Social Media Discovery: NATA 2015

Mark Zamora

mark@markzamora.com

Offices Tampa and AtlantaMass tort litigation: Dietary supplements and products

Understand Social Media

61 % of seniors 50-65 use email

20% of seniors age 50-65 visit social networks

Facebook User Base: 43% of the base – age 45 and older

Pinterest: Nearly 15% of its users are 55 and older

IT’S THE APPS

Understand the Subject

Immediacy of Social Media

Vine captures Truck wreck

Take an Inventory of what is Popular

Preservation and Spoliation

Spoliation refers to the “destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Silman v. Associates Bellemeade, 286 Ga. 27 (2009) .

A perfect preservation letter must, seek to halt routine business practices geared to the destruction of potential evidence. My practice- we won’t use “any and all … “ nor do we use “including but not limited to … .”

Case examples of spoliation: Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. Mar. 25, 2013) (“Gatto”) and the Virginia state case Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) (“Lester”).

Gatto:

Airline requested spoliation sanctions because the plaintiff destroyed Facebook material that would have shown that he was not disabled and lived an active lifestyle as shown by the material she previously printed out. • The plaintiff argued that he deleted the account because other people were trying to access his account without permission. • Plaintiff also argued that the airline assured that they would not access the account online but through Facebook’s corporate offices. The airline denied any such assurance.• The judge did not believe the deletion was unintentional. • Sanction: A Jury Instruction on Spoliation.

Allied Concrete v. Lester 736 SE 2d 699, 285 Va. 295 – VA Sup. Ct., 2013

Defendant sought discovery of plaintiff’s social media accounts to rebut the alleged impact of the crash on plaintiff. Plaintiff’s Facebook page contained photographs that cast him in a negative light, which defendant’s counsel (apparently under permissible circumstances) was able to briefly access. Among photographs was one depicting plaintiff “holding a beer can while wearing a T-shirt emblazoned with ‘I ♥ hot moms’”

The next morning after receiving the discovery request, plaintiff’s attorneys instructed plaintiff: “[w]e do NOT want blow ups of other pics at trial so please, please clean up your [F]acebook” Id.

Plaintiff deactivated his Facebook account, then reactivated it and deleted the sixteen pictures. Subsequently he stated in a deposition that he had not deactivated the account. Id. In further discovery proceedings to identify what evidence plaintiff had suppressed, plaintiff’s attorney “intentionally omitted” any mention of the email instructing plaintiff to “clean up” his Facebook account. Id. at 703.

The court awarded defendant $722,000 in sanctions , with $542,000 due from plaintiff’s counsel and $180,000 due from plaintiff.

Facebook: Plaintiff’s Privacy Interest “Minimal” & Production Ordered - 2149 Pix Disclosed

Nucci v. Target Corp., FL 4th DCA 1/7/2015

“this case as one that “stands at the intersection of a litigant’s privacy interests in social media postings and the broad discovery allowed in [a state] a civil case.” Denying the Plaintiff’s petition for certiorari, the Court found that the photographs were, “reasonably calculated to lead to admissible evidence and the Plaintiff’s privacy interest in them was minimal, if any.”

“Generally the photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established”

Nucci

The order also compelled production of the following items:

1. For each social networking account listed in response to the interrogatories, please provide copies or screenshots of all hotographs associated with that account during the two (2) years prior to the date of loss.

2. For each social networking account listed in the interrogatories, provide copies or screenshots of all photographs associated with that account from the date of loss to present.

postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.

Authenticating Evidence

What about authentication? “[A] piece of paper or electronically stored information, without any indication of its creator, source, or custodian may not be authenticated under Federal Rule of Evidence 901.” United States v. O’Keefe, 537 F. Supp. 2d 14, 20 (D.D.C. 2008).

Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000): The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(a), SCRE.

The authentication of electronically stored information involves the following questions, at a minimum:

How was the evidence collected?

Where was the evidence collected?What types of evidence were collected? Who handled the evidence before it was collected?

When was the evidence collected?

Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence § 8.11(C), at 8–63 (3d ed.).

Hearsay:

To use the hearsay rules to exclude, or the exceptions to admit, social media, lawyers need only apply the rules and exceptions in the same way they apply them to other evidence

Miles v. Raycom Media, Inc., 2010 U.S. Dist. LEXIS 122712, at *7–9, n.1 (S.D. Miss. Nov. 18, 2010), which held that a Facebook page containing unsworn statements made by third parties that were offered to prove the truth of the matter asserted constituted inadmissible hearsay under Federal Rule of Evidence 801.

 Jackson v. Speed, 326 S.C. 289, 305, 486 S.E.2d 750, 758 (1997) -"The improper admission of hearsay is reversible error only when the admission causes prejudice

An Appellate Court ruled a Facebook post submitted by the prosecution in a recent criminal case to be inadmissible as evidence. In Commonwealth v. Banas, 2014 WL 1096140 (March 21, 2014), the State introduced the Facebook post in the form of a printout of a screenshot without any additional circumstantial evidence to establish authenticity. The court explained that more information beyond the screenshot itself was required to establish a proper foundation for the Facebook post.

The testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the website documents are what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (emphasis added) (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007)

Facebook Postings

Model Jury Instruction

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 know that many of you use cell phones, Blackberries, the internet and other tools

of technology. You also must not talk to anyone at any time 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, including Facebook, Google+, My Space, LinkedIn, or YouTube. You

may not use any similar technology of social media, even if I have not specifically

mentioned it here. I expect you will inform me as soon as you become aware of another

juror’s violation of these instructions.

http://www.uscourts.gov/uscourts/News/2012/jury-instructions.pdf

Trial Starts – In the Clear, Right? Wrong

Ask Judge to remind jury at the end of each trial day about no use of social media.

Missouri: Wrongful death trial, juror talked about the case daily on her Facebook page:

“Sworn to secrecy as to details of this case. Most importantly . . . the 3:00 p.m.

Cocktail hour is not observed!”

Friend: “If he’s cute and has a nice butt, he’s innocent!”

• Juror: “Drunk and having a great food at our fav neighborhood hangout”

Sylvia Hsieh, Juror’s Facebook Posts May Overturn Wrongful Death Verdict,

LAWYERS.COM (Feb. 14, 2013), http://blogs.lawyers.com/2013/02/jurors-facebookposts-overturn-verdict. The offending juror was jailed for two months for contempt.

Cases on Juror and Social Media

State v. Smith, 2013 WL 4804845 (Tenn. Sept. 10. 2013) the Tennessee Supreme Court considered how a trial court should react when it learns “during a jury’s deliberations that a juror exchanged Facebook messages” with a witness.

The trial judge should “immediately” conduct a “hearing in open court to obtain all the relevant facts surrounding the extra-judicial communication,” including its impact on the juror’s “ability to serve as a juror” and whether any improper information was shared with other jurors.

Are you a friend? You MUST ASK. WGM v. State, WL4710406 (Ala. Crim. App. 2013) – claim of juror misconduct was rejected because venire was never asked about social networking relationships.

Facebook friendships “do not necessarily carry the same weight as true friendships or

relationships in the community, which are generally the concern during voir

dire … . Sluss v. Commonwealth 381 S.W.3rd 215 (Ky. 2012)

Explain Why Instruction must be Repeated

Some jurors may not even realize that it is wrong to communicate on social media about the case.

It is important to tell the jury why the restrictions exist. It is not because of some

technical legal formality, but is necessary to ensure the fundamental fairness

of the trial in a variety of ways. By explaining to the jury the important reasons that underlie the rule, jurors are more likely to be invested in preserving the integrity of the process and less likely to write off the rule as unimportant or unnecessary.