Avoiding the Blind Spots:

Transcription

1 Avoiding the Blind Spots: Evidentiary Issues, Exhibits, Experts, and Trial Strategies The Honorable Stephen J. Murphy III U.S. District Court for the Eastern District of Michigan 231 West Lafayette Boulevard, Room 228 Detroit, MI (313) The Honorable Lita M. Popke Wayne County Circuit Court 2 Woodward Avenue, Room 907 Detroit, MI (313) lita.popke@3rdcc.org Patrick G. Seyferth Bush Seyferth & Paige, PLLC 3001 W. Big Beaver Road, Suite 600 Troy, MI (248) seyferth@bsplaw.com

2 The Honorable Stephen J. Murphy III is a federal judge in the United States District Court for the Eastern District of Michigan. Previously, Judge Murphy served as the presidentially appointed United States Attorney for the Eastern District of Michigan. Prior to his service as a United States Attorney, Judge Murphy was an attorney with General Motors Legal Staff, where he specialized in litigation, internal investigations, counseling on various business law issues, and other white collar matters. Judge Murphy began his legal career as a Justice Department lawyer for twelve years, including eight as an Assistant United States Attorney in Detroit. Judge Murphy received his Juris Doctor from St. Louis University and his Bachelor of Science degree from Marquette University. The Honorable Lita Masini Popke has been a judge in the Wayne County Circuit Court since She has a combined docket of General Civil and Business Court cases. Her prior service includes Chief Judge Pro Tem ( ), Executive Committee ( , 2016-present), Presiding Judge Family Division ( ), and Mediation Tribunal Association Board Member. She has also held various positions outside the Court including President of the Michigan Judges Association (2013); Member, Judicial Section of the State Bar of Michigan (2009-present); Member of the Child Support Leadership Council by appointment of the Michigan Supreme Court from 2004 through 2009; Member, Michigan Judicial Institute Academic Advisory Committee; SCAO Post-Judgment Docket Committee; Faculty member for the MJI New Judges Seminar; Member, State Bar subcommittee on Civil Discovery Scope; Member, SCAO committees ( Judicial Resources and Case Weights, Court Clerk Duties), Inn of Court and the Dads From Day One Advisory Board. Judge Popke has been an invited speaker on various topics at numerous conferences, seminars, and radio programs. Before joining the bench, Judge Popke was an appointed member of the State Board of Ethics, a Wayne and Oakland County mediator, and active in various community organizations. She currently serves on the Schoolcraft College Development Board Authority. She is a graduate of St. Mary s College, Notre Dame, Indiana and the University of Detroit School of Law. Patrick G. Seyferth is a founding Partner of Bush Seyferth & Paige PLLC BSP, a law firm of business-minded trial attorneys with a proven track-record of defending Fortune 500 clients in complex and high-exposure cases throughout the United States. BSP Law represents a wide range of clients in a variety of industries including: Fiat Chrysler Automobiles US LLC, FordDirect, PulteGroup, Mercedes- Benz USA, Merck, Volkswagen Group of America, U-Haul International, and Hyundai Motor Company. For the past 23 years, Patrick has successfully handled high-exposure product liability cases, commercial litigation, and class actions. Patrick has first-chaired catastrophic cases in 23 states and has tried cases to verdict in Michigan, Tennessee, Arizona, and New York. He frequently presents on topics including trial skills, social media, cybersecurity, autonomous vehicles, and other emerging technologies. Patrick graduated from the University of Michigan Law School and clerked for U.S. District Judge Robert H. Cleland. He resides in Rochester, Michigan with his wife and 5 children.

3 Avoiding the Blind Spots: Evidentiary Issues, Exhibits, Experts, and Trial Strategies Table of Contents I. Introduction...5 II. Authenticity...5 III. Video Conferencing and Testimony...6 IV. Jury Selection and Wi-Fi in the Courtroom...6 V. Technology in Opening and Closing Statements...8 VI. Conclusion...8 Avoiding the Blind Spots: Evidentiary Issues, Exhibits, Experts... Murphy et al. 3

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5 Avoiding the Blind Spots: Evidentiary Issues, Exhibits, Experts, and Trial Strategies I. Introduction In 2017, technology in the courtroom is hardly a novel topic, even for the most seasoned of litigators. But the speed at which modern technology has progressed, opening up new opportunities and challenges for the use of evidence and electronics at trial, may impress even the most up-to-date of attorneys. It is difficult to believe that the smartphone, for example, is just ten years old, so completely has it assumed a central position in everyday life. Along with these devices comes new opportunities for evidence and presentation, in the form of Facebook, Twitter, Instagram, and other social media sites that can, if used correctly, provide a rich source of material for the litigator as well as a rich set of novel legal issues for the pre-trial conference to sort through. II. Authenticity An attorney searching for evidence has more places to look than ever today: a person s life can be near-comprehensively catalogued in such social media sites as Facebook, Twitter, Instagram, through online photo and music sharing, and smart devices such as a FitBit. Social media evidence can provide powerful images and words to support your case; a common example being the auto accident plaintiff complaining of serious impairment, and the discovery of photos and videos of him running a marathon on his Facebook page. Of course, Federal Rule of Evidence 901 and the state equivalents all require evidence to be authenticated before admission. It can be a simple enough matter when the individual s face is clearly shown in a photo, see DiPerna v. Chicago Sch. of Prof l Psychology, 222 F. Supp. 3d 716 (N.D. Ill. 2016) (authenticating Instagram account when account had pictures of individual, with the same name, wearing a school shirt), but what is required to authenticate a photo of someone or something else you are trying to attribute to the plaintiff? For that matter, how can one authenticate words (or tweets)? (Common sense and common practice suggests that most of the tech-related questions of admissibility (evidence, presentations, etc.) discussed here can and should be handled pre-trial with well-argued motions in limine.) After all: On the internet, nobody knows you re a dog. The New Yorker, July 5, It is increasingly clear that courts are wary of accepting the attorney s word that a photo, post, or page belongs to an individual without more. In U.S. v. Vayner, 769 F.3d 125 (2d Cir. 2014), the Second Circuit held that a mere screenshot of a web page was insufficient to show that the web page was created by the individual in question, analogizing it to information with the individual s name found printed on a street flyer without proof the individual created the flyer. Id. at 132; see also Toytrackerz v. Koehler, 2009 WL , at *6 (D. Kan. Aug. 21, 2009); Linscheid v. Natus Medical, Inc., 2015 WL (N.D. Ga. Mar. 30, 2015). Likewise, in Smith v. State, 136 So. 3d 424 (Miss. 2014), even a Facebook account with the individual s name and a small photo resembling the individual, without more, was insufficient to authenticate the page. Id. at 433. In a different vein, the Third Circuit in United States v. Browne, 834 F.3d 403 (3d. Cir. 2016) recently rejected an effort to admit Facebook postings under Fed. R. Evid. 902 as self-authenticated records of regular business activity. The court held that an individual s chat logs, photos, and the like were not the same as regularly-conducted business activity under Fed. R. Evid. 803(6), and even a Facebook employee s testimony about the creation of the records was not sufficient to authenticate the records as substantive evidence. Id. at 411. Avoiding the Blind Spots: Evidentiary Issues, Exhibits, Experts... Murphy et al. 5

6 On the flip side, courts have accepted a variety of means of authenticating social media and digital evidence. Although a slightly lower-tech issue, the court in United States v. Kilpatrick, 2012 WL (E.D. Mich. Aug. 7, 2012) held that text messages could be authenticated not merely through testimony of a phone company employee, but through distinctive characteristics of the messages that served to identify them as having been sent by the individual such as personal signatures, ways of addressing family members, distinctive language patterns in combination with the individual s admission that he frequently texted the same subjects. Id. at *3-6. The same level of detail can easily be used to support the admission of similar text-only evidence. See, e.g., Sublet v. State, 442 Md. 632, 674 (Twitter messages). More obviously, the testimony of friends familiar with the individual and his social media presence can establish authenticity; the testimony of two of the individual s friends, having interacted with him through the Facebook page in question, and identifying photos with both the friend and individual, established authenticity. People v. Dunn, 2016 WL (Mich. Ct. App. May 12, 2016). Similarly, evidence that the messages in question were sent from computers near an individual s house, in conjunction with evidence the pattern of usage for the time the messages were sent matched the individual s uncontested usage (along with more traditional evidence such as motive and the fact messages were also sent to other friends of the individual) was sufficient to authenticate Facebook messages. United States v. Encarnacion-Lafontaine, 369 F. App x 710, 713 (2d Cir. 2016). (The most up-to-date of electronic discovery and evidence may be in smart devices wearable devices like the FitBit, or smarthome devices like Amazon Alexa, all which contain data that may turn into evidence.) III. Video Conferencing and Testimony One area where state courts have in many ways outpaced federal courts is in the routine use of videoconferencing during proceedings. For example, the Michigan Court Rules specifically permit two-way, interactive video conferencing for routine matters such as arraignment, pleas, show cause hearings, and adjournment of preliminary examinations. Mich. Ct. R (A); but see People v. Heller, 316 Mich. App. 314, 317 (2016) (criminal sentencing by teleconference not authorized by court rules). Many state courtrooms come standard with telephone or video conferencing-ready technology. In contrast, the federal rules generally do not provide specifically for video conferencing, and perhaps only sporadically in local rules. Interestingly enough, though, while the federal rules do not provide for routine, pre-trial video conferencing, Civil Rule 43 at least theoretically permits the taking of testimony during trial by videoconference. Nevertheless, the preference for live testimony remains strong: generally speaking, mere inconvenience, even a cross-country flight, is not sufficient to permit videoconference testimony. Scozzari v. City of Clare, 2012 WL (E.D. Mich. June 5, 2012). On the other hand, seriously ill witnesses, U.S. v. Benson, 79 F. App x 813 (6th Cir. 2003), or situations where serious security threats exist, Jennings v. Bradley, 419 F. App x 594 (6th Cir. 2011), can serve as good cause for videoconference testimony. (Videoconferencing in criminal cases must clear the higher hurdle of the Confrontation Clause. See Maryland v. Craig, 497 U.S. 836 (1990).) IV. Jury Selection and Wi-Fi in the Courtroom Certainly, any litigator worth her salt will conduct social media research on party opponents and key witnesses. But what about jurors? The now-routine access to cellular data on a smart phone and, in many cases, court-provided wi-fi provides more opportunities than ever for an attorney to research the jury pool before selection. (Time permitting; the writers experience in jury selection would give an attorney no more 6 Strictly Automotive September 2017

7 than a few minutes, in the courtroom, to perform internet research before empaneling. And obviously a courtroom that does not allow attorneys to use devices or computers, as a practical matter, would not allow internet juror research.) In Oracle America, Inc. v. Google Inc., 172 F. Supp. 3d 1100 (N.D. Cal. 2016), the district court engaged in a detailed, careful examination of the issues surrounding juror social media research. Initially, the court considered a request by the parties for a period of time between the selection of the jury panel and formal voir dire, and then engaged in a number of back-and-forths with the parties in an effort to construct an appropriate court order for jury selection. (Given the parties unique status as the operators of various internet and social media services, the additional concern was raised about whether the parties would use proprietary tools to gather additional information about potential jurors.) Eventually, the court issued a lengthy order pondering some of the opportunities and problems with juror social media research. Among other things, the court expressed its concern that jurors would wish to reciprocate and search the attorneys web presence, that even through cursory social media searches attorneys could discover information such as a juror s political or religious preferences, and that the attorneys would be able to improperly tailor their arguments to individual jurors preferences. Id. at The court ultimately permitted the attorneys to engage in social media research, but ordered them to inform the jury pool of that fact and the extent of their research before selection. Id. at While the issue is in many cases merely theoretically, at least a handful of instances have arisen where, for example, jurors really were Facebook friends with parties involved in the case. See, e.g., Slaybaugh v. State, 44 N.E.3d 111, 118 (Ind. Ct. App. 2015) (citing Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012). A related question is, once the jury has been empaneled, the extent to which parties or the court might continue to monitor juror social media use for improper juror activity. The Eastern District of Michigan articulated the belief that such monitoring by parties or the court might cause a chill in the willingness of future jurors to serve. U.S. v. Norwood, 2014 WL (E.D. Mich. May 6, 2014). From a rules perspective, American Bar Association Opinion 466 reflects what many courts have held: that passive searches through search engine type queries of jurors social media sites is permissible, but actively attempting to engage a juror on social media, e.g., friending a juror, (whether by deception or not) is out of line. Further, New York City s Bar Association also deems searches where, although passive, a systemgenerated notification, e.g. a LinkedIn notification of a search, would be a step too far as well. Ass n of the Bar of the City of N.Y. Comm. on Prof l Ethics, Formal Op And at least one court, the U.S. District Court for the District of Idaho has issued a comprehensive local rule regarding juror social media research. D. Idaho R Interestingly, in Oracle v. Google, Google stated it was willing to accept a complete ban on internet research of jurors, 172 F. Supp. 3d at 1102, and the court felt it was within its rights to order a ban, id. at But this is not universally held; although the trend is to place restrictions on what a lawyer may do, and leave the rest to the lawyer s judgment, at least some courts have considered whether an attorney s failure to conduct any research is a failure to zealously represent the client. For example, in Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010), the court held that attorneys were required to check potential jurors against the state s online case database to ensure a juror was not involved in related matters. Id. at 559 (making no holding regarding social media searches). Missouri eventually codified this into a court rule requiring such research. Mo. Sup. Ct. R This continues to be an evolving field, and it may be some time before courts settle on a uniform practice. Avoiding the Blind Spots: Evidentiary Issues, Exhibits, Experts... Murphy et al. 7

8 V. Technology in Opening and Closing Statements Technology in the courtroom also opens up new opportunities for a litigator to make her case. While once an attorney was restricted to what he could print on a display board, programs like PowerPoint and Trial Director make the visual part of opening and closing arguments just as integral as the attorney s words. Here, there is at least some continuity with previous technologies; many courts consider images projected by computer to be functionally identical to the printed display blowup routinely displayed during arguments for decades. See, e.g., State v. Sucharew, 205 Ariz. 16, 21 (Ct. App. 2003). (Although most cases noted are criminal, the rule that arguments cannot prejudice the jury and must reflect admitted evidence applies equally to civil trials.) Inadmissible evidence cannot be displayed during closing arguments on a computer screen anymore than an attorney could hand them to the jury. See, e.g., Spence v. State, 129 A.3d 212, 233 (Del. 2015). What about image editing? Overall, there is an emerging trend that while photos and images may be displayed, manipulation of the photograph is not permitted. A common example is superimposing the word GUILTY over a photo of the defendant. Courts have struck this for differing reasons. In State v. Walter, 479 S.W.3d 118 (Mo. 2016), the court concluded that a printed photo with the word GUILTY written on it would not be admissible, and therefore the display of such an image electronically was similarly inadmissible and inappropriate. Id. at 125. In a different vein, the court in Watters v. State, 313 P.3d 243 (Nev. 2013) held that the word GUILTY had to be considered as a statement by the prosecutor since a prosecutor could not declare a defendant guilty orally, neither could he make the same message visually. Id. at 248. Going further, although the display of previously admitted evidence is relatively uncontroversial, the nature of computer displays makes advanced presentation relatively easy: the juxtaposition of images of a defendant and criminal activity, guns, or drugs while each may be perfectly admissible, does the context render it inflammatory? Courts have considered a juxtaposition of images of a victim with that of the defendant, and images of the defendant with highly damaging quotes of his superimposed over it, to be out of line. State v. Walker, 182 Wash. 2d 463, 478 (2015). But the concurrence notes that in many cases, the material in a given slide was all admissible; many slides contained admitted photos of the defendant, with admitted direct quotes of the defendant superimposed. The concurrence agreed the presentation overall was prejudicial, but drew the distinction between mere combinations of admissible evidence and actual altered material. Id. at Although an attorney is probably safe sticking to displaying admitted evidence, there is room for some creativity in how it is displayed graphically, as well as some evolving standards as courts continue to try and clarify the limits of computer projections during arguments. VI. Conclusion The continued proliferation of internet and social media connected devices presents enormous opportunities and pitfalls for the modern litigator. Although courts continue to be, by design, working incrementally towards a unified or consensus approach to questions of admissibility and propriety, the decentralized nature of the American court system has permitted many courts to experiment with different levels of technology in evidence and in the courtroom; the modern litigator should continue to keep abreast of the latest developments to ensure she has the cutting edge in presenting and winning her case. 8 Strictly Automotive September 2017