101 Bow Ties

My 101^st post is different than any of my other postings to date: Here is the story behind the Bow Tie Law Blog and my thoughts on the practice of law.

I have an amazing career.  While I was at CT Summation, I traveled to Alaska, across Canada, met with judges and saw classic Americana with witnessing the lighting of the Christmas Tree in Rockefeller Plaza and the dying of the river green in Chicago.  My adventures have continued with D4 LLC, including a visit to Niagara Falls after one seminar and I am publishing this blog while I am in US Virgin Islands for a full day e-Discovery event. 

Stay tuned for a new webinar campaign this Fall, Paraben’s 2^nd Annual Forensic Innovation Conference and a mock trial with the Beverley Hills Bar Association. 

Reasons for the Bow Tie Law Blog

I love the law.  I also love the intersection between law and technology.  This began in law school studying the pilot program for PACER and as a research assistant for Professor Fred Galves on his article Will Video Kill the Radio Star? Visual Learning and the Use of Display Technology in the Law School. For the record, I came up with the homage to the Buggles.

I started the Bow Tie Law Blog in December 2008.  While it was not the best of times (I had been laid off by a litigation support vendor), BTLB provided me an opportunity to discuss current cases and e-Discovery issues.

My First Litigation Support Software

I first used CT Summation LG Gold 2.6 and Trial Director on a project that was originally supposed to be three months.  It lasted thirteen.  The case went all the way through motions in limine before we settled. 

I learned a lot on that case.  First, it was easier to search through a database then climb into a document repository.  Second, a small firm that can “command evidence” with a litigation support database can take on a larger firm with a small army of associates on a case.

One thing I learned about scanned paper: Get the project OCR-ed.  We had thousands of TIFFs that we had to search and annotate without the benefit of optical character recognition processing.  We could have saved hours if we had the ability to search the text of those TIFFs.  Auto Coding would have been Heaven. 

The Future for Lawyers

Technology’s effect on how we live our lives is told in glowing hymns by Don Tapscott in grown up digital and negative thunderbolts by Mark Bauerlein’s The Dumbest Generation.  Regardless of whether you agree with these authors, people are walking ESI generators. 

There are 160,000 active lawyers in the State of California (217,000 if you count the inactive members).  All must consider electronically stored information since the enacted of the California Electronic Discovery Act on June 29, 2009 and the California Rules of Court 3.724 requiring ESI to be discussed in the meet and confer process. 

The immediate future for lawyers in California, the Federal Courts and nearly every state in the Union is to understand electronically stored information.  Lawyers must be aware of requesting cell phone photos after a car accident; Lawyers must be aware of how to review ESI with litigation review software; and lawyers must know how to effectively communicate litigation holds to their clients and be able to intelligently discuss ESI with their opponents and the Courts.

These challenges are not insurmountable, but will require an active effort to learn about forms of production, work with trusted vendors and educate their judges on their clients’ electronically stored information. 

A Big Thank You

I look forward to my next 100 blog postings and appreciate everyone following me on Twitter, Gabe’s Guide, The Posse List and Complexd.

An Interesting Order…No Twitter in Court

Cameras in Courtrooms have been the cannon fodder for courtroom sketches for years.  A recent court order for a trial in Florida highlights how judges are keenly aware of technology and reporters.

 A temporary press room was set up for reporters covering a criminal trial.  The reporters would be allowed to bring their “cellular phones, Blackberries, iPhones, Palm Pilots, and other similar electronic devices, as long as they agree in writing to not email, text message, twitter, type or otherwise use those devices inside any courtrooms within this District.” United States v. UBS AG, 2009 U.S. Dist. LEXIS 67270, 3-4 (S.D. Fla. July 9, 2009), (emphases added).

The short and simple message of this order is very clear: Judges are savvy to technology, Web 2.0 journalism and are including these portable ESI generating machines into their orders for the press.  I also would bet good money judges are including similar instructions to jurors.

Juror Misconduct: When the Judge Says Don’t Talk About the Case, that Includes Facebook & Twitter

Who knew 140 characters, a few status messages, and tags could play a big role in a court opinion hitting juror misconduct? 

It is not a huge surprise in a criminal case involving politics, money and fraud. 

A Little Background: The Criminal Case against the Defendants

Multiple Defendants were charged with 141 counts of the following:

(1) Fraud and conspiracy to defraud the Pennsylvania Senate;

(2) Fraud and conspiracy to defraud Citizens Alliance for Better Neighborhoods (“Citizens Alliance”);

(3) Conspiracy to defraud the United States Internal Revenue Service (“IRS”);

(4) Fraud related to the Independence Seaport Museum (“ISM”); and

(5) Obstruction of justice and conspiracy to obstruct justice. United States v. Fumo, 2009 U.S. Dist. LEXIS 51581 (E.D. Pa. June 17, 2009)

To keep things interesting, one Defendant was a Pennsylvania State Senator.

The “Honorable” Senator was found guilty of 137 of the 139 charges against him.

Don’t Tweet the Trial

The Defendants claimed they were entitled to a new trial because one juror had Facebook status messages and Twitter “Tweets” during the trial.  Fumo, 184-185. 

Here is the short version of what happened:

One of the jurors worked in the HR department of a law firm.  Fumo,192. He also was a user of Facebook, Twitter and had a personal blog. 

Like many Web 2.0 savvy users, he would post status messages and “Tweets” about his day. These included messages about the trial, provided you knew what the juror was talking about, since he did not disclose any facts. 

Jury deliberations were under full steam…and a TV story ran on the trial on March 15, 2009.  Fumo,183-184.

The Defendants learned from the news report that one juror made online postings about the trial.  The Juror also saw the headline for the report and quickly deleted his Facebook and Twitter postings out of fear.  Fumo,183-184. 

The Defendants in turn immediately filed a motion alerting the Court to disqualify the juror.  Fumo,184. 

Just What Did the Juror Say?

Twitter Postings

The juror’s one Twitter posting was simply: “This is it … no looking back now!” Fumo, 193-194. 

Facebook Postings

Below is the Court’s summary of the Facebook Status Messages:

Sept. 18, 2008 (apparently upon continuance of trial judge due to judge’s illness): “… is glad he got a 5 week reprieve, but could use the money …”

Jan. 11, 2009 (apparently referring to the end of the government’s case): “… is wondering if this could be the week to end Part 1?”

Jan. 21, 2009: “…wonders if today will really be the end of Part 1???”

Mar. 4, 2009 (conclusion of closing arguments): “…can’t believe tomorrow may actually be the end!!!!”

Mar. 8, 2009 (Sunday evening before second day of deliberations): “…is not sure about tomorrow …”

Mar. 9, 2009 (end of second day of deliberations): “…says today was much better than expected and tomorrow looks promising too!”

Mar. 13, 2009 (Friday after completion of week of deliberations): “Stay tuned for the big announcement on Monday everyone”

 Fumo, 194-196.

No RT’s from the Defendants

Defense Counsel wanted the juror ”removed” from the trial, to borrow Twitter language.  They claimed the juror’s “behavior and his ‘utterly incredible testimony’ undermined his impartiality as juror.” Fumo,186-187.

The Court Tagging the Juror’s Comments

The Court held an in camera review one day after the news report.  Fumo,185. 

The Court was extremely supportive of the juror’s integrity and stated the following:

I just – - honestly, want to make sure my thoughts are on the record about this guy. My take on him is entirely different. My take on him is this is one conscientious guy trying very much to comply with all the rules and regulations that I’ve established more so then I would ever imagine that a juror would do. And I think that, you know, I’ve heard him and I don’t have any trouble with keeping him on the jury. Fumo, 185-186

The Court & Web 2.0

To the Court’s credit, the Judge included the “About” pages for both Facebook and Twitter.  Footnote 27 nicely summarizes Facebook’s Mission Statement “to give people the power to share and make the world more open and connected.”  Fumo, 184, fn 27. Additionally, the Court summarized Twitter as “a real-time short messaging service that works over multiple networks and devices.”  Fumo, 185, fn 27.

The Court’s RT on “This is it … no looking back now!”

The Court found that the juror’s ONE Tweet suggested “the jury’s decision had been made and that it was too late to influence him.”  Fumo, 194.  Moreover, the message was “so vague as to be unclear.” Fumo, 194.

The Tweet had no details on the case facts or showed any favor/disfavor to anyone in the criminal trial.  Fumo, 194.

Facebook Settings & Status Messages

The Court’s analysis of the Facebook Status Messages included reviewing the juror’s privacy settings.  The juror belonged to the 600,000 member Philadelphia network.  Anyone in this network could view his status messages.  Fumo, 195. 

The juror’s profile was configured so only “friends” could post comments on his profile.  “Friends” could either post messages on the juror’s “Wall” or send a Facebook Message.  Fumo, 195-196. 

Defense Counsel questioned the juror on for whose benefit he was writing his status messages.  The juror explained that his postings were:

“…more for my benefit to just get it out of my head, similar to a blog posting or somebody journaling something. It’s just to get it out there. And that’s what a lot of Facebook … it’s just to get — a way to electronically gets thoughts off your mind.”  Fumo, 196.

The Juror was questioned on whether any “non-friends” ever contacted him or did anything to influence his thinking on the case.  The juror answered:

“No. Because – - again, because they have to be someone that I befriended in order to be able to post on the wall. Whether or not they can see it, I’m not sure. But I know they can’t post on it without being one of my friends.” Fumo, 198-199.

The questioning of the juror was very extensive.  Mark Zuckerberg, founder of Facebook, would have been very proud of the juror’s explanation of Facebook’s appeal during the Defense questioning.  The juror described that “some people use [Facebook] for connection between other people. I use it, personally, as a way to journal my thoughts and get everything out.” Fumo, 199-200.

The Court’s Findings

The Court found no evidence that the juror was influenced by his Facebook postings.  There was no evidence “random individuals” contacting him.  Moreover, there was no evidence the juror’s “opaque” postings were detailed enough for members of the Philadelphia network to know what the juror was talking about. Fumo, 201.

Bow Tie Thoughts

Given the number of iPhone, BlackBerry and other smart phone users who can be in a potential jury, lawyers and judges should include “No Twitter, Facebook or social networking” in the jury instructions.

Dodging a Mistrial for Juror Misconduct

In an age where reporters are Tweeting from Courthouses and Citizen Paparazzi (Snaparazzi) roam the streets with iPhones, one can imagine a slip of the tongue resulting in juror misconduct. 

In the nightmare case of an elderly defendant who drove through a farmers’ market, the question of juror misconduct surfaced via a reporter’s blog.  People v. Weller, 2009 Cal. App. Unpub. LEXIS 4685, 44-45 (Cal. App. 2d Dist. 2009).

A reporter on her post-verdict blog stated that one juror sought spiritual counseling from his minister during a recess from deliberations.  Weller, 44.  

The Problem: A juror cannot discuss a pending trial with a nonjuror.  Weller, 44.

The only evidence offered to show any juror misconduct was the blog.

The blog was insufficient to show any misconduct, because there was no evidence that the juror discussed the case with his minister.  Weller, 44. 

Things could have gotten exciting (on an evidentiary level) if the juror had been questioned on what he talked to his minister about, which could have resulted with the juror claiming the clergy- penitent privilege.

This privilege gives the penitent the right to refuse to disclose a penitential communication.  Cal Evid Code § 1033. 

One can wonder if the Defense could compel disclosure to show juror misconduct by claiming the Defendant’s Constitutional right to a fair trial. My guess would be “no,” because the verdict had already been issued and an appellate court will not be doing any fact finding.

If this had come up during trial, then perhaps the Trial Court would have simply excused the juror to avoid a clergy privilege vs Constitution showdown.

Anyone who has confidences to maintain, be it a juror, or a doctor, or anyone who wants to hold a private conversation, should be very careful with what they say in public. The ability for “citizen journalists” to post information in “real time” on Twitter, Facebook or a blog is a fact of life that can ruin your day.

Surfing for Personal Jurisdiction from Online Activity

The internet has made applying the traditional touchstones for personal jurisdiction challenging. Ever so slowly courts have addressed the personal jurisdiction questions in internet cases, to arrive at a point now where there may not be bright lines to guide us; but there are definitely guidelines emerging.

U.S. District Court Judge Edward J. Lodge, Sky Capital Group, LLC v. Rojas, 2009 U.S. Dist. LEXIS 37132, 11 (D. Idaho Apr. 30, 2009)

May 13^th is the anniversary of Pennoyer v. Neff, 95 U.S. 714 (1878), one of the great personal jurisdiction cases, followed by International Shoe Co. v. Washington, 326 U.S. 310 (1945), Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987) and Burnham v. Superior Court of California, 495 U.S. 604 (1990).  It is only appropriate to write about personal jurisdiction on the anniversary of this major decision. 

The United States Constitution requires a court to have personal jurisdiction over the parties to decide a case in controversy. U.S. CONST. Amend. XIV. Perhaps it is just guys in bow ties and Civil Procedure professors, but the intersection of online activity and a Court exercising personal jurisdiction is an exciting area of case law.  The entire concept of where is it fair to sue someone, or where there are minimum contacts from online business, are topics that could make a law student’s head spin. 

It is antithetical to our civil justice system to have people sued as a “result of random, fortuitous, or attenuated contacts or on account of the unilateral activity of third parties” due to blogging, Facebook or people simply maintaining a website.  Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471 (U.S. 1985).  Courts have been crafting personal jurisdiction requirements for online contracts and torts for a decade.  The following is one of those cases. 

Truck Stops & Economic Torts

Sky Capital Group, LLC v. Rojas, 2009 U.S. Dist. LEXIS 37132 (D. Idaho Apr. 30, 2009) is a story of alleged trade secret violations by out-of-state Defendants intentionally accessing the Plaintiffs computer servers. Sky Capital Group, 12.

Sky Capital Group, LLC (dba Roady’s Truck Stops), an Idaho limited liability company, employed the two Defendants after a business acquisition. One Defendant was based in Florida and the other in Wisconsin. 

Roady’s sued the Defendants for trade secret violations and economic torts by unlawfully accessing Roady’s administrative and email servers located in Idaho after their employment ended.

Roady’s sued the Defendants in Idaho and the Defendants sought dismissal for lack of personal jurisdiction.

Short Overview of Personal Jurisdiction Rules

The 9^th Circuit requires a three part test to exercise specific personal jurisdiction:

(A) The nonresident defendant must purposefully conduct activities within the forum;

(B) The claim must arise or result from forum-related activities; and

(C) The exercise of jurisdiction must be reasonable. Sky Capital Group, 6, citing Doe, 248 F.3d at 923.

Knowledge that the plaintiffs are in a specific state is not enough for a court to exercise jurisdiction.  Courts require “something more” to show a defendant directed their actions to a specific state.  Sky Capital Group, 11.

The Court found that the Defendants accessing the Plaintiffs’ servers was the “something more” the Court needed to exercise personal jurisdiction over the Defendants. 

Intention Acts: Accessing Servers

The “intentional actions” of accessing the Plaintiffs’ computer serves included logging onto the system, and accessing proprietary information including, “recorded customer lists, vendor lists, pricing information, marketing information and other valuable customer and company information.”  Sky Capital Group, 12.  Such directed activity in accessing the computer systems was such that the Defendants “should have reasonably anticipated being sued in Idaho.”  Sky Capital Group, 13. 

Expressly Aimed at Idaho

The “expressly aimed” requirement is defined as “when the defendant is alleged to have engaged in wrongful conduct targeted at a plaintiff whom the defendant knows to be a resident of the forum state.” Sky Capital Group, 14, citing Bancroft & Masters, Inc. v. Augusta Nat’l, Inc., 223 F.3d 1082, 1087 (9th Cir. 2000). 

This rule also requires “something more” besides an action having a foreseeable effect in a forum state for personal jurisdiction.  Sky Capital Group, 14. 

The defendant had to knowing a plaintiff is a resident of “the forum state and that the harm resulting from the intentional act will be suffered in the forum state.” Sky Capital Group, 14-15. 

The fact the out-of-state Defendants knew Roady’s was located in Idaho, coupled with the allegation of taking proprietary business information to compete directly with the Roady’s, was a sufficient showing to meet the expressly aimed requirement.  Sky Capital Group, 15.

Causing Harm in Idaho

The Court found the “harm in the forum state” also met, based on the fact the Defendants knew the Plaintiff was located in Idaho and their conduct would cause the Plaintiff harm.  Sky Capital Group, 16-17. 

Lessons Learned

Way back when I had Civil Procedure in 1998, the course books had not even touched personal jurisdiction from online activity.  This will become standard analysis as Generation X lawyers become partners and Net Geners become associates.  The volume of online business, Web 2.0 activity, let alone continued advancements of iPhones and BlackBerries, will ensure these issues continue to develop. 

I’d just like to avoid a giant split Supreme Court decision like Asahi Metal Industry Co. v. Superior Court when the Courts determine bright lines for personal jurisdiction from online activity.

Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

The sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

The Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.

A Note on Judicial Notice of Blogs and Admissibility of Electronically Stored Information

In a trade secret case, the Defendants attempted to strike the Plaintiffs’ complaint pursuant to the California Anti-SLAPP statute.  The Defendants failed to make a prima facie showing that the complaint arose from protected activity.  World Fin. Group v. Hbw Ins. & Fin. Servs., 2009 Cal. App. LEXIS 553 (Cal. App. 2d Dist. Apr. 16, 2009).

The Defendants on appeal requested judicial notice of blogs, online articles and websites.  This argument and request was made for the first time on appeal.  The Defendants claimed the online material showed the content of the communications at issue here involve a matter of public interest.  Defendants claimed the Court needed to take judicial notice of the evidence pursuant to California Evidence Code section 459(a)(2).  World Fin. Group, fn 7, 13-14.

California Evidence Code 459(a)(2) states, in relevant part:

The reviewing court shall take judicial notice of :…(2) each matter that the trial court was required to notice under Section 451 or 453. The reviewing court may take judicial notice of any matter specified in Section 452. The reviewing court may take judicial notice of a matter in a tenor different from that noticed by the trial court.

The Court pointed out one an error in Defendants’ use of California Evidence Code 459(a)(2): The statute does not compel judicial notice of documents that were NOT offered in the trial court.  World Fin. Group, fn 7, 14.  The argument that Defendants’ speech involved a matter of public interest (as evidenced by the online material) was being advanced for the first time on appeal and had not been presented to the trial court.  Id. This ran counter to the judicial notice statute and was denied for additional reasons. 

Judicial Notice was designed so a party does not have to formally present evidence to prove a fact that is “outside the area of reasonable controversy.”  Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence, §8.6(B), citing FED. R. EVID. 201, Advisory Committee Note. 

Examples of judicial notice for electronically stored information include:

Online videos of “The Guy from Boston” from a local news channel, other websites and a blog.  Ligotti v. Garofalo, 2008 DNH 123, fn 15, 21-22 (D.N.H. 2008).

Website information from Amazon.com and American Academy of Allergy Asthma & Immunology in ERISA action.  Arkfeld, §8.6(C), citing Wible v. Aetna Life Ins. Co., 375 F. Supp. 2d 956 (C.D.Cal.Jun.20, 2005).

Online meeting minutes from the City’s Board of Mayor and Aldermen attached to an attorney’s affidavit as a public record.  Williams v. City of Franklin, 586 F. Supp. 2d 890, 894 (M.D. Tenn. 2008).

The admissibility of electronically stored information can take many paths in court, from party admissions on blogs, present sense impressions on Twitter or layered hearsay on cell phone video sent with an accompanying text message.  However, these issues almost always have to be raised at the trial court and not for the first time on appeal.

What is a Facebook Message? Email? Blog? Both?

A Federal Court in Puerto Rico addressed a specific question: What sort of ESI is a social networking message? Is it an email? A blog? Or something else?

Maldonado v. Municipality of Barceloneta, 2009 U.S. Dist. LEXIS 19842 (D.P.R. Mar. 11, 2009) is a case where a party sought a protective order to bar the defendant from contacting her.  The means of communication: A Facebook message.

The Plaintiff, Alma Febus was contacted by Julio Diaz on Facebook regarding a separate lawsuit.  The first communication was Facebook Group invitation.  The Plaintiff ignored the Group invitation.  The second was a message from the Defendant.  Maldonado 6-7. The message stated:

If you want to see the evidence that exists against the municipality let me know so that you can inform yourself well and please consult with a lawyer your civil responsibilities as far as defamation. Soon we will be filing a lawsuit and you could be included. My only request is that you are objective when mentioning my name. Maldonado, 8.

The Plaintiff claimed the message violated the Federal witness tampering statue and sought a protective order.  Maldonado, 7-8.

The Court examined a subtle issue: what exactly is a Facebook message?  The Defendants claimed the Facebook message was a blog.  The Court noted it was not a blog, which is defined as a “frequently updated web site consisting of personal observations, excerpts from other sources, etc.”  Maldonado, 8-9, citing Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp. 2d 1205, 1209 n.3 (D. Nev. 2008).

The Court rejected the Plaintiff’s position the Facebook message was an email.  The Court stated:

This type of communication, a message sent on Facebook, a “social networking website,” which has not been considered by this circuit or in any other circuit to the court’s knowledge, is likely a hybrid of the two. Maldonado, 8-9.

The Court noted that since the Facebook message was only viewable in the Plaintiff’s Inbox, it was more like an email.  This removed any potential First Amendment protections because it was not publicly viewable.  Maldonado,  9. However, it is worth noting the Court viewed Facebook messages as a hybrid of a blog and email.

The Court ultimately found against issuing a protective order, finding no evidence of intimidation by the Defendant.  The threat of future litigation was insufficient to find witness tampering.   

Social networking will be an area to watch.  The potential for jury tampering, witness intimidation can be carried out in any medium.  Social Networking sites are by no means off the list. 

Social networking sites will likely be in a league of their own when it comes to electronically stored information.  How they will be treated will depend on what is at issue.  If public status messages are conveying a threat or publishing confidential information, the social networking site might be treated like a blog.  If messages are at issue, more like email.  Regardless, attorneys must understand how social networking sites work and what is at issue for effective representation.

Blogs Comments as Existing State of Mind Exception to the Hearsay Rule

The University of Kansas sued a sportswear company claiming violations of state and federal trademark laws through the unauthorized and unlicensed sale of the school’s apparel.  Univ. of Kan. v. Sinks, 565 F. Supp. 2d 1216; 2008 U.S. Dist. LEXIS 23765 ( D. Kan., March 19, 2008 ).

The Plaintiff offered internet postings to show confusion and consumer reaction to the Defendant’s products.  The Defendant brought a motion to strike the blog postings as inadmissible hearsay. 

Plaintiffs claimed the blog postings were not offered for the truth of the matter asserted, but to show the state of mind of the posters under Federal Rule of Evidence 803(3).   This Rule states:

Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.  

 The parties engaged in a battle of precedents, with the Defendants citing cases where internet evidence was barred as “any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed. R. Civ. P. 807.” Univ. of Kan. v. Sinks, 1230, citing St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774 (S.D. Tex. 1999). 

 The Plaintiffs in turn cited cases where hearsay evidence from the internet was admissible, including where internet postings were admitted “as evidence of confusion because they were not submitted for the ‘truth of the matter asserted’ and did not violate the hearsay rule.”  Univ. of Kan. v. Sinks, 1231, citing RDK Corp. v. Larsen Bakery, Inc., No. 02-C-0675, 2006 U.S. Dist. LEXIS 53298, at *31, (E.D. Wis. July 31, 2006).

 The Court found the hearsay evidence was not offered for the truth of the matter asserted, but to support the claim of actual confusion.  The internet postings were only to be admitted to prove the state of mind of the posters, namely, they were confused. Univ. of Kan. v. Sinks, 1231.

 Cases like this will likely walk a fine line.  Courts will guard against hearsay being offered for the truth of the matter asserted.  However, considering the numerous ways people can express themselves online from blogs to Facebook status messages to to tags on photos to Twitter, these issues will continue to be litigated.

Standards to Identify Anonymous Posters for Defamation

The internet is creating emerging legal issues, from jurisdiction to discovery. The identification of anonymous bloggers-posting defamatory statements on the internet–is one of those issues.  

Judge Rory J. Bellantoni, Ottinger v. Non-Party The Journal News

In Ottinger v. Non-Party The Journal News, 2008 N.Y. Misc. LEXIS 4579 (N.Y. Sup. Ct. 2008), the Plaintiff sued Doe Defendants for anonymous posts on a newspaper website.  The anonymous postings on the newspaper blog claimed that the Plaintiffs bribed local government officials, had fraudulent deeds and other less than flattering statements.

The Plaintiff brought a third party subpoena against the newspaper to identify the anonymous posters.  While the posters could not be identified by viewing the newspaper blog, the individuals who made the postings had to create screen names in order to make any comments on the newspaper blog. 

The newspaper challenged third party subpoena to identify specific users who left the defaming messages.

 The Court outlined the following test to identify the anonymous posters:

 1. Plaintiff had to undertake efforts to notify the anonymous posters that they were the subject of a subpoena and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve their opposition. 

 2. Plaintiff had to identify and set forth the exact statements purportedly made by each anonymous poster than plaintiff alleges constitutes actionable speech;

 3. Court needed to review the complaint and all information to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named defendants and sufficient evidence to support each claim; and

 4. The court had to balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff properly to proceed.  See, Ottinger, 5.

 Points 1 and 2 were accomplished by posting the on the newspaper blog the statements at issue and the screen name that posted the statement.  The Plaintiffs had to specifically post for Point 1 (a) the existence of the special court proceeding to identify the anonymous posters, (b) the relief Plaintiffs’ sought, and (c) the fact that any individual who believed that their rights might be affected could seek to intervene anonymously in the special proceeding.  Ottinger, 5-6, citing Dendrite International v. Doe 342 N.J. Super. 134, 775 A.2d 756 (2001).

 The Court found the Plaintiff met the remaining requirements, stating that the complaint established Plaintiffs had set forth a prima facie cause of action. The Plaintiffs also produced sufficient evidence supporting each element of its cause of action, except that of constitutional malice. Ottinger, 6.  The court found the constitutional malice element would be difficult to prove without knowing who made the defamatory postings, thus the Plaintiffs did not need to meet the constitutional malice requirements for the early disclosure. 

 In this case, the newspaper had to produce any information it had on the identities of anonymous posters.  One does not need to spend much time surfing on news articles or social networking sites to see questionable insults between posters on news articles.  While people expressing themselves is protected by the First Amendment, online actions that rise to the level defamation will likely be more common with lawyers and judges facing these issues on a regular basis.