Social Media Hearsay Objections

Social media being offered into evidence in any case will almost always have hearsay objections if the proffered evidence is a status update, comment, Tweet, or even video.

The reason? Virtually everything on social media is a statement. Unless the social media is only a photo with no text, there is a almost certainty that any social media evidence will have a hearsay objection.

spilledwafflecone

Case in point: a Plaintiff in employment age discrimination litigation during summary judgment attempted to introduce deposition testimony from the Plaintiff about a Facebook status message from a current employee about customer complaints and that the declarant was “sick and tired” of it. Fairweather v. Friendly’s Ice Cream, 2014 U.S. Dist. LEXIS 100755, 12 fn 11 (D. Me. July 24, 2014).

The Court found the Facebook status message “problematic,” because it was made more than a year after the Plaintiff had been terminated, thus would not be admissible under Federal Rule of Evidence 403 (likely because it would confuse the issues or cause prejudice). Id.

The Defendant also objected to the statement as hearsay (an out-of-court statement offered for the truth of the matter asserted). The Court opined that the statement was not being offered to prove the declarant was actually “sick and tired” of customer complaints, but evidence of the frequency of customer complaints. Fairweather, at *17. This would mean the statement was being offered for the truth of the matter asserted and thus would be hearsay. The Court further found the deposition testimony about the status message to be cumulative and would not be admitted. Id. 

Ironically, the Court did not invoke the Best Evidence Rule. The dispute focused on the Plaintiff’s deposition testimony about a status message she saw from another person. There is no reference to a print out, screen shot, or any capture of the Facebook status message. This arguably would also violate the “Best Evidence Rule,” because the “writing” was not actually included as evidence.

Spoliation, Texas Style

The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess an appropriate remedy. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, 3-4 (Tex. July 3, 2014).

This Allemande Left and Do So Do requires a Trial Court to find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Bros., Ltd., at *3. This is to be done outside the presence of the jury, so the accused party is not swung around before the jurors, causing any prejudicial effect by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Id. (and memories of 7th grade square dancing). 

The jury is to only hear evidence of spoliation that is related to the lawsuit. If there is spoliation, the then Trial Court can craft a proportionate remedy based upon the level of culpability of the spoliating party and the degree of prejudice, if any, suffered by the nonspoliating party. Brookshire Bros., Ltd., at *4.

The facts of the Texas case involved video footage at a grocery store of a slip and fall. The Plaintiff slipped at the store and reported the incident the following day after going to the emergency room. The store saved video of the fall, starting from before the Plaintiff entered and left the premises. The video lasted 8 minutes. However, the rest of the video was deleted per the company’s data destruction policy after 30 days. Brookshire Bros., Ltd.  at *6-7.

The Texas Supreme Court held that a party must intentionally spoliate evidence in order for a spoliation instruction to constitute an appropriate remedy. Brookshire Bros., Ltd.  at *31.

The Court held that the deletion of the video for the entire day of the incident did not justify the jury spoliation jury instruction. Furthermore, the video showing the actual fall was presented to the jury. Brookshire Bros., Ltd.  at *46-47. The Court found that the failure to preserve additional video footage did not irreparably deprive Plaintiff of any meaningful ability to present his claim. Brookshire Bros., Ltd.  at *47-48. The issuing of the spoilation jury instruction was an abuse of the Trial Court’s discretion. Brookshire Bros., Ltd.  at *48.

Bow Tie Thoughts

The preservation of electronic evidence is a challenge for many attorneys. Litigants cannot preserve “everything” in a company at the first sign of litigation. The trick is preserving what is relevant. This becomes a question on the scope of discovery.

Could the Defendants in this case have copied a half hour before the incident and a half hour after? Sure. Some companies might do that. Others might not. Whether that is reasonable would turn on the facts of the case on whether that data needed to be preserved.

Texas lawyers know a few things about spoliation. First, it is based in evidence, opposed to a cause of action. Second, Judges should not let the facts over data preservation be presented to the jury to avoid any prejudicial effect. If there is an actual issue of spoliation, then the Court must determine the remedy before going to the jury.

Blogs I Like and the ABA Journal Blawg 100

There are many great blogs for attorneys. The ABA Journal is now accepting “Friends of the Blawg” briefs in the annual ABA Journal Blawg 100. Nominations can be submitted on the ABA Journal website.

Blog in metal

There are many great litigation blogs. Here are some of my favorites:

Craig Ball’s Ball in Your Court. Craig is a scholar, a gentleman, and an exceptional attorney.

Sharon D. Nelson’s Ride the Lightning. Virginia State Bar President Nelson provides daily eDiscovery news and is a must for anyone interested in eDiscovery.

Ralph Losey’s e-Discovery Team is another excellent source of eDiscovery best practices and summaries of recent cases.

My good friend Drew Lewis (along with Phillip Favro & Dean Gonsowski) writes Recommind’s eDiscovery blog Mind Over Matters.

There are many other great legal thought leaders, from Michael Arkfeld to Jackson Palmer. Everyone of them does a great service to the practice of law. I recommend checking them all out as you consider your nominations for the ABA Journal Blawg 100.

I would be honored to have your nominations for both Bow Tie Law and The Legal Geeks with Jessica Mederson, if you enjoy my blogs.

To file your “Friend of the Blawg” brief, please visit http://www.abajournal.com/blawgs/blawg100_submit/

 

Native Files & Protective Orders

What do parties do when they anticipate documents, testimony, or information containing or reflecting confidential, proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed or produced during the course of discovery, initial disclosures, and supplemental disclosures in a case? Agreeing to a protective order is a the solution the parties sought in Farstone Tech., Inc. v. Apple Inc.

ConfidentialPaperClip

The protective order stated the following on native files:

Where electronic files and documents are produced in native electronic format, such electronic files and documents shall be designated for protection under this Order by appending to the file names or designators information indicating whether the file contains “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE,” material, or shall use any other reasonable method for so designating Protected Materials produced in electronic format. When electronic files or documents are printed for use at deposition, in a court proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. No one shall seek to use in this litigation a .tiff, .pdf or other image format version of a document produced in native file format without first (1) providing a copy of the image format version to the Producing Party so that the Producing Party can review the image to ensure that no information has been altered, and (2) obtaining the consent of the Producing Party, which consent shall not be unreasonably withheld.

Farstone Tech., Inc. v. Apple Inc., 2014 U.S. Dist. LEXIS 89604, 10-12 (C.D. Cal. June 24, 2014).

The section of depositions demonstrated a lot of forethought on behalf of the attorneys who prepared the stipulated protective order (or Judge) with the party printing the electronic files or documents shall affix a legend to the printed document corresponding to the designation of the Designating Party and including the production number and designation associated with the native file. The only way this could be stronger would be the legend also including a MD5 hash value for authentication (which it potentially would include) and the system file pathway.

The final sentence on allowing review of a static image to the opposing side for review also addresses a concern many attorneys have over native files converted to static images. There is the obvious method of reading the document to determine it is “identical,” but using near-de-duplication technology to verify the text is an exact match, assuming the static image is a searchable PDF. If it is a TIFF, then conducting a line by line comparison is the best option.

My compliments to the attorneys who drafted the stipulated protective. I hope the litigation avoids any discovery disputes and focuses on the merits.

Proportionality Prevents Mirror Imaging of Family Computers

The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).

Young woman with a laptop on her head

Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case, proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:

(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;

(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers. 

Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir, 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (DMd. Apr. 9, 2013).

Bow Tie Thoughts 

Conducting forensic analysis by an opposing party on personal computers is one of the most touchy subjects in eDiscovery. The United States Supreme Court drove home how much personal data can be on a smart phone, so that information only explodes on a personal computer. Tax records, vacation photos with children, and a host of other non-relevant or privileged information can be on a personal computer. The idea of a Court ordering the mirror imaging of personal computer by an opposing party is as invasive as ordering a physical examination of a party. It is not something done lightly.

I think it is part of a lawyer’s duty of competency to ensure relevant information on a client’s personal computers is preserved at the beginning of litigation. However, that does not mean that the entire contents would ever be produced, only what is relevant.

Targeted collections are one way to ensure ESI is preserved. There is also self-executing technology that can be used, as well as remote collections. I would avoid self-collection at all costs.

That being said, I would hold the line and fight against an opposing party that wanted to rummage through a personal hard drive without significant legal justification.

Stuck in the Predictive Coding Pipeline

ExxonMobil Pipeline had a problem in discovery: their discovery responses were overdue. The requests for production was served in November 2013 and due after one extension in January 2014. The Plaintiffs rightly brought a motion to compel.

The Defendants had enough discovery to give most eDiscovery attorneys a migraine with a nosebleed: 16 separate lawsuits, with 165 discovery requests in one case, a total of 392 requests in all the related cases, and 83 custodians with approximately 2.7 million electronic documents. Other discovery going back to 1988 had over 63,000 paper documents that were scanned and to be searched with keywords. Additionally, there were approximately 630,000-800,000 documents that had to be reviewed for responsiveness, confidentiality, and privilege. The Defendants had produced 53,253 documents consisting of over 191,994 pages. United States v. ExxonMobil Pipeline Co., 2014 U.S. Dist. LEXIS 81607, 5-8 (E.D. Ark. June 9, 2014).

pipeline

The Defendants suggested using predictive coding in light of the large volume of discovery, but the Plaintiff the United States did not agree with the use of predictive coding (at least since the filing of the motions). ExxonMobil Pipeline, at *6. Moreover, the parties did not seek relief from the Court on the use of predictive coding, other than to order the parties meet and confer. ExxonMobil Pipeline, at *6-7.

The Defendants explained that using traditional review with 50 attorneys that document review could be completed by the end of June 24 and production by the end of August 2014. ExxonMobil Pipeline, at *6.

The United States disagreed with the Defendants assumption of lawyers only reviewing 250 documents/files a day. Moreover, the Defendants did not raise concerns about document review when they entered an agreed upon scheduling order in October 2013. ExxonMobil Pipeline, at *6-7.

The Court acknowledged that the Defendants had a large volume of discovery to review. Moreover, it was unclear if the parties had agreed to a review methodology before the Court issued its order. Regardless, the Court ordered the Defendants to complete their review and production by July 10, 2014, absent good cause. ExxonMobil Pipeline, at *7-8.

Bow Tie Thoughts

Most attorneys do not think about document review strategies at the beginning of a case. They should. Discovery is the backbone of civil litigation. Unless you know the information you have to review, strategies to maximize efficiency, and reviewing for claims or defenses, document review can be a nightmare experience.

This case does not go into why the Defendants sought agreement from the Plaintiff on the use of predictive coding. I do not agree with that strategy, unless a specific review protocol was ordered at the Rule 16 conference that the producing party wanted to change.

The issue with a document production is whether or not the production is adequate. Lawyers should agree to the subject matter of the case, custodians, data ranges, and other objective information that goes to the merits of the lawsuit. When lawyers start asking each other for permission on whether they can use predictive coding, visual analytics, clustering, email threading, or any other technology, civil litigation becomes uncivil. Case in point: the Plaintiffs argued the Defendants could review more than 250 documents a day in this case. Such disputes turn into an academic fight over how much lawyers can read and analyze in a 9-hour workday. The end result of such motion practice would be a Judge ordering lawyers to read faster.

My advice is to focus on the merits and not derail the case with a fight over what review technology can be used. Fight over whether the production is adequate, not what whether you can use predictive coding.

Arkansas Bar Association Annual Meeting

I had the honor of speaking at the 2014 Arkansas State Bar Annual meeting on eDiscovery Ethics and new trends in eDiscovery in Hot Springs, Arkansas. I had an amazing time and greatly appreciated the hospitality of the Arkansas Bar Association.

Arkansas_Ethics-Presentation

My new Ethics seminar is a Star Trek themed presentation based on the Ingenuity 12 LLC v Doe case, that also covered the evolving rules of attorney and judicial ethics on social media; how to conduct a reasonable inquiry with ESI; the duty of candor to the Court; compliance with Rule 11 in an age of Terabytes; Production obligations under FRCP 26(g); and the duty of confidentiality and computer security. It was also a ton of fun.

MirrorSpock-Agonizer

My two sessions were attended by 150-200 attorneys in the convention center exhibit hall. We also covered the proposed California ethics opinion on eDiscovery competency, which will require attorneys to be competent in the following areas:

Initially assess eDiscovery needs and issues, if any;

Implement appropriate ESI preservation procedures, including the obligation to advise a client of the legal requirement to take actions to preserve evidence, like electronic information, potentially relevant to the issues raised in the litigation;

Analyze and understand a client’s ESI systems and storage;

Identify custodians of relevant ESI;

Perform appropriate searches;

Collect responsive ESI in a manner that preserves the integrity of that ESI;

Advise the client as to available options for collection and preservation of ESI;

Engage in competent and meaningful meet and confer with opposing counsel concerning an eDiscovery plan; and

Produce responsive ESI in a recognized and appropriate manner.

Proposed Formal Opinion Interim No. 11-0004 (ESI and Discovery Requests) (State Bar of California).

Khan-FormofProduction

This proposed opinion has teeth, because lawyers who are not competent in eDiscovery should either learn how to handle eDiscovery issues, associate with those who are, which can be retaining an expert, or decline representation. Given the fact virtually all civil litigation has data of some kind in it, the third option could end careers.

ESI-Tribbles

“Tweeting Discovery,” my second session, explored recent social media/eDiscovery issues. The material also covered two of the new and proposed statutes limiting the use of Drones by law enforcement. The Drone limitations would prohibit law enforcement to use Drones to gather evidence, images, sounds, or data. The key exceptions would be in a high risk of terrorist attack, finding a mission person, preventing imminent loss of life, or a search warrant (limited in scope to only person subject to the search), and data retention rules. See, 2013 ILL. ALS 569 and 2013 Bill Text NC H.B. 312.

I want to thank the Arkansas Bar Association for their hospitality. I had a corner suite in the Arlington Hotel, which included a Washington, DC, theme, complete with a large sitting room and conference room. Truly a lot of fun. I even took a moment to enjoy the suite and record this promo video for The Legal Geeks submission to the Geekie Awards: