Going Too Far with a Litigation Hold: Do Not Secretly Copy the Adverse Party’s Data

In a business divorce, the Plaintiffs received a litigation hold notice from the Defendants.  The Plaintiffs then secretly copied computer files from the Defendants’ data center in Oakland, California through their virtual private network (VPN) connection to the data center.  Joseph Oat Holdings, Inc. v. RCM Digesters, Inc., 665 F. Supp. 2d 448, 452 (D.N.J. 2009).

Here is a quick take away: This was a bad idea.  Don’t play spy as your litigation hold strategy. 

Even though the Plaintiffs dodged some violations, secretly copying data from a party as a preservation procedure is riddled with risk. 

The Plaintiffs’ actions erupted with in-depth analysis on whether the California Computer Data Access and Fraud Act was violated by this “litigation hold” tactic. Joseph Oat Holdings, Inc., at *451. 

While there are other points of law at issue in this detailed opinion shortly addressing conversion, Federal and New Jersey law, this article will focus on the California Computer Data Access and Fraud Act analysis. 

The Facts & Procedural History: A Litigation Hold Too Far

Two business partners in the biological sciences industry decided to end their business relationship after 18 “stormy” months.  Joseph Oat Holdings, Inc. at *451.

The Plaintiffs, without either the Defendant’s permission or knowledge, accessed and copied over 150,000 files at the Defendant’s data center.  Joseph Oat Holdings, Inc. at *454. 

Many of the files were created after the parties ended their joint venture.  Id.

The data was accessed after the Plaintiffs had a right to do so, because the property rights had reverted to the Defendants.  Joseph Oat Holdings, Inc. at *455. 

There was evidence the Plaintiffs also deleted files and changed administrative passwords.  Joseph Oat Holdings, Inc. at *455. 

The Plaintiffs named their data acquisition project the “Information Copy Project.”  Joseph Oat Holdings, Inc. at *454.  They were able to keep the project secret for a year.  Id.

The Plaintiffs’ computers had desktop shortcuts to the “Information Copy Project” files, allowing quick access to the electronically stored information.  Joseph Oat Holdings, Inc. at *454-455. 

The Plaintiffs claimed they were just preserving electronically stored information and had permission to do so because the Defendants sent a “litigation hold.”  As such, they did not violate the California Computer Data Access and Fraud Act (or other laws) for their “preservation” actions.  Joseph Oat Holdings, Inc. at *455. 

And with that, the “litigation hold” defense to secretly accessing and copying a data center was born. 

The Defendants referred to the Plaintiffs’ preservation actions as an “after-the-fact concoction to justify their illegal actions.” Joseph Oat Holdings, Inc. at *452. 

The Magistrate Judge found that the Plaintiffs’ secretive conduct in discovery was “troubling,” however, found that the data was copied to seek a business advantage, not a litigation advantage.  Joseph Oat Holdings, Inc. at *453.  As such, the proper remedy was for the Plaintiffs to pay the Defendants’ costs, but not attorneys’ fees.  Id. 

Dueling Summary Judgments

The District Court addressed the data acquisition issues in the parties’ dueling motions for partial summary judgment.

The Defendants went on the offensive in their partial summary judgment motion, arguing the Plaintiffs violated the California Computer Data Access and Fraud Act.  The key issue was whether the Plaintiffs “knowingly and without permission accessed, and/or copied, and/or deleted defendants’ computer files.” Joseph Oat Holdings, Inc. at *454. 

The California Computer Data Access and Fraud Act (California Penal Code § 502), states in relevant part:

[A]ny person who commits any of the following acts is guilty of a public offense:

(1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.

(2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network. ..

(4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network. . . .

(6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.

(7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.

 Joseph Oat Holdings, Inc. at *454. 

The Plaintiffs’ key defense was that they had “permission” to access the data because of the litigation hold letter from the Defendants to preserve “…all recorded information…”  Joseph Oat Holdings, Inc. at *455.

The Plaintiffs further argued they were motivated to preserve the electronically stored information out of fear the Defendants would “recklessly destroy electronic information by attempting to unilaterally sever the joint system,” thus they “began to make a backup copy of the data that was on the joint server in Oakland.” Joseph Oat Holdings, Inc. at *455.

The Plaintiffs mounted a “should have expected” argument, claiming that since the Defendants’ attorneys knew there was an active VPN connect, the defense attorneys “should have expected” the Plaintiffs to copy the data.  Id.

No “Litigation Hold” Shield

There is no “litigation hold” defense shield for secretively copying data.  The Plaintiffs’ arguments were rejected twice by the Magistrate Judge and by the District Court.  Joseph Oat Holdings, Inc. at *455.

The Court noted that the Plaintiffs maintained desktop shortcuts to the files, which severely undercut any notion of preservation.  Joseph Oat Holdings, Inc. at *455-456.  Preserving data requires it is being saved and unaltered for litigation.  The very fact there were desktop shortcuts on the Plaintiffs’ computers highlighted the data could be accessed and used by a party.  That is simply not preservation for litigation.  

As the Court explained:

The duty to preserve evidence for litigation is just that–for preservation of documents as they existed at the commencement of litigation. Further, that duty is to preserve one’s own documents. It is not to serve as a method by which to create an accessible database of an adversary’s proprietary information.

Joseph Oat Holdings, Inc. at *456.

The Court further stated that a preservation letter from an opposing party does not give “a party carte blanche authority to secretively copy computer files located on the adversary’s computer server.”  Joseph Oat Holdings, Inc. at *456. 

The Court went on to explain that if there truly was a fear of the destruction of evidence, the Plaintiffs should have sought relief from the Court, most logically in the form of a preservation order on a expedited basis.  Joseph Oat Holdings, Inc. at *456.  Since the lawsuit was already underway and the offending party was the Plaintiff, they had the means and ability to seek judicial relief from the Court.  Id.

No Litigation Privilege Protection

The Plaintiffs claimed their conduct in copying the data in secret was protected by the litigation privilege.  Joseph Oat Holdings, Inc. at *456. 

The Litigation Privilege protects attorneys and litigations with an “absolute privilege to statements or communications made…in the course of judicial and quasi-judicial proceedings.”  Joseph Oat Holdings, Inc. at *456, FN 5. 

The Plaintiffs argued that Litigation Privilege protected them for their secretive data copying, because, “[c]ommon sense and fairness dictate that a litigant should be permitted to discharge their e-discovery duties without the fear of being subjected to additional causes of action.” Joseph Oat Holdings, Inc. at *456. 

The short answer is “NO” to this argument.  As the Plaintiffs’ actions were found not to be done for litigation purposes, the litigation privilege was not applicable.  Joseph Oat Holdings, Inc. at *457. 

One probably can argue data preservation is not a communication made in the course of a judicial proceeding and would further be inapplicable on those grounds. 

The California Computer Data Access and Fraud Act

The Court held the Plaintiffs violated the California Computer Data Access and Fraud Act. Joseph Oat Holdings, Inc. at *457.  

The Court held that the “unauthorized copying of a competitor’s proprietary information was ‘wrongful’ as defined by the statute and the California legislature,” pursuant to subsection (1) of the Computer Data Access and Fraud Act.  Joseph Oat Holdings, Inc. at *458.   

The Court found that after the end of the joint venture that “no rational factfinder could conclude that plaintiffs had permission to copy the files of a completely separate and unrelated entity, and particularly a competitor,” pursuant to subsection (2) of the statute.  Joseph Oat Holdings, Inc. at *458.   

The Defendants’ Relief for Violation of the California Computer Data Access and Fraud Act

The Court ordered the Plaintiffs to return all copies of the data after the ending of their joint venture.  The Plaintiffs were also barred from using the data “in any manner.”  Joseph Oat Holdings, Inc. at *460.    However, there was no injunction issued for the “pre-divorce” data.  Id. This data had been produced in discovery by the Defendants to the Plaintiffs.  Id. 

Bow Tie Thoughts

When it comes to the preservation of evidence, here are some basic actions:

1. Send a written litigation hold to your client once litigation is reasonably anticipated.   
2. Discuss with your client possible data storage locations that can be subject to the law suit.
3. Send a preservation letter to your opponent.
4. Discuss at a meet and confer the preservation of electronically stored information, including custodians and data locations.
5. If at any point there is a real threat that the opposing party’s data will be lost, seek the Court’s assistance for a preservation order or a temporary restraining order to cease the actions threatening the loss of electronically stored information.  Due to the transitory nature of some data, an expedited order might be necessary. 

The temptation to play spy and secretly copy your adversary’s data is fraught with risk.  There are different Federal and State laws that prohibit the unauthorized access of computer systems.  There is no “litigation hold” exception to these laws and it is doubtful that a colorable argument can be made with the “litigation privilege” to usurp these data protection laws. More importantly, a lawyer has an ethical duty not to advise a client on how to commit a crime. 

The moral of the story is simple: If there is truly the risk of data destruction, seek the help of the Court.

Burning Down MySpace: How Photos Can Get You Fired

Social networking websites can be a source of litigation and Human Resources nightmares.  These sites can also blur the lines between one’s personal and professional life.

In Marshall v. Mayor of Savannah a probationary female firefighter was first reprimanded and then fired for her conduct during the reprimand originating from her MySpace photos.  Marshall v. Mayor of Savannah, 2010 U.S. App. LEXIS 3233, 3-4 (11th Cir. Ga. Feb. 17, 2010).

We Didn’t Start the Fire: The MySpace Profile

The firefighter had a private MySpace profile where she posted photos of herself with her fellow firefighters taken from the City’s website.  Marshall, at *2. 

The official photos from the City website posted on the firefighter’s MySpace profile required official permission before they could be posted anywhere else.  Additionally, firefighters are prohibited from using their position as firefighters for personal fame or gain.    

The other photos posted of the MySpace included one named “Fresh out of the shower” and another that was either a nude or semi-nude figure modeling photo that promoted the firefighter’s modeling activities.  Marshall, at *2-3. 

Code 3 Lights & Sirens

An anonymous caller informed the Fire Department of the firefighter’s photos and that the photos might have conflicted with the Department’s image.  Marshall, at *3. 

A fire captain reviewed the photos, which were publically available on the MySpace profile, and printed them.  Marshall, at *3.  

After discussion between three Fire Chiefs, the decision was made to give the firefighter an oral reprimand pursuant to the Fire Department’s rules and regulations because the photos were a “discredit to [the] City and Savannah Fire Department.”  Marshall, at *4.  This was the lowest form of punishment available for “unbecoming conduct” where her position with the Fire Department was used “to enhance and to seek personal publicity” without official permission.  Id. 

Or as one of the Fire Chiefs stated, “At Savannah Fire we work at having a positive image, and we want to be viewed as a professional, competent department with outstanding members. We don’t want to be viewed as the fire department with female firefighters wrapped in towels.”  Marshall, at *5.

The Fire Department issued a memo to all hands about using official photos and insignia on websites.  Everyone was told to remove such images within a week. Marshall, at *6.

A Burning Reprimand

The oral reprimand did not go according to plan.

The three Fire Chiefs met with the firefighter to discuss her MySpace photos.  The firefighter was informed the photos violated the Department’s rules and regulations.  At that time, she was given an oral reprimand, because she lacked permission to use the official photos.  Marshall, at *6-7.

The firefighter did agree to remove at least one of the official photos from the Fire Department.  Marshall, at *7.  However, the firefighter questioned whether the Chiefs had shown the photos to anyone else, denied any wrongdoing, and refused to remove photos from another public safety agency, even though she was ordered to do so.  Marshall, at *7. 

The firefighter refused to sign the reprimand.  There is debate on whether the firefighter became defensive during the meeting with the Chiefs.  Regardless, the firefighter claimed she was singled out because “other firefighters” had similar MySpace photos.  Marshall, at *7-8.  When questioned on who these firefighters were, the firefighter refused to name names. Marshall, at * 8.  While the firefighter finally signed the reprimand, she added she denied committing any wrongdoing on the document.   Marshall, at * 9.

…and then Fired

The firefighter was fired three days after the reprimand for insubordination and “denial of violation of Fire Department policy, disrespect toward administration and Chief Officers, [and] disregard for [the] oath of a Savannah Fire Department Firefighter.”  Marshall, at * 9-10.

Procedural History from the District Court

The District Court granted a summary judgment for the City.  The different causes of action failed for different reasons, including a failure to assert a racial discrimination claim in the Charge of Discrimination with the Equal Employment Opportunity Commission.  Marshall, at *11. 

The District Court found the firefighter (now the Plaintiff) failed to make a “prima facie case of disparate treatment because she did not establish that other similarly situated male employees were treated more favorably.”  Marshall, at *12.

The District Court held the retaliation claim was first pled in the Plaintiff’s response to the motion for summary judgment.  As such, there was no fair notice to the Defendants, who did not question this claim during the firefighter’s deposition.  Marshall, at *12.  As such, the claim failed on procedural and prejudicial grounds. 

The District Court further held her MySpace photos were not entitled any First Amendment production.  Marshall, at *12.

Court of Appeals: Putting Out the Fire

The Court of Appeals affirmed the District Court’s summary judgment on the firefighter’s gender discrimination and retaliation claims.  Marshall, at *26.

The Plaintiff argued she suffered gender discrimination because she had a more severe punishment for her MySpace photos then male firefighters who also might have violated Department rules.

Without reciting all of the standards and tests for gender discrimination in the Court of Appeals’ analysis, the Court of Appeals held the Plaintiff failed in her burden to demonstrate that male employees who possibly engaged in similar conduct were treated differently than her.  Marshall, at *17. 

The Court of Appeals discussed that even if there were male firefighters who violated the rules on photos, the Fire Department Chiefs lacked knowledge of who those individuals were.  Marshall, at *17.  As stated before, when one of the Chiefs asked who were the other firefighters with the violating photos, the Plaintiff refused to name those individuals.  Marshall, at *17-18.  Moreover, one Chief stated that if there were other violators “they would have been treated exactly the same way as” the Plaintiff.  Marshall, at *18.

Since there was no proof the Chiefs had knowledge of other firefighters violating any of the City or Department’s rules and regulations, the Plaintiff could not make a prima facie case of gender discrimination.  Marshall, at *18. 

Retaliation Claim

The Court of Appeals found the Plaintiff failed to plead a Title VII retaliation claim.  Marshall, at *22.  These pleading defects included statutory failures and alleging facts that showed the Plaintiff engaged in a protected activity.  Marshall, at *23. The Court of Appeals further agreed that the lack of notice for the retaliation claim prejudiced the Defendant to support the Court’s ruling.  Id. 

Bow Tie Thoughts

What If…

This case would have raised some very interesting issues if the fire captain had not been able to access the photos publically and questioned the Plaintiff on a private profile. 

Can an employer, after receiving a complaint and launching an investigation, compel an employee with strict public performance guidance to show what is on a private profile?  What if this private profile was accessed from a work computer? 

It is a matter of time before that case is litigated. 

Thoughts on Social Networking

I think cases like this one will come up again.  This was not the first social networking case and it certainly will not be the last.

Social networking sites allow for a collision between professional and private lives in ways people are still beginning to understand.  Human Resource departments are either developing polices or realizing they need to develop policies. 

Social networking sites are an excellent way to promote oneself, find people with similar interests and learn about industry trends.  These sites also excel at putting people back in touch with classmates from grade school to grad school.

However, people need to be very careful when mixing their professional lives with their personal ones online. 

One potentially hot button issue is someone posting a political charged status messages that can offend anywhere from 49% to 51% of their “Friends.”  If someone has coworkers as “Friends” who disagree politically with a comment, it is not hard to imagine that causing strife, perhaps just under the surface,  in the office. 

I think the best advice for those mixing professional and person lives is to be careful what photos or comments you post.

Undue Burden Arguments Must Be Specific, Not Speculative

Seger v. Ernest-Spencer Metals is the story of an industrial accident where the Plaintiff suffered serious bodily injury. 

In the ensuing discovery battle, the Producing Party claimed the electronically stored information was from sources that were not reasonably accessible due to undue burden.  Seger v. Ernest-Spencer Metals, 2010 U.S. Dist. LEXIS 12754, 22 (D. Neb. Jan. 26, 2010).  Moreover, the Producing Party also claimed the discovery imposed undue burden for them to conduct the review to find the ESI responsive to the discovery request. Id.

The Requesting Party countered that the requested ESI was narrowly tailored and volunteered to pay “reasonable charges” for the collection of the electronically stored information.  Seger, at *23.  The Requesting Party even went so far to offer to hire a neutral expert to cull the data set.  Id.

Defiantly Claiming Undue Burden

The Producing Party did not surrender their objections on producing email, claiming the requests were overly broad, plus the production would be expensive and “time intensive.”  Seger, at *23. 

The Producing Party’s Director of Information Technology described the methodology to search and collect the ESI via affidavit to support the undue arguments:

Searches would be required on each person’s shared network drive and existing hard drive.  Seger, at *24. 

[I]t would take “78 to 117 man-hours” to respond to just one request. Id.

Accomplishing the task would be disruptive to personnel and operations. Id.

The Director of Information Technology could not estimate the resources required to complete the search because of its breadth. Id.

In a not very surprising argument, the Producing Party claimed the Requesting Party had to show good cause for the requested electronically stored information.  Further, the Producing Party argued the cost burden for production shifted to the Requesting Party due to the burden of production.  Seger, at *24. 

The Requesting Party’s Excuse Me Moment

The Requesting Party questioned the Producing Party’s undue burden arguments and took aim at the Director of Information Technology’s “undue burden” affidavit with his own deposition testimony.

The Director of Information Technology testified in deposition how the Producing Party collected electronically stored information responsive to the discovery requests.  Seger, at *24-25. 

The deposition testimony outlined a shrinking universe of time and cost to collect the responsive electronically stored information for production. Seger, at *25. 

The Director stated there were under 1,000 computers and five exchange servers at the relevant Producing Party’s location.  Seger, at *25.  Moreover, not all of the Producing Party’s employees had email accounts. Seger, at *25. 

The Director explained that the collection time for responsive electronically stored information would depend on how much email was possessed by that specific user.  Seger, at *25. 

The Director of Information Technology based his time estimated on assumptions of the Producing Party’s average email.  Seger, at *25.  He did not have the actual numbers, but could have found the information.  Id.

The Director of Information Technology estimated six to nine hours to collect each user’s email because he did not “trust the margin of error in the software (estimating two to three hours as opposed to one to several minutes) and organizing the CD after copying the information (estimating one to two hours as opposed to minutes).”  Seger, at *25.  The time estimate also included processing time and indexing.  Seger, at *26.

The Director also testified the Producing Party’s IT department had conducted email searches over 35 and 100 mailboxes without “undue burden” on the department.  Seger, at *26.

Court’s Analysis on Undue Burden

The Court held the Producing Party failed to prove any undue burden from the discovery request.  Seger, at *27-28. 

The Producing Party’s arguments focused on general descriptions of collection methodology, not anything about the specific individuals subject to the discovery request.  Seger, at *28.  Nothing was stated if the specific individuals had email accounts or if they did, what was the size of their email mailbox.  Id.

The Producing Party’s specific user information was necessary to make relevant estimates for production costs, opposed to mere speculation of the average email user.  Seger, at *28.

The Court further found the undue burden time estimates were overstated because the Director of Information Technology included unnecessary quality control. Seger, at *28.

The Court ordered the Producing Party to supplement their responses to include the non-privileged electronically stored information to the specific discovery request at issue.  Seger, at *28.  Additionally, the Court required the Producing Party to submit an affidavit that described the production process.  Seger, at *28-29.

Bow Tie Thoughts

Arguing Undue Burden

Judges want facts, not speculation, when it comes to undue burden.  Merely standing in court and claiming e-Discovery is expensive will not be a winning argument.  Parties must specifically prove the costs for collection; how long it will take to collect ESI from key players; the actual process for rendering the ESI in a reasonably usable form in a litigation support platform; time to perform the actual work; and any other facts showing undue burden. 

Mustering these arguments will require someone with knowledge, perhaps a person most knowledgeable from the client’s IT department or an e-Discovery expert, or even both. 

Collection Methodologies

Collection challenges from multiple custodians can be avoided with proper collection methodologies.  I am generally not a fan of companies performing their own collections.  This could result in ESI not being collected correctly and client subject to cross-examination. It might also give a false appearance of the destruction of data, even if the ESI was collected correctly. 

With that said, there are cases where self-collection by a client is appropriate.  This could be where the client has very advanced technology and the client has the most knowledge to collect the data.  There are also sophisticated clients that have staff specifically trained in collecting ESI with EnCase, FTK, Paraben, Pinpoint Labs, or one of the other fine products on the market, who can do defensible collections. These individuals need to also be able to endure a cross-examination in court on how they performed the collection in a defensible manner.

However, in cases where you have numerous employees and specific ESI to collect from secondary players, a tool that has self-executing collection technology is a cost saving measure. 

These technologies are collection software that can fit on remote media, such as a thumb drive or external hard drive.  A collection protocol is written by an expert that can perform a targeted collection based on keywords, dates, custodians or other limiting factors to avoid a total imaging of a hard drive.  The custodians plug-in the removable media to a USB port, follow the instructions and disconnect the device when finished.  The device is then sealed in an evidence bag, an affidavit filled out describing what was done and sent to the expert for processing, review and production.

Of course, there might be situations where a complete image is required for preservation purposes.  Moreover, you might want the key players in a case to have their computers preserved by an expert instead of a self-executing collection.  However, a targeted collection to avoid having to review irrelevant electronically stored information can save costs and avoid undue burden situations.

A Discussion with Magistrate Judge Facciola Webinar on Forensic Searches, Sufficiency of Responses and Current e-Discovery Issues

Please join United States Magistrate Judge John M. Facciola for a webinar on current issues in e-discovery.  This webinar will explore when it is proper to order a forensic search of a hard drive, compliance with Federal Rule of Civil Procedure Rule 26(g) and the mandatory exclusion of ESI for failure to disclose.  Bow tie tips may also be discussed. 

 Please join us on March 24, 2010 at 10:00 am PST/1:00 pm EST for this special webinar.  To register, please sign up here.

About United States Magistrate Judge John M. Facciola:

Magistrate Judge John M.  Facciola is one of the leading judges on electronically stored information.  He has been the keynote speaker at Legal Tech New York and numerous events discussing electronic discovery.

Judge Facciola was appointed a United States Magistrate Judge for the District of Columbia in August 1997. He received an A.B. in 1966 from the College of the Holy Cross and a J.D. in 1969 from the Georgetown University Law Center.  Following law school, Magistrate Judge Facciola served as an Assistant District Attorney in Manhattan from 1969 to 1973, and was in private practice in the District of Columbia from 1974 to 1982.  He joined the U.S. Attorney’s Office in 1982 and served as Chief of the Special Proceedings section from 1989 until his appointment as Magistrate Judge. Magistrate Judge Facciola is an adjunct professor of law at Catholic University.  He is a fellow of the American Bar Foundation and a member of the Board of Governors of the John Carroll Society. (Source: http://www.dcd.uscourts.gov/facciola-bio.html)

Note: Judge Facciola’s participation in the D4 Webinar Series is for educational purposes only and is not an endorsement of D4 LLC.

Exclusion of MySpace Evidence in Gang Related Murder Trial

A Defendant in a gang related murder and assault case sought to introduce evidence of the victim’s sister’s MySpace page to show the victim’s violent nature toward a rival gang; a propensity for violence; and that the victim started the fight that ended in his death.  People v. Williams, 2010 Cal. App. Unpub. LEXIS 1251, at *23 (Cal. App. 2d Dist. Feb. 23, 2010). 

The Court excluded the MySpace profile as evidence. 

The Sister’s MySpace Profile

The victims were brother and sister.  The brother was killed in a gun fight with the Defendants. 

The sister’s Myspace profile contained a series of photos (or video, the opinion is not clear) of the siblings dressed as rival gang members.  The MySpace evidence depicted the brother pretending to punch the sister and her falling to the ground.  Williams, at *23. 

The MySpace evidence was described as a videotape of the profile.  Id.  This implies that a video camera was set to record the profile.  It is also highly possible the profile contained video and it was collected as a video file. 

One of the Defendants tried to use the video to show the victim was violent toward members of the rival gang.  Williams, at *23.  The State objected to the video evidence on both foundational and relevancy grounds.  Id.

The victim’s sister testified on cross-examination that the MySpace profile only contained “a picture of me and my brother, not us taking it as being a gang picture.” Williams, at *23-24. 

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury, Cal Evid Code § 352 (2010)).  Williams, at *24.

The Trial Court explained the evidence did not show any crime taking place.  The Trial Court stated: 

 ”[T]his is playacting. It is no different than Marlon Brando shooting the Godfather or something. Would that show a propensity to commit violence? No. So I am not going to allow it. I think it is irrelevant.”

Williams, at *24.

Appealing the MySpace Ruling

The Defendant claimed the exclusion of the MySpace evidence violated his Federal Due Process rights.  Williams, at *24.

The Court of Appeals held that the Trial Court did not abuse its discretion or violate any Constitutional rights in excluding the MySpace evidence.  Williams, at *25.

The Court of Appeals explained the videotape would have been repetitive of testimony and other evidence.  Williams, at *25.  As such, excluding the MySpace evidence of the victim playacting did not violate the Defendant’s Constitutional rights.  Id.

Bow Tie Thoughts

This unreported opinion leaves interesting web-collection questions that are not explored or fully explained in the decision.  While the Prosecutor did question foundational issues in the “videotape” of the MySpace profile, the exact collection methodology is not described.   

It is possible the Defendant actually used a video camera to record someone examining the profile.  It is also highly possible a screen capture tool was used to record the MySpace profile.  This would make sense if there was an embedded video on the profile, thus creating a video exhibit.  The resulting video capture might have then simply been called a “videotape” by the Court, instead of a MPEG file or other digital video file format.

The opinion also illustrates how social networking profiles can find themselves in litigation.  In this case, the Defendant attempted to use the profile as a defense.  There are situations where a social networking profile could be offered for impeachment, party admissions or non-party witness statements.

Attorneys should be aware social networking sites might contain relevant evidence supporting a claim or defense.  If there is relevant evidence, the party offering the evidence needs to address the basic admissibility requirements to authenticate the social networking evidence. 

Conversely, a party cannot simply mine social networking profiles in the hopes of making an opposing party look bad.   Evidence must to be relevant to be admissible.