Bribing Witnesses with Text Messages, Cell Phones and Fake Email Accounts

Sometimes there are fact patterns that surprise you how far we have come with technology and the foolishness of people. 

In People v. McInnis, the Defendant was convicted of attempted witness bribery.  The Defendant attempted to keep witnesses from testifying against the Defendant’s nephew, in the nephew’s trial for robbery and kidnapping.  People v. McInnis, 2009 Cal. App. Unpub. LEXIS 9046 (California Unpublished Opinions 2009).

The basis of the Defendant’s appeal was based on alleged “outrageous governmental conduct” by a police investigating officer. 

The Court upheld the conviction. 

The Bribe

One of the victims in the robbery and kidnapping case received the following letter with a cell phone number to call:

“The purpose of this letter and its contents is to compensate you for your initial loss that occurred as a result of the robbery. I believe you have at least 1 Thousand reasons to be compensated for your pain and suffering. However, I feel that because you are the true victim in this crime, you deserve much more compensation for your pain and suffering. While it’s obvious that the defendants don’t have the ability to adequately compensate you, I do have the ability to do so on their behalf.”

“Obviously this correspondence and agreement has to be kept confidential and not disclosed or shared with the District Attorney or Police. . . . Remember the District Attorney works for the people (you & me) and you have every right to tell the DA you don’t want to testify and he can’t force or threaten you to.” McInnis, at *2-3.

The letter ended with “there are at least 25 thousand reasons why you would like to immediately settle the case in a civil manner instead of being a witness in a criminal court.” McInnis, at *3.

The victim turned over the letter to the authorities who launched an investigation.

Other letters were sent to the two victims offering $50,000 to settle the criminal suit against the Defendant’s nephew.  McInnis, at *5 (which should send ethics lawyers into orbit).

The investigating police officer left multiple phone messages with the number on the letter. A text message was sent to the investigating officer saying, “Leave me a message with your questions. I am going to send the money, I swear.”  McInnis, at *6.

Tracking Down a Cell Phone

The police investigation in tracking down the Defendant’s cell phone was a case study of how far we have come with technology.

The police officer was able to trace the exact sale date of the cell phone, the cell phone carrier (Virgin Mobile), the fake purchase name (Joe Gift), the store it was purchased from (Radio Shack), and that it was activated at a FedEx Kinko’s near the store where the Defendant purchased the phone.  McInnis, at *6-7.

Virgin Mobile indicated the specific time, down to the minute, the cell phone number had been activated, including the fake name used for the Yahoo! email address.  McInnis, at *7.

The police officer used “Yahoo! Emergency Disclosure Request Form” to determine the identity of the Yahoo! subscriber. McInnis, at *7.

The investigation showed the IP address where the account was activated was a FedEx Kinko’s in Los Gatos, California.  McInnis, at *7.  From there, the police were able to review the store security cameras and identify the Defendant later in Court. McInnis, at *7.

“Outrageous Conduct”

The “outrageous conduct” was the police officer overstating the threat against the victims on  “Yahoo! Emergency Disclosure Request Form.”  While the officer exaggerated the danger, the Court found this was not shocking conduct that rose to the level of “outrageous conduct.”  McInnis, at *21-21. 

What is Interesting about This Case…

Tracking down a suspect by IP addresses, fake email names and security video sounds like something out of “24.” These electronic finger prints are all markers of electronically stored information.  Just as civil litigation is dealing with “forms of production,” criminal law have also adopted to the Digital Age.

Don’t Text & Drive…but Can the Police Search Your Cell Phone at the Traffic Stop?

“The plaintiffs have not explained why the City of Chicago had no authority to enact legislation designed to protect the safety of its roads in this way, nor can we think of any restriction on its powers under either federal or state law that is so obvious we would need to take note of it here. The district court correctly dismissed the plaintiffs’ Fourth Amendment claim.”

Schor v. City of Chicago, 576 F.3d 775, 779 (7th Cir. 2009)

Hands Free Means Hands Free in Chicago

In case anyone was wondering, those Hands Free laws are Constitutional, at least in Illinois. 

In Chicago, three drivers ticketed for driving while on the phone challenged the Constitutionality of the “Hands Free” law. Schor, 779.

The law states no person is to drive a vehicle while using a cell phone, unless they have a hands free device (or three other exceptions). 

The Plaintiffs claimed the police violated the 4th Amendment  when the Plaintiffs were pulled over for talking on the phone.

It is well established law that the Fourth Amendment is not violated if a police officer has probable cause for a traffic stop.  Schor, 779.

In this case, the police officers saw the Plaintiffs violating the Hands Free law by using their cell phones without a hands free device.  As such, the violation of the valid traffic law provided probable cause for the officers to stop the Plaintiffs.  Scho, 779.

Cell Phone Search During a Traffic Stop?

If someone is stopped for breaking a Hands Free law, an interesting question is whether the police can do a warrantless search of the cell phone.

As a preliminary matter, a person has a reasonable expectation of privacy over their cell phone. United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007).

In United States v. Zavala, the police officer checked a driver’s cell phone during a traffic stop. 

The Government argued that a “phone check” was the same as asking for someone’s driver’s license and proof of insurance.  United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008).

The Court thought otherwise, stating that a cell phone is totally different then a driver’s license and proof of insurance.  First, a cell phone is not issued by the state, like a driver’s license, nor required by law, such as proof of insurance in most states.  Zavala, 577.  The Court noted that cell phones are more than just calling devices, containing private information, such as text messages and address books.

The Court went on to state that going through a cell phone at a traffic stop was like “general rummaging in order to discover incriminating evidence.” Zavala, 577. 

Conversely, the Finley Court held that a warrantless search of a cell phone was proper after the arrest of a suspect, thus there was no Fourth Amendment violation in retrieving the call records and text messages from the suspect’s cell phone. Finley, 259-260.

What will be the search and seizure law if someone is stopped for breaking a Hands Free law? A court in one of the 18 (and growing) states with Hands Free laws will answer this question.

Bow Tie Thoughts

It will be an interesting question if a police officer making a traffic stop can ask for an individual’s phone to verify the time of the last call and if that search would violate the Fourth Amendment.

I personally think it would violate the Fourth Amendment.  I believe courts would follow the logic of Zavala, because of the personal information contained on Smartphones, and prohibit the search of a cell phone on a traffic stop for violating a Hands Free law.  The practice also just smacks of “rummaging” in someone’s phone “in order to discover incriminating evidence.” However, this is an unsettled issue of law.

Attorney Client Text Messages or Texting & Depositions Don’t Mix

A child was injured at an Old Navy store (a subsidiary of the Gap) on a clothing rack, and naturally, a lawsuit followed in Federal Court based on Diversity Jurisdiction. Wei Ngai v. Old Navy, 2009 U.S. Dist. LEXIS 67117 (D.N.J. July 31, 2009).

The Plaintiffs deposed the Gap’s General Liability Claims Manager via video deposition on the chain of custody of the clothing rack. Ngai, 2.

The witness was in Sacramento, California, Defense attorneys in Fort Lee, New Jersey and Pro Hac Vice in Southfield, Michigan.  Ngai, 2.

The deponent and their Pro Hac Vice attorney were only visible from the chest up and their hands were not visible.  Ngai, 2.

However, the Pro Hac Vice attorney and the deponent had very busy hands texting each other.  Before the deposition, the two sent 11 text messages between themselves.  Ngai, 4.

During the one hour and twelve minute deposition, the attorney and client exchanged 5 more text messages.  Ngai, 3.  Below is the timing of the messages: 

FROM	TO	TIME
PHV counsel	Deponent	3:05:26 PM
PHV counsel	Deponent	3:24:18 PM
PHV counsel	Deponent	3:26:30 PM
Deponent	PHV counsel	3:28:38 PM
Deponent	PHV counsel	3:28:54 PM

Ngai, 4.

Then there was perhaps one of the worst sending errors text message history: The Pro Hac Vice attorney sent a text to the PLAINTIFF attorney saying, “[you] [are] doing fine.”  Ngai, 2. 

The Plaintiff’s attorney suspected shenanigans, requested the defending attorney preserve his text messages from the deposition.  Ngai, 2.

As one would expect, the Pro Hac Vice attorney claimed the text messages were all sent during a break.  However, the Court stated the record showed that only one break was taken, at an unknown time.  Ngai, 5.  Moreover, the NJ attorneys reported that the deponent was visible the entire deposition, minus the deponent and NJ attorneys going off camera to phone the Pro Hac Vice attorney.  Ngai, 5.

The Fallout Begins…

Pro Hac Vice attorney informed the court by letter of the text message incident and claimed the text messages were protected by the attorney-client privilege.  Ngai, 6.  Deciding to fall on his own sword, the Pro Hac Vice attorney attempted to withdraw from representing the Defendant.  Ngai, 6.

The Plaintiff opposed the Pro Hac Vice attorney’s withdrawal, claiming the withdrawal would delay the trial. Ngai, 6.  The Plaintiff requested all non-attorney-client privileged documents that supported the Pro Hac Vice attorney’s withdrawal.  Ngai, 6. 

The Court granted the withdrawal and ordered the Defendant to either produce the text message attachment provided to the Court or explain why the Attorney-Client privilege should not be pierced.  Ngai, 6-7.

Privileged Text Messages?

 The Defendant argued against producing the transcript of the text messages because:

(1) The communications are protected by the attorney-client privilege and work product rule;

(2) The crime fraud exception does not apply because the communications were not in furtherance of a crime;

(3) The “at issue” exception does not apply because the communications do not refer to the client’s state of mind or any other relevant issue in the case;

(4) There is no Rule of Professional Responsibility that compels this discovery; (5) the communications have no effect on the case; and

(6) The court rules provide that inadvertent disclosures must be returned to the sender. Ngai, 7.

The Plaintiff in turned argued that the text messages were not protected by the Attorney-Client Privilege.  Ngai, 7-8.

New Jersey Attorney-Client Privilege Standards

The attorney-client privilege statute states “communications between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it . . . .” Ngai, 8-9, citing N.J.S.A. 2A:84A-20.

One key test for sending an Attorney-Client communication is between the attorney and their client for legal advice with the expectation that its content remain confidential.” Ngai, 9-10, citations omitted.

The disclosure of these communications “to or in the presence of third-parties destroys the confidential nature of the communication and therefore such communications are not privileged.” Ngai, 10, referencing Aysseh v. Lawn, 186 N.J. Super. 218, 222, 452 A.2d 213 (Ch. Div. 1982).

Just When Were the Communications Made?

The Court held the text messages made BEFORE the deposition were privileged, which the possible exception of the last message, which the Court did not explain in depth.  Ngai, 11-12.

The Court explained the pre-deposition text messages related to the upcoming deposition, including “words of encouragement,” that attorney and client would have before a legal proceeding.  The Court characterized these text messages as furthering the client’s legal interest and were thusly protected.  Ngai, 11-12.

Texting During the Deposition or “No Note Passing”

The text messages sent during the deposition were not privileged.  Ngai, 12.

Federal Rule of Civil Procedure Rule 30(c) states that “depositions are to be conducted in the same manner as trial examination.”  Ngai, 12.

Rule 30 does not allow a lawyer and witness to have a discussion during trial or deposition testimony because, “once a deposition begins, the right to counsel is somewhat tempered by the underlying goal of our discovery rules: getting to the truth.”  Ngai, 13. 

The Court stated, “The goal of obtaining the facts of a case is defeated when the lawyer and not the witness is answering questions or influencing the answers to them.”  Ngai, 13. 

During a deposition if there is an “off-the record” discussion other than discussing the assertion of a privilege, the exchange is not privileged and “deposing attorney is [] entitled to inquire about the content thereof.”  Ngai, 13. 

The Court stated the Pro Hac Vice attorney violated Federal Rule of Civil Procedure Rule 30 by texting during the deposition.  Ngai, 14.  The Court equated the conduct with passing notes to the client that included instructions “intended to influence the fact finding goal of the deposition process.” Ngai, 15.

The Court found no “it was on a break” defense for the text messages.  Ngai, 15-16.  A deposing attorney may question a deponent to determine if any witness coaching occurred.  Ngai, 16.  Additionally, Rule 30 only allows discussions pertaining to privileged issues.  Ngai, 16.  Finally, there was no evidence the text messages were actually sent during a break.  Ngai, 16.

Bow Tie Thoughts

If it had not been for the Pro Hac Vice attorney sending a text to the Plaintiff’s attorney, no one would have known of this impermissible (and ethically questionable for arguably witness coaching) conduct.  It will be a sad day for our system if deposing attorneys need to include a “no texting” provision to deposition admonitions.

Admissibility of Text Messages: Challenging Authenticity

A criminal defendant appealing his conviction on ineffective counsel and insufficient evidence to support his convictions challenged text message evidence.  State v. Loye, 2009 Minn. App. Unpub. LEXIS 660, 1 (Minn. Ct. App. 2009).

The Defendant’s key argument at trial was challenging his victim’s credibility as the only witness to his attack upon her.  Loye, 2. Judging by his conviction, this obviously did not work out well for him. 

The Defendant argued the court erred in excluding text messages the victim sent after the assault.  The Defendant claimed these messages were relevant and were not barred as hearsay.  Loye, 3.    

The Court found no error.  Loye, 3.

Trial Procedure & Rules of Evidence

The trial court did allow some text message evidence that the victim “loved” the Defendant.  Loye, 3. 

Instead of offering text messages acquired from a cell phone with a tool such as Paraben, a collection expert who could explain collection methodology or a subpoena to a cell phone service provider to produce text messages, the Defense counsel offered a handwritten transcript of the text messages.  Loye, 4.

There was no one offered to authenticate this handwritten text message transcript.  The Prosecution objected to introducing the trial exhibit.  Loye, 3. 

The Defense successfully used the handwritten transcript to refresh the victim’s recollection and read into the record.  Loye, 4.  The handwritten notes were only admitted as a court exhibit and never went to the jury.

Flashbacks to Trial Advocacy 

Trial Advocacy and Evidence professors teach law students that “authenticity is a precondition to the admissibility of evidence.” Loye, 4.  

The Court found that the Defendants failed to lay any foundation with the handwritten text message transcript, thus the trial court properly excluded the evidence.  Loye, 4.  This might have been different if the Defendant had offered either the cell phone or a transcript from the cell phone service provider.

 

“If I Can’t Have It, No One Can”

The Defense tried arguing in the alternative that no text message evidence should have been admitted.  Loye, 4-5.  The Defense claimed that since the handwritten transcript was read to the jury to refresh the victim’s recollection, “The court erred by letting defense counsel cross-examine the alleged victim with the evidence without an accurate record that could be entered into evidence.”  Loye, 5.

Claiming prejudice because a jury has to rely on their own memories instead of text messages did not fly with the Court.  The Court noted jurors often rely on testimony and there was no explaination how this was prejudicial.  Loye, 5.

Admissibility Battles Can Be Avoided

Defense counsel could have avoided their inability to authenticate text messages with better case planning.  A subpoena could have been sent to the cell phone service provider on the victim’s text messages over the relevant time period.  A collection examiner could have defensibly imaged the victim’s (or the Defendant’s) text messages.  Photos could have been taken of the phone itself with the text messages.  However, none of those things happened.

Measure for Measure: Sexting, District Attorneys and Restraining Orders

Parenting has never been easy.  Since cell phones starting having cameras, parents have had to talk to their teenage children about the dangers of “sexting.” For those who have never heard of this practice, it is taking photos of a sexual nature and sending them via text message.  There is no shortage of cases with youth under 18 being charged as sex offenders for this practice. 

The proper legal deterrent for “sexting” is the subject of debate.  Some people think charging 15 year olds as felony sex offenders is the appropriate deterrent, with serious ramifications on college selection, job applications and just moving for at least a decade.  Some take a “do nothing” approach.  Others are looking for a middle ground.  It is only a matter of time before state legislatures take this issue up to determine the appropriate legal deterrent for “sexting.” 

The case Miiller v. Skumanick, 2009 U.S. Dist. LEXIS 27275 (M.D. Pa. Mar. 30, 2009) is the story of a temporary restraining order being issued against a District Attorney from charging multiple teenage girls for felony child pornography from texting.  A preliminary injunction hearing is schedule for June 2, 2009.

Thoughts on being a District Attorney

To be fair to District Attorneys, I think the DA in this case is the exception and not the norm.   Being a DA has to be hard.  The job can be demanding and stressful in protecting communities from crime.  I remember a DA joking to us in law school that new all DA’s get a concealed weapons permit and a bullet proof vest. 

Many states have also adopted the Model Rules of Professional Conduct Rule 3.8 for prosecutors, which states in relevant part:

Rule 3.8 Special Responsibilities Of A Prosecutor

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…

Factual Overview: Threat of Prosecution from the District Attorney

The District Attorney in Miiller sent letters to the parents of 20-some students who had been identified in cell phone photos.  Three of the students (later Plaintiffs) had photos of themselves in bras and the other in a swim suit. 

The DA’s letter promised child pornography charges would be dropped against the youth if they completed a 6 to 9 month “re-education” program (which was reduced to 5 weeks) and drug testing.  Those who did not attend the “re-education” program and drug testing would be charged as sex offenders.  Miiller, 4. 

The District Attorney held a meeting at the Wyoming County Courthouse with everyone who received the letter.  This meeting consisted of a threat to prosecute the teenage girls in the photos unless they submitted to 1) probation, 2) paid a $100 program fee and 3) completed the “re-education” program. 

The “re-education” program was to instruct the girls on their inappropriate behavior and to “gain an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and “identify non-traditional societal and job roles.” They were also required to write a paper on their actions and how they were wrong.  Miiller, 5-6. 

“These are the rules. If you don’t like them, too bad”

Parents understandably questioned the District Attorney on his methods.  One of the girls at issue had photos of herself in a bathing suit.  When questioned by the father how swim suit photos were child pornography, the DA explained the youth had posed “provocatively.”  When questioned on who decided what was “provocative” the DA told the father, “[T]hese are the rules. If you don’t like them, too bad.”  Miiller, 5.  The District Attorney also told the questioning parents he could charge their children with child pornography during the meeting, as obvious leverage for the parents and youth to consent to the “re-education” program.  Id.

When the parents of the other Plaintiff challenged the District Attorney’s child pornography definition, the DA claimed the youth had no right to a jury trial in Juvenile Court, even with felony child pornography charges. 

The Civil Lawsuit (Or, this is the US Constitution, if you don’t like it, too bad)

The parents of the three Plaintiffs did not give in to the District Attorney’s threatened prosecution of their children.  The Plaintiffs brought a 1983 action base on 1) retaliation in violation of plaintiffs’ First Amendment right to free expression, because the photographs did not violate any obscenity law; 2) retaliation in violation of plaintiffs’ First Amendment right to be free from compelled expression, specifically having to write a paper about their actions; 3) retaliation against the parents for exercising their Fourteenth Amendment substantive due process right as parents to direct their children’s upbringing, as evidenced by the “re-education” program material.  Miiller, 10-11. 

The Temporary Restraining Order

A temporary restraining order is an “extraordinary remedy” that requires a Court to evaluate: 

(1) Whether the moving party has shown a reasonable probability of success on the merits;

(2) Whether the moving party will be irreparably injured by denial of the relief;

(3) Whether granting preliminary relief will result in even greater harm to the nonmoving party; and

(4) Whether granting the preliminary relief will be in the public interest. Miller, 13, citing Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001).

The Plaintiffs met all of the requirements for a retraining order against the District Attorney.  Moreover, the Court outlined the state law definition of “prohibited sexual act,” which did not include “provocative” poses.  Miiller, 25-26.  One can wonder if the District Attorney over-stepped his ethical duties as a prosecutor, if he was threatening prosecution not supported by probable cause, let alone advising the accused youth of their right to counsel. 

In reviewing the sub-requirement that the Plaintiffs’ Constitutionally protected activity caused the retaliation, the Court noted that the District Attorney’s threat to charge the youth with felony child pornography was “not a genuine attempt to enforce the law, but instead an attempt to force the minor plaintiffs to participate in the education program.” Additionally, the continued threat of prosecution for not participating in the “re-education program” indicated that the charges were “retaliation for their refusal to engage in compelled speech.”  Miller, 24-25.

What is the Appropriate Deterrent?

The actions of the District Attorney in Miiller were extreme.  It will be interesting to see if the preliminary injunction is granted on the June 2, 2009 hearing.  Judging by the tone of the Court Order, I would think so. 

Cases such as Miiller may prompt state legislatures to determine the appropriate punishment for a teenager sending or receiving sexually suggestive photos from other teenagers.  Some states may find the current child pornography laws are sufficient, because the threat of having to register as a sex offender is a high deterrent.  Other states may try finding a lessor punishment. 

In the meantime, parents should have very frank discussions with their children about responsibility and consequences.

Local Political Drama: Text Messages, Employee Hard Drives and Wrongful Termination

Williams v. City of Franklin, 2009 U.S. Dist. LEXIS 33200 (M.D. Tenn. Apr. 16, 2009) is an ESI free for all.  The case is a local political drama that sounds like a Hollywood production.  There are threatening text messages from an alderman and then rummaging through an employee’s laptops for pornographic images.  There is Internet usage history and one key email message. 

 

Short Factual Overview

The basic facts and evidence included the following:

            An Alderman was subject to an ouster suit;

The Alderman anonymously sent threatening text messages to the Plaintiff;

The Alderman, after resigning but before the resignation is effective, sent an email alleging wrongdoing by the Plaintiff on his work computer who had an “insignificant role” in the ouster;

The Plaintiff was subject to disciplinary hearings over usage of two city laptops, resulting in an employment suit against the City.  Williams, 1-5.

The Anonymous Text Messages

These “threat messages” included the following:

“time almost up. hear u got money now. I b in touch tues or wed 4 u 2 give me mine. who alderman I get 2 fire u next?;”

“I turn u into today u get fired;”

“u been turned in. . . . u aint gone find work noplace then,” and

“u b fired.” Williams, 5.

ESI Litigation

The Plaintiff sued the City claiming he was terminated in retaliation of the ouster suit and was deprived of his due process rights.  Issues such as form of production or defensible collection are not discussed in any detail. The opinion grants in part and denies in part the Defendant’s summary judgment motion.  However, that is not the key reason the case is noteworthy:  The volume and forms of ESI that form the subject of the lawsuit is a strong indication of what electronically stored information we can see in litigation.  Lawyers handling civil and criminal cases need to be aware that this ESI can be the basis of a case. 

The “connectivity” of the average person can include a work computer, a personal laptop, cell phones (personal and/or business), social networking activity and “classic” ESI such as email.  What ESI is relevant to a lawsuit will entail analyzing the facts of a case, consulting with the client and possibly an expert.  

For example, Williams has no discussion of how text messages were collected.  This is not a lawsuit with data to revival Enron or Verizon litigation, but dozens of text messages, email and arguably imaging two hard drives. 

 

Here are possible ways text messages can be collected in a “small” lawsuit:

            Option 1: Computer expert uses product like Paraben for collecting text messages.

            Option 2: Request to cell phone provider for text message history.

            Option 3: Text messages possibly backed up on computer after being synced with phone or PDA.

            Option 4: Photos taken of phone with text messages showing (LOW tech, but was done in Dickens v. State, 175 Md.App. 231 (Md.App.,2007).)

This is not an exhaustive list.  However, it does illustrate considerations for collecting text messages. 

Collecting electronic evidence such as text messages, Internet usage history, harvesting emails and imaging a hard drive are all possible issues to consider in litigation.  The more technology we use in daily life only increases the sources of ESI that can form a lawsuit.  The wild ride of Williams v. City of Franklin is a prime exhibit of this phenomenon.

It Takes Two to Tango…and Form a Conspiracy over Text Messages

A “conspiracy” is an “agreement by two or more persons to commit an unlawful act.”  Black’s Law Dictionary, Pocket Edition, 1996. 

Like a tango dance, a conspiracy takes a partner.  However, the number of people in a conspiracy can quickly make it look like a square dance, with everyone needing to follow the dance calls to complete the conspiracy. 

 Under Federal Rule of Evidence 801(d)(2)(E), statements “by co-conspirators are properly admissible as non-hearsay if (1) a conspiracy existed; (2) the declarant and the defendant were both members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy.” United States v. Peck, 2009 U.S. Dist. LEXIS 17634 (D. Utah Mar. 6, 2009). 

 In U.S. v. Peck, 2009 U.S. Dist. LEXIS 17634 (D. Utah Mar. 6, 2009) the defendants were in a conspiracy to 1) steal and sell cars and 2) drug running. 

 One of the defendants sent a co-defendant text messages with Vehicle Identification Numbers (VIN).  These text messages were in furtherance of the auto theft conspiracy.  However, there was no evidence the sender who provided the VINs was part of the drug trafficking conspiracy.  As such, the sender of the text messages was not part of the entire conspiracy. 

 The defendant who sent the text messages picked a dance partner, put on his dancing shoes and made it to the dance floor.  However, he did not make the song request for the drug trafficking arm of the conspiracy.  If he had, he would have been a member of both arms of the criminal conspiracy. 

 Both civil and criminal cases will see text messages, instant messages or tags on social networking sites come into play into lawsuits.  Whether they are non-hearsay, present sense impressions or party admissions will be the subject many court opinions to come.

Production of Text Messages Protocol

The sensitivity courts are showing to text messages and public employees’ reasonable expectation of privacy has been very impressive.  This sensitivity is evident in cases such as Quon v. Arch Wireless Operating Co., Inc., which found that a police officer had a reasonable expectation of privacy in his messages, due to the police department’s informal usage policy on text messages.  Quon v. Arch Wireless Operating Co., Inc., 2009 U.S. App. LEXIS 2259 (9th Cir. Cal., 2009).

When a public entity is in litigation, how should those messages be produced and review?  How do you protect public employees with a reasonable expectation of privacy in their text messages?

Flagg v. City of Detroit, 2008 U.S. Dist. LEXIS 67943 (  E.D. Mich., Sept. 5, 2008 ) is helpful in seeing how one court addressed the situation. 

In Flagg, the text messages at issue were sent or received by city officials on April 30, 2003, from the hours of 1:30 a.m. to 5:30 a.m.  This focused date and time period appears narrowly tailored with reasonable particularity as required by traditional discovery rules. 

 The Court issued the following protocol in a discovery order:

1. Plaintiff was to serve a Rule 34 request for the text messages as narrowed to April 30, 2003 and for the 4 hour time period.
2. The City of Detroit was to forward the request to the text message service provider with the City’s authorization to release the text messages to the court for in camera review. 
3. The service provider was to send three copies of the text messages on CD to the District Court for two magistrate judges to review in camera. 

This sort of protocol sounds reasonable to protect privacy expectations. More importantly, the narrowly tailored request should keep the text message review from spinning out of control with data.

 If the facts were slightly different, it might be necessary for a computer collection expert to collect text messages or photos off a cell phone, BlackBerry or iPhone.  In such situations, a collect expert can use a solution from Paraben Forensic Tools to harvest data off of mobile devices. 

Courts will continue to consider issues of privacy, text messages and how to produce them when public employees are concerned.  While cases like Quon v. Arch Wireless Operating Co., Inc., had a police department with a weak text message policies, it will be interesting to see how a court handles a company with a strict text message policy.

Witness Cross Examination on Social Networking Evidence

The following Cross Examination is from the Ivize Mock Trial in Palo Alto on October 21, 2008.

The fictional case was Main Street Auto v. At Home Accounting.  Main Street Auto used At Home Accounting as an online accounting service.  At Home Accounting was hacked, resulting in the loss of plaintiffs’ financial data, resulting in identity theft and monetary damages. Main Street Auto sues for breach of contract, breach of fiduciary duty and negligence.

“Dale Patton” was a defendant who blogged about problems with At Home Accounting’s security and his personal practices at work. The key exhibits included text messages, a Facebook profile and a blog.

The masterful cross examination was conducted by Charles Smith, Esq., of Hartnett, Smith & Associates.

Text Messages and Privacy

Can you have a reasonable expectation of privacy in text messages? This video clip from the CT Summation & Ivize webinar addressed this issue.