discovery

by Steve Lewicky

Congratulations to Magistrate Judge Grimm on approval of his judicial nomination by the Senate Judiciary Committee

The Senate Judiciary Committee on June 7 approved, by voice vote, the nomination of Chief U.S. Magistrate Judge Paul W. Grimm to a federal judgeship the U.S. District Court for the District of Maryland.  If confirmed by the full Senate, Judge Grimm will succeed Judge Legg.  Judge Grimm has written extensively on the admissibility and discovery of electronically stored information (ESI).

by Steve Lewicky

Trial 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 Lewicky

Information 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.