I Have this Favor to Ask of You: Don’t Betray the Family with Third-Party Discovery

You should never betray the family…and one such betrayal resulted in trademark litigation over Mafia Wars. 

Now You are Part of the Family

For those not familiar with Mafia Wars (or you spend a lot of time clicking “Ignore”), it is a game on social networking sites such as Facebook.  Players earn “virtual currency” for “Virtual Goods” on the game by doing “jobs.”  Zynga Game Network, Inc. v. Williams, 2010 U.S. Dist. LEXIS 57746, 1-3 (N.D. Cal. May 20, 2010).

The Plaintiffs brought an action (or job) against the Defendants for the unauthorized sale of “Virtual Goods” with three infringing domain names and related services.  The allegedly infringing websites allowed players to compete against other Mafia Wars users who obtained their own Virtual Goods from the Plaintiff.  Due to this infringement, lawyers were brought in to whack the Defendants. 

What is the Interest for My Family?

The Plaintiff needed to identify who exactly were the infringing Defendants that crossed the family.  Instead of solving the problem the Chicago Way, they sought third-party discovery from GoDaddy.com, Inc., Microsoft Office Live, and Paypal.  In short, they were following the money. 

The third-parties were each sent a virtual horse head in the form of a Federal Rule of Civil Procedure Rule 45 subpoena. 

The Plaintiff sought from GoDaddy and Microsoft “all billing and account records (including all Internet domain names), server logs, website content, contact information, transaction histories and correspondence for the persons or entities that have purchased services from [pertinent hosting site name] in connection with the Internet domain names…” Zynga Game Network, Inc., at *7-8. 

The request against PayPal sought “all billing and account records, server logs, contact information, transaction histories and correspondence for the persons or entities that have established accounts with PayPal, Inc.,…” related to specific email addresses used by the Defendants.  Zynga Game Network, Inc., at *8. 

Settling Family Business: Third-Party Requests

Once the moving papers were wrapped around a fish, the Court summarized the requirements for a Rule 45 request. 

Rule 45 enables a party to subpoena third-parties for electronically stored information (in addition to other discovery).  Zynga Game Network, Inc., at *4.  The scope of Rule 45 is same as Rule 34 requests on a party and limited by Rule 26.  Id.    

The following are the limiting factors under Federal Rule of Civil Procedure Rule 26(b)(2)(C)(i)-(iii):

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Zynga Game Network, Inc., at *5.

The Ninth Circuit requires “good cause” if a party is seeking discovery prior to the Rule 26(f) meet and confer.  Zynga Game Network, Inc., at *5, citing In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008).  Good cause is often applied and found in infringement cases.  Zynga Game Network, Inc., at *6.

Your Sins are Terrible: The Test for Limited Discovery

The four-part test to conduct limited discovery to find the Defendants:

(1) Identifying the Defendants with enough specificity to allow the Court to determine whether the Defendants are a real person or entity who could be sued in federal court;

(2) Recounting the steps taken to locate the defendant;

(3) Showing that its action could survive a motion to dismiss; and

(4) Filing a request for discovery with the Court identifying the persons or entities on whom discovery process might be served.

Zynga Game Network, Inc., at *6-7, citing Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

The Plaintiffs argued they met the four-part test, because of the following:

            1) The Defendants created and operated the infringing websites;

            2) The Plaintiffs tried identifying the Defendants with the Whois public database; examining other websites; reviewing source code from the websites; and trying to contact the Defendants at their listed addresses;

            3) The Plaintiff demonstrated the Defendants violated the Plaintiff’s trademarks;

            4) The limited discovery would allow the Plaintiff to identify the Defendants.

            Zynga Game Network, Inc., at *7.

Only Don’t Tell Me You’re Innocent…

The Court granted the Plaintiff’s limited discovery…in part. 

The Court stated that “limited” discovery required the Plaintiff narrow their requests to only what was needed to determine the Defendants’ true identities and locations.  Zynga Game Network, Inc., at *9.

The Court allowed the limited discovery as follows:

Subpoena on GoDaddy to produce “all documents necessary to obtain the name, current and permanent addresses, telephone numbers, and valid e-mail addresses of the owner(s)” of the infringing websites to identify and locate of the Defendants.

Subpoena on Microsoft to “produce all documents necessary to obtain the name, current and permanent addresses, telephone numbers, and valid e-mail addresses of the owner(s)” of the infringing websites to identify and locate of the Defendants.

Subpoena on PayPal to “produce all documents necessary to obtain the name, current and permanent addresses, telephone numbers, and valid e-mail addresses of the  person or entities that have established accounts with PayPal, Inc…”   

Zynga Game Network, Inc., at *10-11. 

Bow Tie Thoughts: It’s Not Like the Old Days…

In the age of social networking, free apps and instant downloads, trademark infringement can move at lightening speed.  Moreover, those infringing can hide behind a domain name and dummy email address with great ease.  Third-party requests to identify infringing parties will likely be a frequent application in Federal court.

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Harmless Error in Bank Robbery Conviction with Inadmissible Character Evidence from MySpace Profile

A Defendant in Georgia was convicted of multiple armed bank robberies and possession of a firearm by a convicted felon.  The Defendant was sentenced to 2,005 months in prison for his crimes.

On appeal, the Defendant claimed the District Court abused its discretion in admitting the “bad character evidence” of the Defendant’s MySpace profile, subscriber report and photographs to prove he committed the bank robberies “like a gangster.”  United States v. Souksakhone Phaknikone, 2010 U.S. App. LEXIS 9475 (11th Cir. Ga. May 10, 2010). 

The Court of Appeals found that the MySpace evidence was improperly admitted, but since there was overwhelming evidence of the Defendant’s guilt, it was harmless error. 

Government’s Attempted Use of MySpace Evidence

The Defendant was arrested after a string of bank robberies that culminated with a high-speed car chase that ended with the Defendant getting caught in barbed wire after attempting to flee on foot.  Phaknikone, at *2-4.  The Defendant confessed to several robberies after his arrest.  Phaknikone, at *4-5. 

The Government tried several times to admit the Defendant’s MySpace profile during the trial.  The MySpace profile was a prosecutor’s dream come true, complete with the profile name “Trigga FullyLoaded,” photographs of him with a gun, $ 100 bills that floated down the screen and rap music playing. Phaknikone, at *8-9. 

One theory the Government offered to use the MySpace profile photos was that the photos were “inextricably intertwined with [the Defendant’s] charged offense of possession of a firearm by a convicted felon.”  Phaknikone, at *6-7. 

After the jury was empanelled, the Government tried again to bring in MySpace photos to show the Defendant was “an individual who has access to having a gun, as shown and as evidenced by the brazen nature with which he publishes it to every single person on the internet through a MySpace account. . . . [I]t shows knowledge, it shows familiarity with guns.” Phaknikone, at *9.

The Government ultimately sought the admission of the Defendant’s MySpace profile, two photos and the subscriber report, which listed the “user’s unique identification number, registered first and last name, location, email address, date of registration, and IP address at registration.” Phaknikone, at *7-8. 

There is a complicated trial history with the various attempts to bring in the MySpace evidence.  One witness during the trial had robbed a bank with the Defendant.  The witness testified he knew the Defendant as “Trigga” and knew the Defendant also had a MySpace profile.  Phaknikone, at *11-12.  The witness further identified the Defendant from a MySpace photo after being shown the photo on direct examination, thus allowing the Government to lay the foundation for the MySpace evidence.  Phaknikone, at *12.

The District Court allowed the photos from the MySpace page to be admitted into evidence.  Phaknikone, at *12. However, the District Court viewed the profile itself and subscriber report as character evidence and inadmissible.  Phaknikone, at *12-13.

Not one to give up, the Government tried again to admit redacted portions of the MySpace profile and subscriber report.  Phaknikone, at *13. This redacted portion was ultimately admitted after testimony from a MySpace employee.  Phaknikone, at *15.

The Government in closing argument referred to the Defendant as “Trigga” and used a MySpace photo of the Defendant holding a gun in a car.  Phaknikone, at *15.  The jury was issued a limiting instruction that the evidence “could be considered to prove only intent or absence of mistake or accident.”  Phaknikone, at *15.

Character Evidence Recap

Evidence hornbooks go into great detail discussing character evidence.  The intersection of character evidence and social networking will fill a solid chapter in future publications, if not a book of its own. 

The Defendant argued on appeal that his MySpace profile was offered for no other reason other than “to show action in conformity therewith.” Phaknikone, at *18-19, citing Fed. R. Evid. 404(b).

The Court of Appeals agreed that the MySpace profile was inadmissible character evidence, but that the error was harmless.  Phaknikone, at *19.

The test for determining whether a trial court abused its discretion in admitting character evidence under Federal Rule of Evidence Rule 404(b) is as follows:

1) The evidence must be relevant to an issue other than the defendant’s character.

2) As part of the relevance analysis, there must be sufficient proof so that a jury could find that the defendant committed the extrinsic act.” United States v. Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc) (footnote omitted).

3) The probative value of the evidence must not be “substantially outweighed by its undue prejudice and the evidence must meet the other requirements of Rule 403.”

Phaknikone, at *19.

Courts apply this test “whenever the extrinsic activity reflects adversely on the character of the defendant, regardless whether that activity might give rise to criminal liability.” Phaknikone, at *19-20, citations omitted.

As the Court noted prior bad acts can be admissible to prove, “‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’” Phaknikone, at *20, citing Fed. R. Evid. 404(b).

Moreover, the character evidence rule under Rule 404(b) “’is a rule of inclusion . . . [and] 404(b) evidence, like other relevant evidence, should not lightly be excluded when it is central to the prosecution’s case.’” Phaknikone, at *20, citations omitted.

Proving Identity with the MySpace Profile

The Government’s use of the MySpace profile had to pass the “particularly stringent” analysis that the extrinsic evidence showed a “signature” crime.  Phaknikone, at *20-21.  As the Court summarized:

“When extrinsic offense evidence is introduced to prove identity, ‘the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused. In other words, the evidence must demonstrate a modus operandi.'” Phaknikone, at *21, citations omitted. 

Courts require that the extrinsic acts are uniquely the defendant’s “signature” crime to “insure that the government is not relying on an inference based on mere character–that a defendant has a propensity for criminal behavior.” Phaknikone, at *21, citations omitted. 

MySpace Evidence Inadmissible Character Evidence

The Court of Appeals wasted no time holding the MySpace profile failed the first part of the Miller test: The profile was not evidence of identity.  Phaknikone, at *22.

The Court found the subscriber report only contained the Defendant’s nickname, which the Government’s witness stated he knew on direct examination.  Phaknikone, at *22.

The photos from the MySpace profile offered nothing showing a “signature” crime or “a modus operandi about the bank robberies.”  Phaknikone, at *22.

Since the MySpace photos and subscriber report failed to show any evidence of modus operandi to prove identity, the evidence was inadmissible. Phaknikone, at *23.

The Court held:

The MySpace evidence is classic evidence of bad character, which was offered by the government to prove only “action in conformity therewith.” Fed. R. Evid. 404(b). The government wanted the jury to infer that, because Phaknikone is willing to publish these kinds of photographs online, under an incendiary alias, he is a gangster who is likely to rob banks. The district court abused its discretion by admitting the MySpace evidence. Phaknikone, at *23.

A Harmless Abuse of Discretion in Admitting the MySpace Evidence

The Court of Appeals held the admission of the MySpace evidence was harmless, because there was “overwhelming evidence” of the Defendant’s guilt.  Phaknikone, at *24.  The Government’s evidence included confessions to four of the bank robberies, in addition to other evidence of the Defendant’s guilt.  Id. 

Bow Tie Thoughts

The Court’s reasoning and review of Federal Rule of Evidence 404(b) is commendable.  Given the volume of information on social networking sites, prosecutors would be foolish not to search MySpace, Facebook or Twitter about a specific defendant. 

However, just because a prosecutor can find out about a defendant’s bad character on Google does not mean it is admissible.  One possible reason the Court spent so much time on the analysis of the MySpace evidence (besides exercising their Constitutional duties), was a warning shot to prosecutors: Don’t drag in evidence unless it is truly relevant and not to convict a defendant with “bad character” evidence.  While the Court found it was a harmless error, the amount of time spent on the issue shows it is not a harmless issue.

MySpace Public Party Invite Did Not Create a Foreseeable Danger

Events can be announced on a social networking site with a few  clicks of a keyboard. 

What happens when people attending an event announced on a social networking site get attacked by other event attendees?

In Melton v. Boustred, the Defendant announced on MySpace he would hold a party at his place where there would be music and alcohol.  Melton v. Boustred, 2010 Cal. App. LEXIS 447 (Cal. App. 6th Dist. Mar. 12, 2010).

The Plaintiffs were attacked when they arrived at the party.  The attack sounded gruesome, with the Plaintiffs beaten and stabbed by unknown attackers.  Melton, at *2.

The Plaintiffs sued the Defendant for negligence, premises liability, public nuisance and battery.    Melton, at *2.

The Trial Court granted the Defendant’s demur twice against the Plaintiffs’ Complaint and First Amended Complaint.  Melton, at *2.

The Footloose Theory of Liability

The Plaintiffs on appeal claimed the demur was improper because the Defendant owed the Defendants a legal duty “to protect them against the third-party criminal assault, because the risk of injury was foreseeable and the burdens of protecting against it were slight.”  Melton, at *3. 

The Plaintiffs’ theory: common sense dictated there was foreseeable danger because there was going to be music and alcohol at the public MySpace party.  

Legal Authority

The linchpin of the Court of Appeals’ analysis was whether there was a legal duty to the Plaintiffs from the Defendant.

First year Torts taught all lawyers that the elements for negligence are duty, breach, causation and damages.  Melton, at *3. 

Whether there is a legal duty depends on the “foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.”  Melton, at *7.

California Civil Code section 1714(a), states, in relevant part:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

Melton, at *7.

The Rowland v. Christian (1968) 69 Cal.2d 108, case established the following balancing test on whether there can be a deviation from California Civil Code section 1714(a):

The foreseeability of harm;

The degree of certainty that the plaintiff suffered injury;

The closeness of the connection between the defendant’s conduct and the injury suffered;

The moral blame attached to the defendant’s conduct, the policy of preventing future harm;

The extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and

The availability, cost, and prevalence of insurance for the risk involved. 

Melton, at *7-8.

The Rowland factors are also applied to premises liability.  Melton, at *9 [citations omitted].

Duty to Protect from the Party Conduct of Others

As a general rule, there is no duty to protect others from third-party conduct.  Melton, at *11, citing Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.

A party must show that a defendant committed some misfeasance, which is when a party’s actions have made “the plaintiff’s position worse and has created a foreseeable risk of harm from the third person.”  Melton, at *10. 

The opposite of “misfeasance” is “nonfeasance,” which is when a defendant has not aided someone through “beneficial intervention.”  Melton, at *10.

A person who has failed to act might also be negligent in not aiding someone if there was a “special relationship” with a plaintiff.  Melton, at *11. 

Special relationships are generally common carriers (think trains & airplanes) to their passengers or mental health professionals to their patients.  Melton, at *20. 

As with any negligence analysis, a risk must be foreseeable.  In situations when there is criminal conduct by a third party, courts require an “extraordinarily high degree” of foreseeability for a landowner to be negligent.  Melton, at *11-12. 

Plaintiffs’ Arguments

The Plaintiffs argued that the Defendant’s public and unrestricted MySpace party with music and drinking would create a foreseeable dangerous situation.  Melton, at *13.  The Plaintiffs claimed that the MySpace invitation was “active conduct of a property owner” that supported a finding of tort liability.  Id.

No Duty, No Harm

The Court held that the Defendant owed no legal duty to the Plaintiffs, because there was no special relationship with them or misfeasance. Melton, at *13. 

Defendant Did Not Create the Risk

The Court held that the Defendant did not “stimulate criminal conduct” or that violence was a “necessary component” of the MySpace party.  Melton, at *18. 

The Court explained from prior case-law that, “[t]o impose ordinary negligence liability on [a property owner who] has done nothing more than allow [his home] to be used for [a] party … would expand the concept of duty far beyond any current models.” Melton, at *18. 

Party Goings Are Not in a “Special Relationship”

The Court of Appeals quickly held that there were not facts supporting any special relationship between the Plaintiffs and the Defendant.  Melton, at *20. 

Foreseeability of Attack

There was no evidence offered besides conclusory statements that violence was foreseeable at the party.  Melton, at *21-22. 

The Plaintiffs forcefully argued that “common sense” that violence could have happened from a public party on MySpace was enough to establish a duty from a foreseeable harm.  Melton, at *25-26. 

The Court’s reply to the “common sense” argument should echo through the ages:

Common sense is not the standard for determining duty.

Melton, at *26. 

Party Security: Security Guards & Don’t Invite People You Don’t Know

The Court of Appeals quickly rejected the Plaintiffs’ claim the Defendant should have hired security guards.  The California Supreme Court has held that establishing a duty to hire “security guard” would be a very high burden. This likely would require some showing there were past violent acts.  Melton, at *29. 

The Plaintiffs argued the Defendant could have controlled the party invitees to only his “friends” or “friends of friends” on MySpace.  Melton, at *30. 

The Court of Appeals rejected this argument.  There was no evidence this would even have avoided any violence.  Melton, at *31-32. 

Plaintiffs’ argument in essence would block the Defendant from socially and professionally networking by restricting events to only those who knew him.  Melton, at *32. 

The Court of Appeals expressly rejected this barrier to interacting with others at events he organized as being “socially burdensome.” Id.

Bow Tie Thoughts

We will see more of these cases.  As people continue to use social networking sites, connect with others and announce public events, these and other issues will be litigation again. 

For example, the Iowa Supreme Court discussed complex conspiracy hearsay issues over Facebook invites to a party that ended with underage drinking and a fatal car crash.  See, State v. Tonelli, 2008 WL 2152529 (Iowa, May 23, 2008).

In this case, the party was supposed to be exactly that, a party. 

If there had been other evidence that there could have been violence, such as comments from attendees on the public event page threatening violence, perhaps this could have had a different outcome.  Additionally, if the party invite had photos showing dangerous behavior and drinking, perhaps the Plaintiffs’ “common sense” arguments would have carried more weight.  However, if the Plaintiffs knew there was a risk of injury at the party because of “common sense,” perhaps common sense dictated not attending.   

As a practical matter, I wonder how the MySpace invitation was preserved and presented in court.  It most likely was just a printout. However, screen shots of the MySpace evidence, or perhaps a litigation hold could have been issued to MySpace to preserve the public event.

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.

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.

Inked Based Confessions on MySpace

The Defendant, who was being investigated for Social Security Fraud, challenged his confession to Federal agents.  United States v. Morales, 2009 U.S. Dist. LEXIS 122110 (S.D. Ga. Dec. 17, 2009).  The tip-off that there had been Social Security Fraud?  The Defendant’s MySpace profile.

The Defendant denied any wrongdoing when initially interviewed by Federal agents for Social Security Fraud at his home.  One agent then produced print outs of the Defendant’s Myspace profile, showing the Defendant operating a tattoo parlor from his home. Morales, 2.

The Defendant moved to suppress a statement he signed as “coerced.”  Morales, 6-7. 

The Court found under the totality of the circumstances that there was no coercion in the confession.  The facts showed the investigating agent presented the Defendant photos from his MySpace page that refuted the Defendant’s statement he had not been operating a business.  Morales, 8-9. 

In the words of the Court, “This case comes nowhere near the coercion-based threshold.” Morales, 8.

Bow Tie Thoughts

What is impressive about this case is that Federal agents investigating Social Security Fraud searched a social networking site for evidence.  I believe law enforcement, litigators and Human Resource Departments will have a standard practice of seeking party admissions from social networking sites in all forms of litigation.

Brewing Issues in Social Networking Litigation: How to Freak Out Co-Workers and Get Fired

A barista was fired from Starbucks for “inappropriate conduct and threatening violence to Starbucks and its employees.” Mai-Trang Thi Nguyen v. Starbucks Coffee Corp., 2009 U.S. Dist. LEXIS 113461 (N.D. Cal. Dec. 7, 2009). 

The Plaintiff in turn sued for sexual harassment, retaliation, religious discrimination, violations of the California Occupational Safety and Health Act, and the Fair Employment and Housing Act Section 12940(j)(1). Nguyen, at *1.

Starbucks brought a motion for summary judgment because there were “no material issues of fact sufficient” to support her claims. Nguyen, at *1-2.  Federal District Judge Charles Breyer agreed and granted Starbucks summary judgment. 

Part of the evidence that justified Starbuck’s concern for the safety of their employees was a posting the Plaintiff did on MySpace shortly before being terminated.  The posting stated:

Starbucks is in deep [Redacted] with GOD!! I am now completely disenchanted with humans n I have NO MO Energy left 2 deal w/ their negativity. I’ve worked Tirelessly 2 not cause trouble, BUT I will now have 2 to turn 2 my revenge side (GOD’S REVENGE SIDE) 2 teach da world a lesson of stepping on GOD. I thank GOD 4 pot 2 calm down my frustrations n worries or else I will go beserk n shoot everyone . . . Prepare to See Crazy Trang in public eye soon IN UR TELEVISION n other news vehicles. I don’t know when EXACTLY ’cause only GOD knows of our Exact timing in his PERFECTED-CREATED NETWORK (fate!) BUT all I know is I will fight 2 be heard beyond my death.;) N I will not be happy unless I win because I AM GOD N GOD DON’T LOSE.

            Nguyen, at *5-6.

Brewing Issues in Social Networking Litigation

The “Friend Request” of social networking litigation will only continue to brew in civil litigation and criminal law.  Lawyers, clients and experts face several issues on how to collect, preserve and review this electronically stored information.

In the above fact pattern, the easiest option would have been for the Starbucks employee who saw the MySpace post to simply print the page.  The analysis required for admitting a printed copy into evidence would parallel the requirements for authenticating a printed page from a website.  For more on admissibility and authentication of electronically stored information, please look at the CT Summation Whitepaper e-Admissibility.

A party or investigator can also print the suspect profile as a PDF.  Conversely, Adobe Professional has a webpage capture feature which would also be effective.  There are also numerous screen capture tools that can be used to preserve relevant social networking evidence.

Attorneys should be vigilant in understanding how to collect and preserve social networking ESI.  This might require the client immediately preserving the evidence, due to the highly transitory nature of actions on MySpace or Facebook.  Other situations may require a third-party who can testify to the collection methodology deployed to collect a “Tweet” or social networking profile.

Turning a Tag into a Court-Martial

A soldier was convicted for being absent without leave (AWOL) after finding out his Army unit’s deployment was extended to a year in Iraq. United States v. Scheuerman, 2009 CAAF LEXIS 812, 7-8 (C.A.A.F. 2009).  The Defendant claimed he suffered from post-traumatic stress disorder, which is why he went AWOL. 

Army HatPart of the evidence against the Defendant was testimony from platoon sergeant on the Defendant’s negative attitude on the Army. Rules for Courts-Martial 1001(B) allows for presenting evidence in aggravation of “any aggravating circumstances directly relating to or resulting from the offense of which the accused has been found guilty.” Scheuerman, 4-5.

The Court included one comment in a footnote from the Defendant’s MySpace profile, posted on the day he was supposed to be on a plane back to Kuwait.  The redacted message is posted below: 

“UNCLE [Redacted] [Redacted] [Redacted] SAM JUST EXTENDED MY UNIT IN IRAQ. . . . SO INSTEAD OF GOIN [SIC] BACK TODAY AND HAVIN [SIC] LIKE 7 OR 8 MONTHS LEFT, I HAVE A [Redacted] YEAR!!!!!!!!!!!!!!!!!!” Scheuerman, 9, fn 4.

The Defendant’s conviction was upheld.  The Court found that his many negative comments were properly admitted, because the “remarks demonstrate a lack of remorse for the offenses of which he was convicted and, as such, are relevant in fashioning an appropriate sentence.” Scheuerman, 9.

Bow Tie Thoughts

Web 2.0 actions can have real life consequences.  People should be very careful in venting about frustrations and not crossing into legal action. 

In the civilian world, speaking negatively about your company or coworkers online might result in getting fired, HR violations or a defamation lawsuit.  In the military, the consequences can be a bad conduct discharge. 

Status messages, tags and comments are appearing in litigation.  People need to be aware their actions can have consequences in cyber-space.

MySpace and MyDefamation: Tagging Your Way to a Libel Suit

A lot can happen in 140 characters.  Someone can tag their way right into a lawsuit with a Wall to Wall Message, a public note or a Tweet.  This is one of those cases.

Procedural History

What's the Truth Got To Do with It?In a defamation case, a Philadelphia attorney (Plaintiff Corcoran) with a boutique copyright practice sued the Executor of the Estate (Defendant McCabe) of one of the Plaintiff’s former clients. Corcoran v. McCabe, 2009 Phila. Ct. Com. Pl. LEXIS 74 (Pa. C.P. 2009).

The Defendant defaulted on the Plaintiff’s complaint.  The Defendant appealed the assessment of $50,000 compensatory damages and $25,000 punitive damages for his defamatory comments. Corcoran, 1.

What Happened?  The Case Facts

The Plaintiff attorney was starting a firm that specialized in copyright infringement. Corcoran, 1

In one of the Plaintiff’s cases, he represented a group of local musicians in a suit against Microsoft.  Corcoran, 2.

One of the musicians was the Defendant’s brother, who died in 2000.  The Defendant acted as his brother’s Executor.  Corcoran, 2.

After the Microsoft case settled, the Plaintiff put the settlement funds in his IOLTA account for payment to his clients.  Corcoran, 2.

The Plaintiff issued an “Acknowledge Distribution” that stated all the costs in the copyright suit.  This statement was given to the Defendant.  Corcoran, 2.

The settlement funds could not be distributed to the Defendant Executor until the Estate processed and the state issued an inheritance tax clearance.  Corcoran, 2. 

The Plaintiff attorney not only explained these issues to the Defendant, he volunteered to help pro bono.  The Plaintiff processed the required papers and was waiting for the tax clearance.  Corcoran, 2-3.

No Good Deed…

SinisterThe Defendant posted the following statement on a MySpace profile on October 22, 2007, with full knowledge of the Plaintiff’s actions on his brother’s behalf:

Bored? Call Connor Corcoran and ask him why Sean McCabe’s share of the settlement went in his pocket. Neither Sean’s family or his estate has received any money. It has been well over a year since suit was settled and the rest of the members received their share. Corcoran, 3.

The posting was reposted on an internet entertainment blog along with the attorney’s phone number.  Corcoran, 3.

The tax approval was made on November 29, 2007.  Immediately thereafter, the Plaintiff sent the Defendant his brother’s share of the settlement check.  Corcoran, 3.

The Plaintiff’s Damages

The Plaintiff had not had any new copyright infringement clients since the Defendant’s October 22, 2007 posting about him “pocketing” his client’s settlement money. Corcoran, 3.

The Court’s Findings

The Court wasted no time saying the Defendant’s actions were defamatory.  The Plaintiff Attorney represented both the Defendant’s brother and his Estate properly and acted correctly.  Corcoran, 4. The statement was made with no legal right.

The Court quashed the Defendant’s appeal on the procedural grounds because “post trial relief must be filed within ten days of the decision in a case of a trial without a jury.” Corcoran, 4-5.

Social Networking Sites & Defamation

People using social networking sites often express statements that they normally would not state in person.  People often “flame” others for political views, status messages and reasons too numerous to name.   This will result in litigation originating from 140 characters of “Status message” litigation or “Tag Defamation” only increasing with time.