Web 2.0 to the Rescue Using the Internet to Bolster Your Defense Christy M. Mennen Nilan Johnson Lewis 400 One Financial Plaza 120 South Sixth St. Minneapolis, Minnesota 55402 (612) 305-7520 (612) 305-7501 [fax] cmennen@nilanjohnson.com Return to course materials table of contents
Christy Mennen is a shareholder at Nilan Johnson Lewis and practices primarily in the areas of product liability, transportation, and commercial litigation. She has significant experience defending personal injury, wrongful death, and property damage claims and has key industry knowledge regarding recreational products, industrial machinery, and heaters and boilers. Christy serves on DRI s Young Lawyers Steering Committee and is a member of DRI s Commercial Litigation Steering Committee. She is active in her local defense organization and previously served as the chair of the Minnesota Defense Lawyers Association s New Lawyers Committee. Christy is licensed to practice in Minnesota and Wisconsin.
Web 2.0 to the Rescue Using the Internet to Bolster Your Defense Table of Contents I. Investigating Plaintiffs and the Allegations in the Complaint...817 A. Uncovering Plaintiff s On-Line Identity...817 B. Restricted versus Unrestricted Information...817 II. The Use of Internet Evidence during the Discovery Stage...818 A. Sample Interrogatories and Requests for Production of Documents...818 B. Authorizations for Release of Information...819 III. The Admissibility of Internet Evidence at Trial...819 A. Relevance (Rule 401)...819 B. Authenticity (Rule 901, 902)...819 C. Hearsay Rule (Rule 802)...820 D. Best Evidence Rule (Rules 1002, 1003, 1004)...820 E. Balance of Probative Value and Prejudicial Effect (Rule 403)...820 IV. Social Media in the Courtroom...821 Web 2.0 to the Rescue Using the Internet to Bolster Your Defense v Mennen v 815
Web 2.0 to the Rescue Using the Internet to Bolster Your Defense I. Investigating Plaintiffs and the Allegations in the Complaint A. Uncovering Plaintiff s On-Line Identity Millions of people now have on-line identities, which means that defense counsel can start investigating plaintiffs and the allegations in the lawsuit the minute they receive a copy of the complaint. On-line searches are particularly useful in cases involving a Generation X or Y plaintiff. These 20- or 30-something plaintiffs are likely to be a member of one of the popular social networking web sites such as myspace.com or facebook.com. With a click of the mouse, you may be able to see photos of the plaintiff, aliases, date of birth, relationship status, educational background, employment status, a list of family members and friends (who might have witnessed the incident leading to the lawsuit), and if you are lucky, photos of the incident and/or blogs or messages about circumstances related to the incident. Defense counsel should also consider running searches on Blogger.com, Twitter.com, LinkedIn. com, people.yahoo.com, icerocket.com, and of course, the advanced search option on google.com. And, if the plaintiff is a college student, you can search juicycampus.com or autoadmit.com, where students post gossip about other students on their college campus. To find out the plaintiffs shopping preferences, including their taste in books, movies and music, visit their wish list on amazon.com. Search youtube.com, snapfish.com and shutterfly.com for photos, videos and/or footage of an accident scene, events leading up to the incident or evidence that will help you counter the plaintiff s alleged damages. This information can be instrumental in creating your defense strategy, crafting discovery requests, building witness lists, and preparing for the plaintiff s deposition. Note that it is important to look for the information early, before the plaintiff has an opportunity to modify or delete it. If, however, you suspect that information has been deleted, visit www.archive.org to search for old versions of the web site. B. Restricted versus Unrestricted Information There are two types of on-line information: restricted and unrestricted. Whether you will be able to access someone s web page depends on the privacy setting that individual selected when creating the web page. Restricted web sites typically require a user name and/or password to access information. It is important to consider your ethical obligations when researching parties to a lawsuit. You should keep in mind that asking a represented party to be a friend on facebook.com, for example, constitutes impermissible contact under the Rules of Professional Conduct. Rule 4.2 of the ABA Model Rules of Professional Conduct provides: Communication with Person Represented by Counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. In addition, it is impermissible for a lawyer to have a third party send a friend request. The best way to obtain the information on a party s restricted social networking web page is to ask for it in discovery or during the deposition. Web 2.0 to the Rescue Using the Internet to Bolster Your Defense v Mennen v 817
If, however, access to the plaintiff s or the other parties web pages or information is unrestricted, it is not unethical to view it. See State ex. rel. State Farm Fire & Cas. Co. v. Madden, 451 S.E.2d 721, 730 (W. Va. 1994) (holding that lawfully observing a represented party s activities that occur in view of the general public is not a violation of any ethical rule). II. The Use of Internet Evidence during the Discovery Stage Because privacy settings and other restrictions will limit your access to the plaintiff s complete on-line identity, you will need to use the discovery process to gather additional information. You can use discovery requests to gain knowledge about which web sites the plaintiff visits, the frequency of those visits and the user name and passwords she uses. When relevant, consider discovery requests for information related to the plaintiff s e-mail accounts, e-mail addresses, and systems for managing or storing e-mails (Blackberry, Treo, iphone, etc.); videos the plaintiff has posted on web sites such as youtube.com, Google Video, Go Fish or Twango; on-line music-sharing or downloading on sites such as itunes; photo-sharing or storage on sites like shutterfly.com or snapfish.com; resume-drop or job search sites; postings or purchases on ebay or craigslist; blogs or discussion threads used by the plaintiff or witnesses; instant messaging services (and buddy lists); e-vites created and received; GPS history; and wireless cell phone providers, text messages, and list of cell phone contacts. A. Sample Interrogatories and Requests for Production of Documents 1) Identify any networking on-line or Internet services in which you have participated or visited in the last three years. For each, provide the name you used to identify yourself (including your display name) and with which you registered for the account, how long you have been a participant or member and the best way to find you if conducting a search on the web site. 2) Identify all on-line or Internet dating services in which you have participated or visited in the last three years, including eharmony, DateJdate, PerfectMatch, Lavalife, Match, Matchmaker, and AmericanSingles, and provide the name you used to identify yourself and with which you registered for the account, how long you have been a member and the best way to find you if conducting a search of the web site. 3) Identify any friends you have invited to your networking page or who have invited you to his or her networking page who may have personal or secondhand knowledge regarding any of the circumstances underlying the allegations of your complaint. 4) Describe the frequency with which you have accessed or logged in to each networking service (number of times per day, week, month, or year). 5) Identify all Internet service providers you have used in the past five years. Include your account number for and physical and IP address associated with each. 6) Provide the Internet address for all web sites that you have created yourself, have paid or have requested to have created, and/or that you have played any role in the maintenance of in the last five years. 818 v DRI Annual Meeting v October 2010
B. Authorizations for Release of Information In addition, you can expand the scope of authorizations for release of information to include releases for Internet dating services, networking services, e-mail service providers, instant messaging services, cell phone records, and even GPS/navigation system or toll pass records. III. The Admissibility of Internet Evidence at Trial One of the leading cases on the admissibility of electronic evidence is Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). According to Magistrate Judge Grimm, a proponent of electronic evidence must clear five potential hurdles to establish admissibility. These include relevance, authenticity, the hearsay rule, the best evidence rule, and the balance of probative value with prejudicial effect. A. Relevance (Rule 401) The first requirement for admissibility is that the evidence must be relevant under Rule 401, which is having any tendency to make the existence of any fact more or less probable. This is usually an easy hurdle to clear. Judge Grimm points out that evidence does not need to carry any particular weight: it is sufficient if it has any tendency to prove or disprove a consequential fact in the litigation. Id. at *27. If the evidence is irrelevant, the inquiry ends since evidence that is irrelevant is inadmissible. If it is relevant, all of the other rules are designed to determine whether relevant evidence should nonetheless be excluded. B. Authenticity (Rule 901, 902) Rule 901 defines authentic evidence as that which is supported by a finding that the matter in question is what its proponent claims. Rule 901(b) illustrates how electronically stored information may be authenticated through the use of extrinsic evidence: Testimony of witness with knowledge (Rule 901(b)(1)). The witness must provide factual specificity about the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change or the process by which it is produced if the result of a system or process that does so. Comparison by the trier of fact or expert witness (Rule 901(b)(3)). The trier of fact or expert witness can compare e-mails that were previously authenticated with the evidence in question. Circumstantial evidence of the evidence itself (Rule 901(b)(4)). Keep in mind that the content of the e-mail can often authenticate it. See United State v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000). Another way to authenticate electronic evidence is by means of hash values or hash marks. There are unique numerical identifiers, inserted into electronic documents when created, which can be used for authentication. See Rule 901(b)(4). Another way is by examining metadata information describing how, when, and by whom an electronic document was created, accessed, or modified, and how it is formatted. Public Records (Rule 901(b)(7)). This rule applies when the proponent of the evidence can show that the office from which the electronic records were taken is the legal custodian of Web 2.0 to the Rescue Using the Internet to Bolster Your Defense v Mennen v 819
the records. There is no need to show that the computer system producing the records was reliable or the records accurate. Evidence produced as a result of an accurate process or system (Rule 901(b)(9)). This rule is satisfied by evidence describing the process or system used to achieve a result and demonstration that that result is accurate. Rule 902 illustrates how to authentic evidence without the use of extrinsic evidence, that is, through self-authentication. Three of the 12 examples listed in the Rule have been used by courts to authenticate electronically stored information: (1) official publications; (2) self-authentication by inscriptions, signs, tags, or labels; and (3) authentication of regularly conducted business. See Rule 902(5), Rule 902(7), and Rule 902(11). There are several other ways to authenticate evidence. One court has held that all documents produced in discovery are presumed to be authentic, and a party cannot produce information in discovery and then claim the opposing party is required to prove authenticity. See Indianapolis Minority Contractors Ass n v. Wiley, 1998 U.S. Dist. Lexis23349 (D. Ind. May 13, 1998). In addition, requests for admission may expedite the trial process by establishing evidentiary foundations that would otherwise consume considerable time. It is not enough to ask the answering party to admit that a document is genuine; rather, the requesting party must ensure that all foundational questions are included in the requests for admission and should attach a copy of the document to the request and incorporate it by reference in the requests. Documents for which authentication is sought are exceptions to the general prohibition on incorporating documents by reference into requests for admission. Authentication can also be achieved by judicial notice or by stipulation at a pretrial conference pursuant to F.R.C.P. 16. C. Hearsay Rule (Rule 802) In the context of electronic evidence, the issue at the heart of Rule 801 is whether electronic writings constitute statements by a declarant within the meaning of Rule 801(a). There are five questions to be answered: (1) does the evidence constitute a statement, as defined by Rule 801(a); (2) if it does, was it made by a declarant, as defined by Rule 801(b); (3) is the statement being offered to prove the truth of its contents within the meaning of Rule 801(c); (4) is the statement excluded from the definition of hearsay by Rule 801(d); and (5) if the statement is hearsay, does an exception identified in Rules 803, 804, or 807 apply? Rule 801(d)(2) is most often used as an exclusion to the hearsay rule in the context of e-mail because it excludes admission by a party opponent. D. Best Evidence Rule (Rules 1002, 1003, 1004) Duplicates can be admitted into evidence in lieu of the original unless there are issues of authenticity of the original. This is of particular concern with electronically stored evidence, as it is often difficult to share or mark as an exhibit if it is displayed on a screen. Typically, print-outs will be admissible as long as they accurately reflect the data. E. Balance of Probative Value and Prejudicial Effect (Rule 403) Potential for unfair prejudice may be an issue, for example, when computer animations are offered in evidence because there is a possibility a jury will mistake them for the events themselves. See 820 v DRI Annual Meeting v October 2010
Friend v. Time Mfg. Co., 2006 WL 2135807 (D. Ariz. 2006). You should also beware of electronic information that contains offensive or highly derogatory language. IV. Social Media in the Courtroom In December 2009, the Judicial Conference Committee on Court Administration and Case Management issued model instructions to help deter jurors from using social media to research or communicate about cases on which they serve. Proposed Model Jury Instructions The Use of Electronic Technology to Conduct Research on or Communicate about a Case Before Trial: You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom. Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iphone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube. At the Close of the Case: During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iphone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. Web 2.0 to the Rescue Using the Internet to Bolster Your Defense v Mennen v 821