was created by Cornell student Jack Dorsey in 2006 and has quickly become a
world-wide phenomenon. The service allows users from sites like Facebook and MySpace to
send and receive short text messages about themselves. The site has proved popular among teens,
people seeking to promote their business or professional services and a growing number of
celebrities.
Estimates of the number of daily users vary as the company does not release the number
of active accounts. In November 2008, Jeremiah Owyang of Forrester Research estimated that
Twitter had 4-5 million users.23 A February 2009 Compete.com blog entry ranks Twitter as the
third most used social network (Facebook being the largest, followed by MySpace), and puts the
number of unique monthly visitors at roughly 6 million and the number of monthly visits at 55
million.24 In March 2009, a Nielsen.com blog ranked Twitter as the fastest growing site in the
Member Communities category for February 2009. Twitter had a growth of 1382%, Zimbio had
a growth of 240%, followed by Facebook with a growth 228%.
23
Aneesh, Jeremiah (2008-11-19). “Social Networks Site Usage: Visitors, Members, Page Views, and Engagement
by the Numbers in 2008”. http://www.web-strategist.com/blog/2008/11/19/social-networks-site-usage-visitorsmembers-page-views-and-engagement-by-the-numbers-in-2008/. Retrieved on 2009-02-16.
24
Kazeniac, Andy (2009-02-09). “Social Networks: Facebook Takes Over Top Spot, Twitter Climbs”
Compete.com. http://blog.compete.com/2009/02/09/facebook-myspace-twitter-social-network/. Retrieved on 200902-17.
19
Privacy and security
Twitter collects personally identifiable information about its users and shares it with third
parties. Twitter considers that information an asset, and reserves the right to sell it if the
company changes hands.25
Twitter has had some problems with security as hackers have accessed the site to send
fake messages from someone else’s account. This has led Twitter to offer users an optional PIN
number to secure their posts. In January 2009, more than 30 high-profile user’s Twitter accounts
were compromised and fake messages – including sexually explicit and drug-related posts –
were sent. This triggered Twitter to re-examine password security in an attempt to avoid future
attacks.26
Using Social Network Evidence in Court
This section of the paper will address methods to discover and use social networking
evidence in your litigation. It will discuss techniques to improve the chances of admitting the
evidence at trial and discuss recent cases dealing with social networking evidence.
Discovery Issues
While there has been an explosive growth of information available on the internet, the
law has not kept pace with the developments. The Federal Rules were recently amended to
address discovery of electronically stored information (ESI) and there are other papers that deal
with that subject in more detail. In general, the new Federal rules, for the first time, explicitly
made mention of ESI and began to set out a framework for how to deal with it. The rules set out
methods requiring parties to deal with e-discovery issues early in the case and provide a
procedural mechanism through which parties can produce and protect electronic data.27
Under the new rules, ESI includes (but is not limited to) e-mail, web pages, word
processing files, computer databases, and almost anything that can be stored on a computer.28
25
“Twitter Privacy Policy”. Twitter. 2007-05-14. http://twitter.com/privacy/. Retrieved on 2009-03-11.
Arrington, Michael (2009-01-05). “Celebrity Twitter Accounts Hacked (Bill O'Reilly, Britney Spears, Obama,
More)”. TechCrunch. http://www.techcrunch.com/2009/01/05/either-fox-news-had-their-twitter-account-hacked-orbill-oreilly-is-gay-or-both/. Retrieved on 2009-01-05. Arrington, Michael (2009-01-05). “Twitter Gets Hacked,
Badly”. TechCrunch. http://www.techcrunch.com/2009/01/05/twitter-gets-hacked-badly/. Retrieved on 2009-01-05.
27
See Federal Rules of Civil Procedure 16, 26, 33, 34, 37 and 45.
28
See THE SEDONA PRINCIPLES: BEST PRACTICES, RECOMMENDATIONS & PRINCIPLES FOR
ADDRESSING
ELECTRONIC
DISCOVERY
at
1,
available
at
http://www.thesedonaconference.org/content/miscFi1es/2007SummaryofSedonaPrinciples2ndEdition
Aug17assentforWG1.pdf (hereinafter “THE SEDONA PRINCIPLES: BEST PRACTICES”). The Sedona
Conference is a nonprofit research and educational institute composed of lawyers, consultants, academics, and
jurists, who discuss appropriate standards for corporations and the courts to follow when addressing issues of
electronic discovery. In the absence of contrary authority, employing the Sedona Principles as guidance is
reasonable and advisable. See, e.g., Zubulake v. U.B.S. Warburg L.L.C., 229 F.R.D. 422, n.122 (S.D.N.Y. 2004)
(“[P]rofessional groups such as the American Bar Association and the Sedona Conference have provided very useful
guidance on thorny issues relating to the discovery of electronically stored information.”); In re Search of 3817 W.
End, 321 F. Supp. 2d 953, 956 (N.D. Ill. 2004) (relying on the principles’ definition of “metadata”).
26
20
The commentators indicate that the rules were intended to be read broadly to apply the ESI
definition to many forms including traditional e-mail, text messaging, instant messaging,
personal web mail, voicemail, Blackberry devices, ‘blogs,’ and other emerging technologies.
Litigants in federal courts are now faced with an obligation to preserve potentially relevant
information contained within any of these sources.
The Texas rules and case law have not kept pace with the Federal developments. In fact,
the Texas Rules of Civil Procedure make very little effort to differentiate electronic discovery
from any other form of discovery. Only Rule 196.4 of the Texas Rules of Civil Procedure
addresses the production of electronic or magnetic data. It states:
To obtain discovery of data or information that exists in electronic or magnetic
form, the requesting party must specifically request production of electronic or
magnetic data and specify the form in which the requesting party wants it
produced. The responding party must produce the electronic or magnetic data that
is responsive to the request and is reasonably available to the responding party in
its ordinary course of business. If the responding party cannot—through
reasonable efforts- retrieve the data or information requested or produce it in the
form requested, the responding party must state an objection complying with
these rules. If the court orders the responding party to comply with the request,
the court must also order that the requesting party pay the reasonable expenses of
any extraordinary steps required to retrieve and produce the information.
Comment Number 3 to the Rule states:
A party requesting production of magnetic or electronic data must specifically
request the data, specify the form in which it wants the data produced, and specify
any extraordinary steps for retrieval and translation. Unless ordered otherwise, the
responding party need only produce the data reasonably available in the ordinary
course of business in reasonably usable form.
Finding Social Networking Evidence
There are many different ways to begin looking for social networking evidence. First, run
simple search engine checks of the names of individuals you are interested in. There are many
search engines, beyond sites like Google.com and Yahoo.com, that offer more focused results.
Many of these search engines will provide basic searches for free but will require a subscription
to get more detailed information. However, even the limited results of a free search can help you
locate witnesses or develop more information about a person. For example, Wink.com is a site
that offers detailed people finding and background searches. The site works by entering a
person’s name and geographic location into its engine. The basic results can show the
individual’s address, age, and the identity of other people who are associated with them. These
results alone can be used to help track someone or identify other potential witnesses.
Other search engines, like Zabasearch.com, allow you to enter a name or a phone number
and find information associated with it. This site helps produce prior street addresses, email
21
addresses and phone numbers, all free of charge. Another site, Pipl.com, produces similar results
and searches for photographs and images associated with the individual on sites like Facebook
and Myspace.
There are a growing number of both free and pay sites providing a wide variety of on-line
search capabilities. Additionally, there are many sites and blogs that provide discussions of
emerging issues in on-line searches, privacy controls and how to gain access to information.
Many of these sites offer search tips and address the constantly changing ways information can
be ferreted out of the internet.
If you haven’t already, it is time to start incorporating requests and interrogatories
concerning social networking evidence into your standard sets of discovery. We currently ask
opposing parties to identify any on-line presence they maintain, including blogs, websites, and
social networking pages. It helps to ask if they use any assumed names or alter-egos in creating a
web presence. From there, we request the actual web address, or URL, to provide access to the
public information the party has placed on the web. We have had limited success seeking access
to private on-line sites, like Facebook, with most judges limiting the discovery to what is
publically available or specifically related to the issues involved in the case.
Again, if you haven’t already, it is time to sit down every client you have and discuss the
importance of monitoring exactly what they put on the web or social networking sites.
Anecdotally, I have heard of lawyers being surprised at depositions of their clients when
opposing counsel pull out incriminating or embarrassing materials posted on the web. One
attorney friend found her clients, a married couple injured in a motor vehicle accident, were
regular members of a website focused on linking people interested in the “swinging” lifestyle
together. While the material might not have been directly relevant to their damage claims, having
it appear for the first time during a video-taped deposition is not a comfortable legal experience.
Clients also need to be told that sites their friends are posting on can also create
problems. Facebook, for example, allows individuals to “tag” people – i.e. post their names – on
photographs put on the site. These tags may not always be covered by the individual’s privacy
settings and can sometimes be accessed by the general public.
A recent case out of Ontario, Canada provides a look at where the law may be taking us
on this issue. A judge in a personal injury case expressed an opinion that it may now constitute
legal malpractice for a lawyer to ignore the potential damaging effect of social networking
evidence and fail to educate their clients about it. In Leduc v. Roman, 2009 CanLII 6838 (ON
S.C.), the judge suggested a new standard of care may now apply.
“Given the pervasive use of Facebook and the large volume of photographs typically
posted on Facebook sites, it is now incumbent on a party’s counsel to explain to the client, in
appropriate cases, that documents posted on the party’s Facebook profile may be relevant to
allegations made in the pleadings.”
Because this same logic could be extended to almost anything on the web, i.e. YouTube,
Twitter, Flickr, Myspace, etc. and the methods of accessing the web are constantly changing,
22
lawyers may now have to keep pace with developments to ensure their clients are appropriately
counseled.
Legal issues- General Concerns About Admissibility of Social Networking Evidence
Texas, like most other states, has very few cases directly dealing with the admissibility of
social networking evidence. Absent that, the best approach is to rely on the basics. Generally,
there are four issues to consider when admitting any type of evidence. They are: 1)
authentication, 2) relevance and undue prejudice, 3) hearsay and 4) the best evidence or original
writing issues. This section will discuss the rules pertaining to each issue and offer examples of
how they might be used.
Authentication
The Texas Rules of Evidence 901-903 deal with authentication. At their core, the rules
requirement the proponent of the evidence to prove that it actually is what they claim it to be.
The threshold to accomplish this is fairly low. For example, witnesses can authenticate
photographs if they testify they have personal knowledge of what they depict and are accurate.
See Kirwan v. City of Waco, 249 S.W.3d 544, 549 (Tex. App.- Waco 2008), In re G.F.O., 874
S.W.2d 729, 731 (Tex. App.- Houston [1st Dist.] 1994, no writ). Circumstantial evidence can be
used to authenticate. See Sanchez v. Texas State Bd. of Med. Examiners, 229 S.W.3d 498, 509
(Tex. App. – Austin 2007, no pet.).
Rule 901 sets out illustrations of ways to authenticate evidence and include testimony of
a witness with knowledge, use of distinctive characteristics and evidence of a process or system.
This is a good place to start when trying to challenge or admit social networking evidence.
Consider how authentication could be used to challenge a print out of a chat room
discussion about issues in your case. For example, the chat room discussion alone may not
contain sufficient evidence for someone to identify who the participants were, when the
conversation occurred or what the subjects were discussing. Using 901, a party seeking to avoid
the admission of the transcript could argue that it is not authentic. In response, the proponent
could use the outline contained in 901(b)(6) concerning telephone conversations as a guideline to
develop authentication evidence.
First, consider the nature of what it is you are trying to admit into evidence. This will
help define the scope of your authentication challenge. For example, if you are trying to offer a
Facebook page photograph to identify someone, you need only to establish testimony that the
photograph depicts that person in a reasonably accurate manner. If you are trying to authenticate
an email, without the sender’s supporting testimony, consider tracing how the email moved
through the system. For example, testimony from someone identifying the email address, the
substance of the message that is unique to the sender, conduct by the sender consistent with the
23
email message or corresponding information found on the sender’s own computer may be
enough to authenticate the message.
Rule 902 deals with self-authentication but neglects to specifically mention social
networking or internet evidence. However, the rule does discuss official publications, trade
inscriptions and newspapers and periodicals. Could this rule be used to prove up data from
government-run websites and on-line periodicals? There are no cases on point but strong
arguments could be made that the rule would support such a conclusion.
Case law interpreting the rule requires evidence from which a reasonable juror could find
that the material being offered is what the proponent claims it to be. Beware that the evidence
supporting this offer, i.e. the evidence of authentication, must itself be admissible in evidence. In
other words, avoid using hearsay or inadmissible evidence to support your authentication offer.
What happens if you believe that internet evidence against your client is not authentic?
For example, photographs can be altered using Photoshop and other similar tools to obscure or
erase relevant details. If you believe that a photo has been altered, the burden is on you to object
and provide the court with some evidence support your claim. See Kingsbury v. State, 14 S.W.3d
405, 407 (Tex. App. – Waco 2000, no pet.). Minor discrepancies go to the weight given the
evidence. To exclude it requires evidence of tampering or other fraud. See Druery v. State, 225
S.W. 3d 491, 503-4 (Tex. Crim. App. 2007).
Consider using pre-trial methods to overcome these authentication issues. For example,
Texas Rule of Civil Procedure 193.7 makes production of a document during discovery selfauthenticate the materials against the party producing it. Also, consider using admissions,
deposition testimony or interrogatory requests to force an opponent to authenticate internet
evidence.
Authentication under the Federal Rules
Authentication under the Federal Rules follows a similar logic. The Federal Rules
Advisory Committee acknowledged years ago that ancient document and authentication rules
should be extended to include electronically stored data. Consequently, the standard for
authenticating electronic evidence is substantially the same as authenticating other types of
physical evidence such as documents or handwriting as aforementioned. Authentication will
usually take the form of testimony by an individual with direct knowledge that the produced
evidence is what it purports to be under Federal Rule 901(b). Accordingly, a witness who
testifies on the authenticity of electronic evidence does not need to present any special
qualifications or expertise on the programming or technical operation of the program, but merely
requires first-hand knowledge of the program or technology presented. Although this places a
24
burden on the party wishing to introduce electronic evidence to find someone who can testify to
the operation of the technology involved, the Federal Rules are open to providing a mechanism
for the authentication of electronic evidence.
Relevance and undue prejudice
Many of the cases currently on the books deal with objections that social networking
materials contain unduly prejudicial evidence. This objection has been raised when a witness or
party places highly incriminating evidence on their own sites and then seek to avoid its effect
during trial. Some of these cases are described in more detail in the section discussing current
cases. In general, however, few courts seem willing to keep the evidence out just because it is
very damaging.
Texas Rule of Evidence 403 provides the basis for an unduly prejudicial objection. The
rule states that relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. The
cases dealing with this rule make it clear that this is a difficult burden to establish. Courts have
held that just because the evidence is persuasive, does not mean it is to be excluded. “Testimony
is not inadmissible on the sole ground that it is ‘prejudicial’ because in our adversarial system,
much of a proponent’s evidence is legitimately intended to wound the opponent.” See Bay Area
Healthcare Group v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). The rule carries a presumption
that relevant evidence will be more probative than prejudicial. See Murray v. TDFPS, 294
S.W.3d 360, 368 (Tex. App.- Austin 2009, no pet.). Generally, courts have held relevant
evidence inadmissible where it was cumulative or repetitive of other evidence on the same
subject. For example, multiple autopsy photographs, settlement history of other similar suits, and
evidence of insurance coverage for the claims have been held prejudicial.
Many lawyers I have talked to after giving this speech have asked about challenges to
incriminating or embarrassing photographs of witnesses or parties found on their personal
websites. Most assume, simply because they have the photograph, that the evidence is
admissible. But, if the incident depicted is not shown to have some relevance to the case, don’t
be quick to assume it is admissible. Take into account the limitations on character evidence
found in Rule of Evidence 404 which limits evidence of a particular trait to prove conformity on
a specific occasion. Also consider if your own questioning of a witness or party could potentially
25
open the door to challenges from the other side. I once had an expert witness in a legal
malpractice case testify that the defendant had a sterling reputation as evidenced by the many
achievements he listed on his website. This opened the door to previously excluded evidence that
the same lawyer had been sanctioned by the disciplinary committee and judges for unethical
conduct in the case. Had the defense attorney not opened the door himself, this damaging
testimony would never have been heard by the jury. The same threat exists if your client testifies
in a manner consistent with claims or depictions they have made on their social networking sites.
Hearsay
The Texas and Federal Rules of Evidence deal with hearsay in very similar manners.
Generally, reliability and accuracy are the focus with a preference for live testimony in court
over statements made outside the parties’ abilities to challenge.
Texas Rule 801 defines hearsay as a “a ‘statement’ is (1) an oral or written verbal
expression or (2) nonverbal conduct of a person, if it is intended by the person as substitute for
verbal expression.29 A “declarant” is defined merely as a person who makes a statement. What is
not included in the rule are expressions made by non-persons, i.e. computers. The Texas rules do
not make any specific reference to social networking or internet evidence.
For example, if you are trying to offer information from someone’s Facebook, Myspace
or Twitter statements may be challenged with hearsay objections. Since many statements, like
personal updates, are often time-stamped you could consider using 803 (1-2) present sense
impression or excited utterance exceptions to overcome an objection. If the statement helps
refute a claim for damages, i.e. “I feel great” when the declarant is claiming disabling injuries
prevent them from enjoying life, consider 803(24) statement against interest exceptions.
Similar challenges are available under the Federal Rules. Under Rule 801(d)(2) an
admission by a party-opponent is admissible as “non-hearsay.” According to the Advisory
Committee to the Rules, admissions do not qualify as hearsay simply because fairness requires a
party to take responsibility for something that he or she said, and therefore, a party cannot claim
that the statement is untrustworthy. Instead, the party who made the admission now has the
burden of explaining to the trier of facts (judge or jury) why the statement is unreliable. A party
29
Note: the Federal rule counterpart, 801, contains very similar language.
26
cannot offer its own admission — it must only be offered by the party-opponent at the time of
trial.
Best evidence
Texas Rules of Evidence 1001-1007 deal with the requirement of original or “best
evidence.” Again, none of the rules deals specifically with social networking or internet related
evidence but does provide a framework to consider when trying to admit that evidence. Courts in
some other states have used similar rules to determine the admissibility of chat room transcripts
and email chains. The primary issue is how to take what only appears on a computer monitor
screen and turn it into something that can be presented to the jury.
Rule 1001(d) allows the use of a “duplicate” which is described as “a counterpart
produced by the same impression as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately
reproduce the original.” Similarly to the discussion about authentication, this threshold requires
the evidence to be sponsored by someone who can vouch for the duplicate’s accuracy.
An interesting challenge under this area involves efforts to offer earlier versions of
websites. There are search engines that have the ability to pull up prior versions of a website, in
some cases containing materials that have been removed from the current sites. This evidence
can be helpful to prove a parties’ prior knowledge of a condition or representations about their
services. I recently used old versions of a hospital’s website to challenge its expert witnesses
about representations of the quality of the services provided in a neonatal intensive care unit.
You can find this evidence by using sites like Web.Archive.Org. Simply place the web address
of the site you are interested in checking into the site and it will generate a list of earlier versions
of it. From there, you can print off or record the prior versions of the site. In my case, the
defendant tried to argue that the earlier versions were not accurate and threatened a challenge
under the best evidence rule, among other objections. Ultimately, we were able to overcome the
threats by having the hospital’s own experts ratify that the representations were true and
accurate.
Other Uses of Social Networking Evidence
Jury Selection
Because information on social networks can be so personal and so revealing, it has
become a tool for litigators preparing for jury selection. Many jury consultants use the sites to
mine for information on potential jurors before voir dire begins. Start by getting the juror’s name
and entering it into search engines. If they have public personal profiles, you can obtain a very
personal and unmitigated look into the person’s beliefs, likes and dislikes. This type of search is
quickly replacing money spent on private investigators to look into the background of potential
27
jurors. For the time and nominal expense of an internet search, you can often obtain just as much
information as a more expensive private investigator might find.
Current Texas Social Networking Cases
A general search using the terms Facebook, Myspace or social networks in Westlaw
reveals only a handful of Texas cases. The majority are related to family law issues. In most of
the reported cases, the issues tend to focus on the prejudicial impact of the evidence rather than
the nuts and bolt elements for admitting it into evidence.
Hernandez v. State, 2010 WL 2099220 (Tex. App. – San Antonio 2010).
This criminal sexual solicitation and assault case concerned a challenge to the admission
of evidence from a MySpace page. The defendant tried to offer pages from the victim’s MySpace
page to show that she participated in sexual activities before her encounter with him. The
MySpace page included a picture of the victim with her boyfriend taken at school some time
after the incident with the defendant. The picture included a caption that read “omg how nasty i
get it all the time jeje.” The defendant claimed this was relevant to prove that the victim was
sexually active before his encounter with her and that she fabricated the accusation against him.
The trial court refused to admit the evidence and the appellate court upheld the decision. It wrote
that the defendant failed to show the context of the MySpace page and that, without it, the
evidence was potentially misleading. The Court wrote:
“We are left to speculate as to what the caption refers, the nature of its intended
meaning, and whether it was written in jest. Even if we take the caption to imply
what appellant asserts it implies-that B.M. was sexually active prior to the
solicitation-we disagree that the implication makes it more likely that B.M.
fabricated the allegation of solicitation. Moreover, because the picture was taken
after the solicitation, the caption also was posted after the solicitation. Therefore,
the caption has no specific relevance to B.M.’s knowledge of sexual terms before
her encounter with appellant. For these reasons, we conclude the evidence is
irrelevant, the trial court did not abuse its discretion in refusing to admit it, and its
exclusion did not violate appellant's constitutional rights.”
This rationale may be helpful to follow if an opponent seeks to offer damaging but
potentially unrelated social networking evidence against your client.
Mann v. Department of Family and Protective Services, 2009 WL 2961396
(Tex.App.-Houston [1 Dist.], 2009)
This family law case helps illustrate how people can willingly post damaging evidence on
social networking sites. The case involved a claim that a mother had endangered her child’s
physical and emotional well-being by drinking alcohol while she under the legal drinking age.
The woman posted several pictures on her MySpace page showing her drinking or intoxicated.
The pictures were captioned “At Ashley House Dranking it Up” and “Me Helping Ashley Stand
28
Up, Were Both Drunk.” Other photos on the site depicted her inside a local bar. To refute her
claims that she was not drinking at the bar, CPS offered the captions of the photos which said”
Me Dancing my ass off, I can dance when I drunk,” “Yall see how much we Dranked plus the
one’s that droped on the floor,” and “We were all fucked up.”
The young woman admitted that she had posted the pictures to her MySpace page and
identified herself and her friends in the photographs. In re K.E.L., 2008 WL 5671873 (Tex. App.
– Beaumont 2009)
A party to a family law case involving a custody dispute introduced evidence of sexually
explicit statements contained on the opposing party’s MySpace page to help prove he was not fit
to raise the children. The trial court allowed the evidence in and relied upon it to award primary
custody of the children to the other parent. While there was no fight about admissibility, the
parent making the statements claimed that they were not relevant to his ability to care for the
children and should not have been introduced into evidence. The appeals court disagreed and
found that this, and other evidence, supported the trial court’s custody decision.
Munoz v. State, 2009 WL 695462 (Tex. App. – Corpus Christi 2009)
A criminal law case in which the state offered evidence from the defendant’s MySpace
page to prove that he was engaged in gang-related activity. Evidence that his actions were gangrelated carried a multiplier to the potential sentence the defendant could face. The defendant
posted pictures of himself on MySpace showing him with several other individuals who were
known to be members of a gang and photos of the defendant exhibiting gang-related handsigns
and wearing gang-related clothing. The State sponsored the evidence through a police
investigator assigned to a special gang unit. The officer testified about how he found the
materials through an internet search, how he confirmed the identity of the individuals in the
photographs and how they were involved in gang activities and testified about his knowledge of
the gang culture and how the signs and clothing in the photographs were related to the gang.
This case is interesting because it demonstrates one way to prove up photographic
evidence from a social networking site in a situation where the target does not assist in
authenticating or describing the evidence. Of note are the careful steps the State took to provide
testimony about how the materials were collected, how the individuals in the photos were
identified and how the content of the photographs were interpreted.
Draker v. Schrieber, 271 S.W.3d 318, (Tex. App. – San Antonio 2008, no writ).
This case dealt with a civil suit brought by a high school vice principal against two
students and their parents related to a fictitious MySpace page. The students were accused of
faking a MySpace page that purported to be posted by the vice principal. The page contained
explicit sexual content about the woman and was written to imply that she had posted it herself.
The vice principal sued the students and their parents for libel, defamation and intentional
29
infliction of emotional distress. The claims were dismissed on summary judgment for failing to
provide evidence to support the high burden required under Texas law required for intentional
infliction of emotional distress.
In Re Rodney Reed, 2009 WL 97260 (Tex. Crim. App. 2009) (not reported)
The Texas Court of Criminal Appeals dealt with a case where pages from a defendant’s
MySpace page were offered as evidence. The defendant filed an appeal of a capital murder
conviction claiming that the investigating officer had a history of violence. He sought to
introduce MySpace pages containing sexually explicit and violent images that he claimed were
created by the officer. The Court did not allow introduction of the evidence because the
defendant could not sufficiently demonstrate that they were in fact created by the officer. The
defendant produced evidence showing the pages were created by an individual named
“pointman-1” who was listed as a “34-year old, 5’11”, straight white male, Swat operator in
Texas. The court concluded that, even though the descriptive information was similar to the
officer, there was not enough to prove he created the page and did not allow the evidence.
Williford v. State, 127 S.W.3d 309 (Tex. App.-­‐ Eastland 2004)
The court upheld the use of “Encase®”, a software program that allowed tracking of a
user’s internet and computer use history.
Social Networking Cases outside of Texas
Courts in other states have also started looking at issues concerning the use of evidence
from social networks. Here is an overview of recent cases on a variety of topics from other
states.
State v. Altajir,
(Conn. App. 2010)
123
Conn.App.
674,
---
A.2d
----,
2010
WL
3489049
A criminal case where defendant challenged the revocation of her probation. The
defendant had been convicted of driving while intoxicated. As part of her probation, she was
required not to leave the state and not drive while intoxicated. The State offered photographs
from her Facebook page that depicted her drinking alcohol and attending parties outside of the
state. While the State conceded that the photos did not depict the defendant drinking and driving,
it argued that they could infer that the defendant had violated the probation terms and that she
had not learned from her mistakes. The Defendant objected that the photographs were
cumulative and inflammatory. She also claimed that she was denied due process under the
federal constitution because the court admitted unreliable Facebook evidence. She contended that
because the dates the photographs were “posted” on the Facebook page do not indicate when
they were actually taken, the photographs were unreliable because it could not be confirmed that
they were taken while she was on probation.
The Court was not persuaded by the Defendant’s arguments and allowed the photographs
into evidence. The Defendant’s probation was revoked and she was sentenced to jail.
30
Jabbar v. Travel Services, Inc., 2010 WL 3563112 (D.Puerto Rico, 2010)
The case involved claims of a hostile workplace and discrimination by an employee
against her employer. The plaintiff claimed she was subjected to racial jokes and harassment,
some of which was contained in photographs taken at a company outing. The defendant
company regularly posted the photographs of its employees’ activities on its Facebook page. The
plaintiff claimed that the defendant encouraged the harassment by allowing its employees to
upload the photographs on its Facebook page.
The Facebook photographs were offered by the plaintiff over her testimony that it was the
company’s general practice to load the photographs after every company outing. Otherwise, the
plaintiff offered no other evidence to support the photographs or the author of the Facebook site.
The Court held that it could not be proved from the plaintiff’s testimony alone that the company
created the Facebook site, that it was company policy to upload the photographs or that the
company condoned the use of Facebook during company time. The record also demonstrated
that, after the plaintiff complained about its content, the defendant company instructed its IT
consultant to block access to Facebook for all office computers.
Griffin v. State, 192 Md.App. 518, 995 A.2d 791 (Md.App., 2010)
This case contained an interesting discussion of issues concerning authentication of social
networking evidence including instant messaging and chat room transcripts. The court held that
statements from a chatroom could be authenticated by reference to the user’s profile that
accompanied them. The state offered testimony that the profile listed the same date of birth as
the defendant, referenced her having a boyfriend with the same nickname as the boyfriend she
described in her own testimony and produced testimony from a police officer that compared the
profile picture with a photograph of the defendant.
After losing on the authentication challenge, the defendant argued that the evidence
should have been excluded because its prejudicial effect was too severe. The Court overruled
both objections and admitted the evidence.
I have reproduced a significant portion of the case below because it does an interesting
job of reviewing issues that could pertain to any social networking evidence.
We have found only a handful of reported cases involving evidence specifically
pertaining to social networking Web sites. See, e.g., A.B., supra, 885 N.E.2d 1223
(holding that a juvenile's profane messages criticizing disciplinary actions taken
by her former school principal, which she posted on her MySpace profile and on a
MySpace group page, were protected political speech); In re K. W., 192 N.C.App.
646, 666 S.E.2d 490, 494 (2008) (concluding that victim's statements on her
MySpace profile were admissible as prior inconsistent statements to impeach her
testimony, but that exclusion was harmless error); In re T.T., 228 S.W.3d 312,
322-23 (Tex.Ct.App.2007) (involving a termination of parental rights proceeding,
in which the court considered a father's statement on his MySpace profile that he
31
did not want children). Our research reveals only one reported decision directly
resolving an authentication challenge to evidence printed from a social media
Web site. However, it involved a printout of MySpace instant messages rather
than a MySpace profile page, and was authored by a trial court; we have not
found a reported appellate decision addressing the authentication of a printout
from a MySpace or Facebook profile.
In Ohio v. Bell, 145 Ohio Misc.2d 55, 882 N.E.2d 502, 511 (C.P.2008), aff'd, No.
CA2008-05-044, 2009-Ohio-2335, 2009 WL 1395857, 2009 Ohio App. Lexis
2112 (Ohio Ct.App. May 18, 2009), the trial court denied a defense motion to
exclude printouts of MySpace instant messages alleged to have been sent to a
victim by the defendant under his MySpace screen name. It pointed to the dearth
of authority on the “important issue” of authenticating printouts of electronic
communications. Moreover, it was not persuaded by the defense complaints “that
MySpace chats can be readily edited after the fact from a user’s homepage” and
that, “while his name may appear on e-mails to T.W., the possibility that
someone else used his account to send the messages cannot be foreclosed.” See id.
at 511-12. The trial court emphasized that the evidence required to meet the
authentication threshold for admissibility “is quite low-even lower than the
preponderance of the evidence,” and observed that “[o]ther jurisdictions
characterize documentary evidence as properly authenticated if ‘a reasonable
juror could find in favor of authenticity.’ ” Id. at 512 (citing United States v. Tin
Yat Chin, 371 F.3d 31, 38 (2d Cir.2004)).
After reviewing the evidentiary proffers, the court concluded that the MySpace
chat logs could be authenticated “through [the alleged victim’s] testimony that (1)
he has knowledge of defendant’s ... MySpace user name, (2) the printouts appear
to be accurate records of his electronic conversations with defendant, and (3) the
communications contain code words known only to defendant and his alleged
victims.” Id. Moreover, the court held that “evidence of electronic conversations
between defendant and the alleged victims would be relevant under Evid.R. 40”
and that, “[u]pon testimonial development of the ‘code language’ at issue, the
probative value of these messages would outweigh any prejudicial effect.” Id.
Bell is consistent with other decisions affirming the admission of transcripts of
chat room conversations on the basis of similar authenticating testimony by the
other party to the online conversation. See, e.g., United States v. Barlow, 568 F.3d
215, 220 (5th Cir.2009) (Internet chat logs of correspondence between defendant
and police contractor posing as minor were adequately authenticated through
contractor’s testimony); United States v. Gagliardi, 506 F.3d 140, 151 (2d
Cir.2007) (concluding that chat room logs were authenticated as having been sent
by defendant through testimony of persons who participated in the online
conversations); United States v. Tank, 200 F.3d 627, 630-31 (9th Cir.2000)
(concluding that content of conversation was sufficient to link defendant to user
name on chat room log printouts); State v. Glass, 146 Idaho 77, 190 P.3d 896, 901
(Ct.App.2008) (finding that chat room statements were adequately linked to the
32
defendant by evidence that he arrived for a meeting as arranged in that private
correspondence), rev. denied, No. 31422, 2008 Ida.App. Lexis 117 (Idaho August
11, 2008); In re F.P., 2005 PA Super 220, 878 A.2d 91, 95-96 (2005) (holding
that evidence regarding content and timing of threatening instant messages was
sufficient to authenticate them, and rejecting the argument that anonymity of
electronic messages makes them inherently unreliable).
To be sure, profile information posted on social networking Web pages differs
from chat logs of instant message correspondence conducted through such sites. A
chat log is a verbatim transcript of a private “real time” online conversation
between site members, which can be authenticated by either of the two
participants. In contrast, social networking profiles contain information posted by
someone with the correct user name and password, with the intent that it be
viewed by others. Therefore, a proponent should anticipate the concern that
someone other than the alleged author may have accessed the account and posted
the message in question. Cf., e.g., In re K.W., 192 N.C.App. 646, 666 S.E.2d 490,
494 (2008) (although victim admitted that the proffered MySpace page was hers,
she claimed that her friend posted the answers to the survey questions that
defendant sought to introduce as impeachment evidence with respect to her claims
of rape). See also St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773,
774-75 (S.D.Tex.1999) (“There is no way Plaintiff can overcome the presumption
that the information he discovered on the Internet is inherently untrustworthy.
Anyone can put anything on the Internet ... hackers can adulterate the content on
any website....”).
A pseudonymous social networking profile might be authenticated by the profiled
person, based on an admission. That did not occur here, however, because the
State never questioned Ms. Barber about the profile. Nevertheless, we regard
decisions as to authentication of evidence from chat rooms, instant messages, text
messages, and other electronic communications from a user identified only by a
screen name as instructive to the extent that they address the matter of
authentication of pseudonymous electronic messages based on content and
context. We see no reason why social media profiles may not be circumstantially
authenticated in the same manner as other forms of electronic communication-by
their content and context. Accord Minotti, supra, at 1061-62 (“cases that did not
address social networking web sites specifically but addressed Internet
communication devices similar to social networking web sites, such as instant
messaging and email, are helpful because of the argument presented for the denial
of admissibility ... such as ... problems with authentication”).
The inherent nature of social networking Web sites encourages members who
choose to use pseudonyms to identify themselves by posting profile pictures or
descriptions of their physical appearances, personal background information, and
lifestyles. This type of individualization may lend itself to authentication of a
particular profile page as having been created by the person depicted in it. That is
precisely what occurred here.
33
The MySpace profile printout featured a photograph of Ms. Barber and appellant
in an embrace. It also contained the user’s birth date and identified her boyfriend
as “Boozy.” Ms. Barber testified and identified appellant as her boyfriend, with
the nickname of “Boozy.” When defense counsel challenged the State to
authenticate the MySpace profile as belonging to Ms. Barber, the State proffered
Sergeant Cook as an authenticating witness. He testified that he believed the
profile belonged to Ms. Barber, based on the photograph of her with appellant;
Ms. Barber’s given birth date, which matched the date listed on the profile; and
the references in the profile to “Boozy,” the nickname that Ms. Barber ascribed to
appellant. The defense never recalled Ms. Barber to dispute the accuracy of
Cook’s testimony.
Appellant relies on two out-of-state cases to suggest that printouts from such
social networking sites must be authenticated either by the author or expert
information technology evidence, neither of which occurred here. We are not
persuaded. The unpublished Florida decision cited by appellant lacks persuasive
value. The other case, In re Homestore.com, Inc. Securities Litigation, 347
F.Supp.2d 769 (C.D.Cal.2004), involved a ruling that printouts from a corporate
Web site were properly excluded in securities litigation because there was no
authenticating evidence from the company's “web master or someone else with
personal knowledge....” Id. at 782. In our view, the case is not instructive because
appellant never argued below that the printout did not accurately depict the
MySpace profile in question. Moreover, printouts from a company-created and
controlled Web site differ materially from printouts from a social networking
profile, in that site members create and control their own individual profiles.
On the record before us, we have no trouble concluding that the evidence was
sufficient to authenticate the MySpace profile printout. Therefore, the trial court
did not err or abuse its discretion in admitting that document into evidence.
Alternatively, appellant argues that the MySpace profile printout should have
been excluded “because its prejudice to appellant far outweighed its probative
value.” In his view, the probative value of the evidence was “minimal,” given that
the only change in Gibbs's testimony pertained to whether he saw appellant enter
the bathroom after Mr. Guest. On the other hand, appellant maintains that the jury
“undoubtedly” was influenced by the statement as “evidence of witness
intimidation,” making it possible that “the jury ... decided to find him guilty, at
least partly, for the purpose of sending a message regarding witness intimidation.”
Moreover, he contends that admission of the evidence could not have been
harmless error because, without it, “it is highly likely that the jury would have had
a reasonable doubt regarding appellant's guilt based on the evidence surrounding
Gibbs's involvement alone.”
Preliminarily, the State contends that appellant has not preserved his claim that
the probative value of the evidence was outweighed by the prejudice. It points out
34
that at trial Griffin “argued only that Gibbs' testimony was fundamentally
consistent, making the admission of the MySpace page unwarranted. Griffin,
however, made no other argument at trial regarding either the MySpace page's
relevance or its risk of introducing unfair prejudice, leaving all other arguments
regarding its admissibility unpreserved.”
Even if preserved, the State maintains that appellant's claim is without merit. In its
view, because the defense challenged Gibbs's credibility, the MySpace page had
“significant probative value in corroborating Gibbs' claim of threats,” and the
probative value was not “outweighed by any danger of unfair prejudice.”
The State argues:
To the extent that this Court addresses the merits of Griffin's claim, the trial court
acted within its broad discretion in admitting a redacted printout of the MySpace
page, which corroborated Gibbs's explanation that changes in his testimony
followed threats from Griffin's girlfriend. Because Gibbs testified at the second
trial to a crucial fact contrary to his previous testimony-namely, that he did see
Antoine Griffin enter the women's restroom, where the shooting occurred-the trial
court properly exercised its discretion in admitting the printout.
Assuming that the claim is preserved, we conclude that the trial court did not err
or abuse its discretion in failing to exclude the “SNITCHES GET STITCHES”
statement on Ms. Barber's MySpace profile on the basis of undue prejudice. We
explain.
[Under Maryland Rule 5-403, “[a]lthough relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury [.]” The task of balancing the
probative value of a particular item of evidence against its potential prejudicial
effect “is committed to the sound discretion of the trial judge.” State v. Broberg,
342 Md. 544, 552, 677 A.2d 602 (1996).
Gibbs’s credibility was a hotly contested issue at trial. The defense underscored
that Gibbs's testimony at the first trial was inconsistent with his testimony at the
second trial as to whether he saw appellant or George Griffin enter the bathroom
following Mr. Guest. Although the prosecution acknowledged the inconsistencies,
it offered Gibbs's explanation that Ms. Barber had threatened him before the first
trial.
Even if appellant had explicitly asked for exclusion under Rule 5-403, the record
indicates that the trial court reasonably exercised its discretion in deciding to
permit the State to present such evidence, for whatever value the jury might give
it, in support of its effort to explain the inconsistencies in Mr. Gibbs's testimony.
It is also salient that the trial court carefully redacted irrelevant material from the
profile and gave a detailed limiting instruction to the jurors, telling them that it
35
was up to them to weigh such evidence. We cannot say that exclusion on the
ground of undue prejudice was required under these circumstances.
Crispin v. Christian Audigier, Inc., --- F.Supp.2d ----, 2010 WL 2293238 (C.D.Cal.,
2010)
A commercial civil case where defendants sought aggressive discovery from thirdparties, including Facebook and Myspace. The defendants served subpoenas duces tecum on four
third-party businesses, including Facebook and Myspace, seeking basic subscriber information
and the content of all webmail and correspondence on those sites involving the Plaintiff. The
Plaintiff filed a motion to quash the subpoenas and argued that they sought electronic
communications that third-party Internet Service Providers are prohibited from disclosing under
the Stored Communications Act (“SCA”), 18 U.S.C. § 2701(a)(1); (2) that the subpoenas were
otherwise overbroad in that they required disclosure of information protected by the marital
privilege, the attorney-client privilege, the trade secret doctrine, and Plaintiff’s privacy rights.
The trial judge rejected each of Plaintiff’s arguments and concluded that the SCA did not
apply because that Act reaches only electronic communication service (“ECS”) providers and
third-party businesses are not ECS providers as defined in the statute. The judge also concluded
that the SCA prohibits only the voluntary disclosure of information by ECS providers, not
disclosure compelled by subpoena. Finally, the judge found that the SCA prohibits only the
disclosure of communications held in “electronic storage” by the ECS provider, and that the
materials were not in electronic storage as that term is defined in the statute.
The appeals court disagreed and reversed holding regarding the private messaging. It held
that, generally, the webmail and private messages were not subject to the subpoenas because they
were intended to be private. The court was troubled by requests for Facebook “wall” postings
since they might be viewed by anyone with access to the user’s profile page. (It is worth noting
that the evidence used to support this claim was based on a page printed from the Wikipedia
website.) The court held that further inquiry had to be made about the Plaintiff’s privacy settings
for his Facebook account to determine what materials would not be considered private.
“Given that the only information in the record implied restricted access, the court
concludes that Judge McDermott's order regarding this aspect of the Facebook
and MySpace subpoenas was contrary to law. Because it appears, however, that a
review of plaintiff's privacy settings would definitively settle the question, the
court does not reverse Judge McDermott’'s order, but vacates it and remands so
that Judge McDermott can direct the parties to develop a fuller evidentiary record
regarding plaintiff's privacy settings and the extent of access allowed to his
Facebook wall and MySpace comments.
With respect to webmail and private messaging, the court is satisfied that those
forms of communications media are inherently private such that stored messages
are not readily accessible to the general public. Thus, the court reverses Judge
McDermott’'s order with respect to the Media Temple subpoena and the Facebook
and MySpace subpoenas to the extent they seek private messaging.”
36
Bass ex rel. Bass v. Miss Porter's School, 2009 WL 3724968 (D.Conn., 2009)
A civil case where defendants filed a request for production seeking all documents
related to Plaintiff’s alleged teasing and taunting through text messages and on Facebook. The
request was directed at documentation of the Plaintiff’s former Facebook account. Plaintiff
asserted two objections claiming Defendants sought “the production of information that [is]
irrelevant and immaterial, and ... is not reasonably calculated to lead to the discovery of
admissible evidence,” and that “[Plaintiff’s] ability to produce responsive documents was
severely curtailed by Defendants’ actions in disconnecting the Plaintiff's access to her school
email and intranet access prior to the filing of this lawsuit.”
Plaintiff then served a subpoena on Facebook to get records of her former Facebook
account. Facebook and Plaintiff reached an agreement through which Facebook released
“reasonably available data” from Plaintiff's Facebook profile. The Court ordered the Plaintiff to
produce responsive documents for an in camera inspection. The Plaintiff provided the Court both
a complete set of the documents provided to Plaintiff by Facebook, which totaled more than 750
pages of wall postings, messages, and pictures and a copy of the subset of those documents that
were produced to Defendants, which totaled approximately 100 pages.
The Plaintiff failed, however, to outline for the court how she determined which
documents to produce to the Defendant and which she wanted to assert a privilege to. Without
this information, the Court found it impossible to assess the Plaintiff’s objections and ordered the
entire set of documents produced.
The Court offered an interesting sidebar about the nature of Facebook-related evidence.
“Facebook usage depicts a snapshot of the user’s relationships and state of mind
at the time of the content's posting. Therefore, relevance of the content of
Plaintiff's Facebook usage as to both liability and damages in this case is more in
the eye of the beholder than subject to strict legal demarcations, and production
should not be limited to Plaintiff's own determination of what may be “reasonably
calculated to lead to the discovery of admissible evidence.”
Maldonado v. Municipality of Barceloneta, 2009 WL 636016 (D.Puerto Rico, 2009)
This case reflects the growing pains associated with the new vocabulary created by social
networking evidence. It involved a protective order request after a witness was sent a Facebook
“friend” request by a defendant. The witness testified that the request intimidated her and the
plaintiff claimed the contact violated the federal witness tampering laws.
The two sides had trouble classifying the nature of the communication. The defendant
claimed the site was a blog, the plaintiff claimed the message was an email. The court recognized
the novelty of the new forms of communication.
37
“There also appears to be confusion as to the classification of the message in
question. Defendants incorrectly claim the message constitutes a “blog.” See
Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F.Supp.2d 1205, 1209 n. 3
(D.Nev.2008) (defining a blog as “[a] frequently updated web site consisting of
personal observations, excerpts from other sources, etc.”); see also Indep.
Newspapers, Inc. v. Brodie, 2009 WL 484956, at *3 (Md. Feb. 27, 2009);
Plaintiffs incorrectly claim the message constitutes an e-mail. See Am. Civil
Liberties Union v. Reno, 929 F.Supp. 824, 834 (E.D.Pa.1996); This type of
communication, a message sent on Facebook, a “social networking website,”
which has not been considered by this circuit or in any other circuit to the court's
knowledge, is likely a hybrid of the two. Connectu LLC v. Zuckerberg, 522 F.3d
82, 86 (1st Cir.2008). The message in question is clearly in the latter category:
messages sent to a user's Facebook inbox are not publicly viewable. Thus, they
are not in the “public domain,” where First Amendment rights might attach.”
Cases of General Interest
Email Authentication
U.S. v. Sidiqui, (11th Cir. 2000) 235 F.3d 1318.
E-­‐mails introduced into evidence over defendant hearsay and improper authentication objections.
Court analyzed the authentication issues under traditional evidentiary standards. (FRE 901(a) and
901(B)(4).) Contains good discussion of circumstantial evidence of authenticity but no
discussion as to the technical aspects of e-­‐mail. As to hearsay objection, the e-­‐mails were
considered admissions of a party. (FRE 801(d)(2)(A).)
People v. Von Gunten, (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished.]
Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with
a deadly weapon, hard copy of e-­‐mail messages (Instant Messages) between one of his friends
and the victim’s companion, as there was no direct proof connecting victim’s companion to the
screen name on the e-­‐mail messages.
On-line Evidence Admissibility
United States v. Brand, 2005 WL 77055 (S.D.N.Y. January 12, 2005).
Chat transcript of AOL instant messages admissible since it was sufficiently similar to the
charged conduct.
Hammontree v. State, (Ga. Ct. App. 2007) -­‐-­‐-­‐ S.E.2d -­‐-­‐-­‐-­‐, 2007 WL 547763
Where the victim testified that she was an ‘actual participant’ in the IM conversation and
confirmed its contents, the IM ‘transcript’ was properly authenticated.
U.S. v. Burt, (7th Cir.,July 26, 2007) 495 F.3d 733
Logs of a Yahoo! chat were admissible when properly authenticated.
38
Lorraine v. Markel American Insurance Company, (D.Md. May 4, 2007) 241 F.R.D. 534.
Case provides a comprehensive analysis of how to authenticate digital evidence such as digital
photos, email and text messages.
People v. Hawkins, (June 2002) 98 Cal.App.4th 1428. Court addresses California Evidence Code
section 1552 [printed representation of computer information or a computer program is presumed
to be accurate]. Court noted "the true test for admissibility of a printout reflecting a computer’s
internal operations is not whether the printout was made in the regular course of business, but
whether the computer was operating properly at the time of the printout."
EEOC v. E.I dupont de Nemours & Co., 2004 WL 2347559, 65 Fed. R. Evid. Serv. 706,
Printout from Census Bureau web site containing domain address from which image was printed
and date on which it was printed was admissible in evidence.
Telewizja Polska USA, Inc., v. Echostar Satellite Corp., (N.D. Ill.2004) 2004 WL 2367740 [Not
Reported] Archived versions of web site content, stored and available at a third party web site,
were admissible into evidence under Federal Rule of Evidence 901. The contents of the web site
could also be considered an admission of a party opponent, and thus are not barred by the
hearsay rule.
Authentication of Screen Name
People v. Von Gunten, (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished.]
Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with
a deadly weapon, hard copy of e-­‐mail messages (Instant Messages) between one of his friends
and the victim’s companion, as there was no direct proof connecting victim’s companion to the
screen name on the e-­‐mail messages.
Introduction of Web Sites
EEOC v. E.I dupont de Nemours & Co., 2004 WL 2347559, 65 Fed. R. Evid. Serv. 706,
Printout from Census Bureau web site containing domain address from which image was printed
and date on which it was printed was admissible in evidence.
Telewizja Polska USA, Inc., v. Echostar Satellite Corp., (N.D. Ill.2004) 2004 WL 2367740 [Not
Reported] Archived versions of web site content, stored and available at a third party web site,
were admissible into evidence under Federal Rule of Evidence 901. The contents of the web site
could also be considered an admission of a party opponent, and thus are not barred by the
hearsay rule.
Bass v. Miss Porter’s Sch., 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009). In Bass the
Defendant school sought from the Plaintiff discovery of her alleged teasing and taunting on
Facebook. The Plaintiff objected to the Facebook discovery request on the following grounds:
1) The Facebook information was “irrelevant and immaterial” and was “not
reasonably calculated to lead to the discovery of admissible evidence;” and
39
2) “[Plaintiff’s] ability to produce responsive documents was severely curtailed by
Defendants’ actions in disconnecting the Plaintiff’s access to her school email and
intranet access prior to the filing of this lawsuit.”
After subpoenaing Facebook, Facebook agreed to produce “reasonably available data”
from the Plaintiff’s profile from January 1, 2008 to May 1, 2009. The Court ordered the Plaintiff
to produce 1) all responsive Facebook discovery to the Defendant and 2) everything produced
from Facebook to the Court for in camera review. The resulting production was 100 pages
(apparently printed out) to the Defendant and 750 pages produced to the Court. The Court was
frustrated with the Plaintiff’s attorney and stated the production offered “no guidance as to the
grounds or basis on which her counsel made the determination of which documents to produce to
Defendants.” The Court took direct aim Plaintiff’s claim the Facebook discovery was irrelevant
after reviewing the Facebook production by date, sender/recipient and subject matter. It found:
“The selections of documents Plaintiff disclosed to Defendants and those she
referred for in camera review reveal no meaningful distinction. Facebook usage
depicts a snapshot of the user’s relationships and state of mind at the time of the
content’s posting. Therefore, relevance of the content of Plaintiff’s Facebook
usage as to both liability and damages in this case is more in the eye of the
beholder than subject to strict legal demarcations, and production should not be
limited to Plaintiff’s own determination of what maybe “reasonably calculated to
lead to the discovery of admissible evidence.”
The Court overruled the Plaintiff’s objection to producing Facebook discovery, especially
in light of the fact the in camera production contained communications clearly relevant to the
lawsuit.
Texas Cases of General Interest30
Faxes
Tyson v. State, 873 S.W.2d 53 (Tex. App.-Tyler 1993, pet. ref’d) (fax of telephone co. records
properly authenticated).
Computer Printouts
Johnson v. State, 208 S.W.3d 478 (Tex. App.-Austin 2006, pet ref’d) (printout of letter stored on
computer properly authenticated; hearsay).
Emails and chat room transcripts
Bailey v. State, 2009 WL 4725348 (Tex. App.—Dallas 12/11/09)(party admission authenticated
“chat log”).
Varkonyi v. State, 276 SW3d 27 (Tex. App.—El Paso ’08, rev. ref’d)(“reply letter doctrine”
applied to authenticate email).
Shea v. State, 167 S.W.3d 98 (Tex. App. Waco 2005, pet. ref’d) (email).
Massimo v. State, 144 S.W.3d 210 (Tex. App.-Fort Worth 2004, no writ) (email).
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This list was compiled by Frederick C. Moss, Prof. of Law (Emeritus)Dedman School of Law
Southern Methodist University
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Kupper v. State, 2004 WL 60768 (Tex. App.-Dallas 2004, writ ref’d) (email).
Robinson v. State, 2000 WL 622945 (Tex. App.-Amarillo 2000, pet.ref’d) (email).
Ussery v. State, 2008 WL 269439 (Tex. App. Austin 2008, pet. ref’d) (email).
Websites
Burnett Ranches, LTD v. Cano Petroleum, Inc., 2009 WL 619590 (Tex. App.—Amarillo, Mar.
20, 2009)(website printouts NOT properly authenticated).
Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707 (Tex.App.-Austin 2000, rev. dismd)
(website printouts properly authenticated).
Digital video
Thierry v. State, 2009 WL 350626 (Tex. App.—Houston [1st Dist.] Feb. 12 2009) (unwitnessed
surveillance video properly authenticated).
Page v. State, 125 S.W.3d 640 (Tex. App.-Houston [1st Dist.] 2003, pet. ref’d) (digital video
recording authentication).
Automated computer-generated records
Haskins v. State, 2010 WL 2524797 (Dallas 6/24/10) (same).
Miller v. State, 208 S.W.3d 554 (Tex. App.—Austin 2006)(cell phone record not hearsay, but
not properly authenticated).
Stevenson v. State, 920 S.W.2d 342 (Dallas 1996, no pet.)(computer-generated records are not
hearsay).
Ly v. State, 908 S.W.2d 598 (Tex. App.-Houston [1st Dist.] 1995, no pet) (computer generated
electronic monitoring printout properly authenticated).
Chain of custody
Ex Parte Ysafi, 2000 WL 6740798 (Tex. App.—Beaumont 8/26/09).
Kingsbury v. State, 14 SW3d 405 (Tex. App.—Waco 2000, no pet.).
Ethical Issues related to Social Networking sites
The rise in social networking creates ethical and professional challenges for lawyers.
With no specific rules governing the sites, many may be tempted to ignore their common sense
when conducting online investigations. During this speech I have frequently been asked if it is
appropriate for a lawyer to use a surrogate or false on line presence to “friend” witnesses or
opponents. Since state bar associations are only beginning to examine lawyer’s ethical duties
while on line, there is a temptation to take chances. But the decisions coming out of other states
provides a warning that this type of behavior will not be tolerated.
First, Pennsylvania’s state bar ethical committee issued an advisory opinion in March
2009 addressing the appropriateness of using a third party to “friend” a subject involved in
litigation. The committee looked at the appropriateness of asking someone unrelated to the
lawyer’s staff to request access to the target’s social networking pages and then correspond with
the target in an attempt to solicit damaging evidence. The Pennsylvania committee questioned
whether this technique was a form of “deception in investigation” or whether it was similar to
efforts to surreptitiously videotape a subject while they went about in public. The committee held
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such actions would not be condoned. The committee concluded that the lawyer would be held
responsible for the actions of a third party used to gain access to a social networking site under
Pa. R. Prof. Cond. 5.3 (note: Pennsylvania’s ethical rules are patterned off the ABA Model
Rules). In other words, just getting someone else unrelated to the lawyer did not insulate him/her
from their actions. The Committee further noted that the conduct would violate other rules that
prohibited making a false statement of material fact to a witness.
Second, on September 25, 2010, the New York’s bar association published new
guidelines for online activities. It ruled that lawyers may use social network sites to gather
information about their opponents. The ruling stated that this was limited to sites that were open
to the public. It cited the Pennsylvania ruling to reiterate that creating fictional friends to gain
information would be considered unethical.
The Texas Rules of Professional Conduct contain language similar to that cited by the
Pennsylvania and New York associations. Rule 4.01 states:
Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a)
make a false statement of material fact or law to a third person; or
(b)
fail to disclose a material fact to a third person when disclosure is
necessary to avoid making the lawyer a party to a criminal act or
knowingly assisting a fraudulent act perpetrated by a client.
The Comment to the rule notes:
2. A lawyer violates paragraph (a) of this Rule either by making a false statement
of law or material fact or by incorporating or affirming such a statement made by
another person. Such statements will violate this Rule, however, only if the
lawyer knows they are false and intends thereby to mislead.
Such conduct could also run afoul of Rule 8.04 regarding misconduct. It states:
(a) A lawyer shall not:
(1) violate these rules, knowingly assist or induce another to do so, or do
so through the acts of another, whether or not such violation occurred
in the course of a client-lawyer relationship;
(3) engage in conduct
misrepresentation;
involving
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dishonesty,
fraud,
deceit
or
This section would likely make the lawyer ultimately responsible for the actions of the
third party. This section would also be invoked to remind the lawyer that they cannot use a third
party to engage in conduct that the lawyer would be ethically prohibited from doing as well.
The rule I would suggest following is to first consider whether the actions would be
considered appropriate if done in a context outside of a social networking site. For example,
would it be appropriate to misrepresent your identity to a witness in an effort to collect evidence?
If the disciplinary rules prohibit the conduct, chances are it is also going to be prohibited if the
only difference is that a social networking site is used to get the information.
Other considerations include using social networking sites to advertise a lawyer or a law
firm. In most cases, the pages on a social networking site will have to meet the ethical
requirements generally applicable to any lawyer advertising. Again, there are no rules directly
yet on point, but with the increasing number of lawyers using Facebook to tout their services an
opinion is all but inevitable.
New duty to advise clients?
A recent Canadian Leduc v. Roman, 2009 CanLII 6838 (ON S.C.) suggests that lawyers
there may commit malpractice if they do not counsel clients about the potential impact their
involvement in social networking sites can have on their case. The case involved a personal
injury matter where Facebook evidence was sought during discovery. Justice David Brown
offered an observation as part of his ruling:
“Given the pervasive use of Facebook and the large volume of photographs
typically posted on Facebook sites, it is now incumbent on a party’s counsel to
explain to the client, in appropriate cases, that documents posted on the party’s
Facebook profile may be relevant to allegations made in the pleadings.”
This reasoning could apply to any form of social networking medium, Twitter, postings
on YouTube, discussions in chat rooms or on online game forums. Given the rapid pace of
expansion of this technology and it’s constantly evolving uses, the potential exposure for clients
is vast.
Finally, be careful what you or your clients post on any social networking site. The safest
way to approach posting any information is to determine whether it is potentially damaging. If it
is, presume that the information is going to get out one way or another. Many lawyers now
require their clients to remove or deactivate any social networking site they have during the
pendency of the litigation. As unrealistic as this request may be, it may not solve the problem as
information from the pages can linger because of connections to other user’s pages.
It isn’t only clients that have to worry about what they post on their pages. Galvestonarea Judge Susan Criss reported a story about one lawyer who got into trouble in her court
because of a status update on a Facebook page. The lawyer had requested, and received, a
continuance of a matter before Judge Criss claiming that her father had died. But the lawyer, who
had previously “friended” the Judge, went on to post a string of Facebook updates detailing her
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week of partying and drinking with friends while she was allegedly in mourning. Needless to
say, the lawyer had some explaining to do at her next court appearance. Judge Criss has also
discussed seeing lawyers who have bragged about how much they were going to win in an
ongoing case or complaining about the actions of opposing counsel in most colorful terms.
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