by Steve LewickyNLRB issues memo on illegal employee social media policies
The National Labor Relations Board on May 30 issued a memorandum from its acting general counsel, giving detailed examples of company social media policies that the NLRB may find to interfere with protected employee rights under the National Labor Relations Act. The memorandum can be downloaded here.
by Steve LewickyTrial Authentication of Social Network Evidence in Maryland
Here’s a quick Maryland state court trial practice review of the requirements for authenticating evidence that is obtained from online social network postings: The Maryland Court of Appeals in 2011 issued its decision in Griffin v. State, a case in which a criminal defendant was convicted of shooting a bar patron. During the trial, the State sought to introduce the defendant’s girlfriend’s MySpace profile to demonstrate that, prior to trial, the defendant had allegedly threatened another witness called by the State. The printed pages offered into evidence contained a MySpace profile in the name of a pseudonym, describing a particular woman by age and birthday, and with a photograph of an embracing couple. The printed pages also contained the following statement: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” When the defendant’s girlfriend was called to testify at trial, she was not asked about the pages allegedly printed from her MySpace profile. Instead, the State attempted to authenticate the pages as belonging to the girlfriend through the testimony of a police officer, who would testify to how he downloaded the information from MySpace. Among other objections, the defense objected to the admission of the pages by arguing that the State could not sufficiently establish a connection between the profile and posting, and the person who allegedly posted the information. Outside of the presence of the jury, the police officer provided testimony regarding why he believed the subject MySpace profile information was posted by the girlfriend/witness. When the trial judge indicated that he would permit the officer to testify in support of authentication of redacted pages from MySpace, defense counsel agreed to a stipulation to what the officer would say in testimony, in lieu of the officer testifying, and counsel preserved his objection to admissibility. The intermediate Court of Special Appeals upheld admission of the evidence, but the Maryland Court of Appeals overturned that ruling.
The Court of Appeals found that the printed MySpace profile pages were not properly authenticated pursuant to Md. Rule of Civ. Proc. 5-901, holding that there were insufficient “distinctive characteristics” on this particular MySpace profile to authenticate the printout. The court was especially concerned that someone other than the girlfriend/witness might have created the MySpace account and posted the “snitches get stitches” comment. The court explained that “[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [the girlfriend/witness] was its creator and the author of the ‘snitches get stitches’ language.” In a footnote, the court took pains to distinguish authentication concerns that it had with regard to social network sites from the authentication issues attendant to emails, instant messaging, and text messages. The court opined that these types of electronic communication differ significantly from those involving an online social network profile because email, IM and text messages are sent directly from one party to one or more intended recipients, rather than being published broadly. The court also made clear that it was not suggesting that printouts from social networking sites should never be admitted into evidence, and suggested that avenues of authentication “worthy of exploration” include asking the purported creator whether she created the profile and if she posted the subject information, searching the computer of the purported creator to examine its internet history, or obtaining information directly from the social networking site to link the profile to the purported creator.
The Griffin case establishes significant hurdles that must be overcome by any litigant wishing to authenticate and admit information from an online social network. In conducting discovery and developing trial strategy, counsel should consider if it is feasible to directly question a purported creator of online content as to whether she created the subject content. Obviously, this would not be practical in most criminal cases but may solve the problem in many civil cases. In either type of case, counsel may wish to strongly consider seeking an order permitting a search of the purported creator’s computer hard drive and internet browser history, if the online information is important enough to justify the cost of following this avenue toward authentication. Finally, in an appropriate case, a party may decide to undertake the daunting challenge of seeking user information directly from a social networking site, though the practical constraints on doing so are often significant. In light of Griffin, it is not sufficient to walk into court with a printout of online social network content, and rely solely on the fact that the page contains information that appears to identify the “owner” of the page as the purported creator of the content. The Court of Appeals has determined that concerns about whether third parties may have posted information while posing as the purported creator of the content outweigh the probity of the kind of identifying personal information that was at issue in the Griffin case.
by Steve LewickyCourt of Appeals rules that Maryland must recognize valid out-of-state same-sex marriages
On May 18, 2012, the Maryland Court of Appeals issued a decision in the case of Port v. Cowan and held that valid out-of-state same-sex marriages will be recognized as valid in Maryland. The two parties to the case, Jessica Port and Virginia Anne Cowan, were married in California in 2008. They separated two years later, and Port ultimately filed a divorce complaint in Maryland. The trial court denied the request for a divorce, finding that their same-sex marriage was not valid, and was contrary to the public policy of Maryland. In its opinion, the Court of Appeals reasoned that, for purposes of the application of Maryland’s divorce laws, a foreign state judgment should be enforced and honored if it is not statutorily prohibited in Maryland, and is not repugnant to Maryland public policy. The court noted that the threshold for “repugnancy” in this context is very high and that Maryland statutory law does not expressly state that foreign same-sex marriages are void. The Court reviewed Maryland statutes and executive branch policies and interpreted them to demonstrate that recognition of valid foreign same-sex marriages is consistent with Maryland public policy. Therefore, the Court held that Maryland courts have the power to adjudicate divorce actions between same-sex parties that are validly married in another state.
by Steve LewickyNew law restricts IDOTs and increases commercial financing costs in Maryland
One means by which the budget and taxation bill that recently cleared the Maryland Legislature will increase state tax revenues is by substantially restricting the utility of indemnity deeds of trust (“IDOTs”) as a legally sanctioned means to avoid the current payment of mortgage recordation taxes on commercial real estate loans. Under current law, the owner of commercial property can establish a separate business entity to act as the borrower on a commercial real estate loan, and the owner can guaranty the loan and secure the guaranty with an IDOT. The separate entity that is established to borrow the funds can be a subsidiary of the property owner. When this structure is used to have separate entities serve as borrower and guarantor on a loan, no current recordation tax is owed on the IDOT. Once the new law goes into effect on July 1, 2012, it will be applicable to all IDOTs over one million dollars recorded on or after July 1, 2010, and will make IDOTs unattractive for most commercial deals. Although state tax revenues will thereby increase, so will the costs of commercial real estate financing in Maryland.
by Steve LewickyInformation on Facebook is subject to discovery in litigation
Can a defendant in a civil suit be forced to provide the plaintiff information from the defendant’s Facebook account, such as photos, messages, and even deleted items? They sure can. This may not surprise many trial lawyers, but I think it may come as a big surprise to many Facebook users who end up in litigation. Personal injury defense lawyers and divorce lawyers certainly are using public Facebook pages to see if the opposing party has posted any photographs or messages that contradict the theory of their case.
Although there isn’t a lot of reported case law directly related to Facebook accounts, it’s well established under Federal Rule of Civil Procedure 26(b)(1) that the scope of permissible discovery is quite broad. Parties in litigation may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, and relevant information need not be admissible at the trial in order to be within the scope of permissible discovery if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Maryland Rule of Civil Procedure 2-402(a) casts a similarly wide net in state court litigation. Although federal trial courts have taken the lead in interpreting discovery rules as they relate to electronically stored information (ESI) , the first judicial interpretations of whether Facebook information is discoverable are in a handful of state trial court decisions.
In McMillen v. Hummingbird Speedway, Inc., a state trial court in Pennsylvania granted a motion to compel discovery when the defendant asked in an interrogatory whether the plaintiff belonged to any online social networks, and the plaintiff acknowledged belonging to Facebook and MySpace, but argued that his user names and login information were confidential and therefore not discoverable. The court observed that, under Pennsylvania law, nearly all relevant materials are discoverable, because that state recognizes only a limited number of privileges. The court declined to establish a new privilege for information shared by a party on an online social network. It noted that Facebook’s privacy policies do not guarantee confidentiality, and reasoned that a Facebook user cannot reasonably expect that his communications on and through Facebook would remain confidential. The reasoning of the McMillen court was thereafter adopted by another Pennsylvania trial court in Zimmerman v. Weis Markets, Inc. The Zimmerman decision also referenced a recent New York opinion in the case of Romano v. Steelcase, Inc.
In the Romano case, the plaintiff argued that production of her Facebook and MySpace entries in discovery would violate her constitutional right of privacy, which she asserted should outweigh the defendant’s need to obtain information in discovery. The New York court found that there was no reasonable expectation of privacy for the information posted on an online social network, and emphasized that privacy concerns are far less when it was the party herself that chose to disclose the information on the online forum.
While the number of cases is few at this point, litigants and their attorneys should best assume that Facebook information will be discoverable, if the party seeking discovery can make a foundational showing that relevant information might reasonably be anticipated to be found within the particular Facebook account. While obtaining information directly from Facebook under subpoena is generally considered to be very difficult, a more realistic approach is to obtain Facebook information directly from the account holder, pursuant to a discovery request for production of documents or a subpoena. It’s not yet widely known or appreciated that any Facebook account holder can download into an Adobe .pdf file a copy their entire account archive by going to the account settings portion of their Facebook page and clicking the link for downloading their “expanded archive.” Soon enough, this is likely to be a standard area of inquiry in discovery requests.
by Steve LewickyCongratulations to Judge Russell on his confirmation to the U.S. District Court bench
The U.S. Senate on May 14 confirmed Baltimore City Circuit Court Judge George Levi Russell III to the U.S. District Court for Maryland in Greenbelt. This seat on the bench has been open since September 2008, when Judge Peter J. Messitte took senior status.
by Steve LewickyCourt of Appeals pit bull decision effectively forces landlords to evict pit bulls, or their owners
The Maryland Court of Appeals’ recent decision in Tracey v. Solesky has put landlords on notice. If there is a pit bull in a rental unit, the landlord now will be running a substantial risk if it does not force the tenant to remove the dog or evict the dog owner. The Court held that, if someone is attacked by a pit bull or a pit bull crosses them, the plaintiff can establish a prima facie case of negligence merely by proving the breed of the dog, and the fact that the defendant knew or had reason to know that the dog was a pit bull or a cross-bred pit bull. A prima facie case is thereby established not only as to the dog’s owner but also with regard to any other persons who had the right to control the dog’s presence in the rental unit, such as a landlord who has the right to prohibit such dogs. With this decision, it is no longer necessary to prove that the particular pit bull dog as known to be dangerous. The dog owner and the owner’s landlord can now be held responsible even if the dog had no history of attacking or biting anyone. Prior to this decision, dogs in Maryland were said to have “one free bite,” in that if the dog bit someone and its owner had no knowledge that the dog had a propensity to attack people, the owner was not been responsible for this first violent incident. This rule no longer applies to pit bulls.
With this new “strict liability” rule for pit bulls and pit bull crosses, it’s hard to imagine a situation in which a landlord with knowledge of the law will permit a tenant to have this breed in a housing unit. Likewise, the dog owners themselves are now at substantially higher risk.
