Family Law & Social Media ESI

A New Jersey State Court determined the imputed income of a defendant in a child custody case to be $100,000 after reviewing photos from social media submitted by the Plaintiff. Fitzgerald v. Duff, 2013 N.J. Super. Unpub. LEXIS 1376 (App.Div. June 7, 2013). The Court of Appeals reversed the denial of a reconsideration motion.


The Defendant originally stated his income was only $21,000 according to his 2011 tax return. The Plaintiff (the child’s grandmother) offered social media photos of Defendant’s speed boat and a 2011 Chevrolet Camaro. Other social media photos included the Defendant’s “elaborate, tropical wedding, diamond engagement and wedding bands and him throwing $100 bills.” The Plaintiff also offered social media comments evidencing his successful tattoo business. Fitzgerald, at *4.

The Trial Court believed the Defendant made more many then he originally claimed. The Trial Court stated:

[B]ased on everything before me, I believe an imputation of income to the defendant is appropriate. He has a business with two locations. It’s . . . a large cash business and the [c]ourt believes that the records aren’t truly reflective of the income. The problem is that the [c]ourt has nothing other than what was stated last time, which is that there was evidence based on an internet page on MySpace that defendant makes in excess of $250,000 from the business of which he’s the sole owner.

I have the web page, I have photographs of his boat . . . . And certainly the boat, in and of itself, indicates a lifestyle beyond $15,000 per year. I think it’s appropriate . . . without more information, to impute income of at least [$]100,000 per year. . .

The Defendant challenged the finding, offering tax returns and other evidence, such as the age of the boat and that the wedding was paid for by family. The Trial Court rejected this evidence and maintained its original finding.

The Court of Appeals reversed and remanded back to the Trial Court. While the Court of Appeals did find there were factual issues on the Defendant’s income that had to be resolved that involved credibility, the Trial Court did not conduct the “fundamental fact finding” required under state law Rule 1:7-4. This rule requires that a “trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.” Fitzgerald, at *11, citing Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).

Bow Tie Thoughts

A good friend recently asked me what percentage of lawsuits in the United States involve electronically stored information. I think at this point it is easier to identify the cases without some form of ESI.

The above was a child support case where social media photos challenged the amount of income earned by the Defendant. I believe every state court judge hearing cases in Family Court and the TRO calendar see ESI on a daily basis in the form of social media posts, photos and text messages.

Consider the following hypothetical:

Auto accident where liability and damages are disputed.

Pam Plaintiff and Danni Defendant both arrived at the 4 way stop sign at the intersection of Cardozo & Palsgraf at the same time.

Pam’s Smart car was to the right of Danni’s Escalade. 

Both parties claim the other signaled for the opposite driver to enter the intersection first. Both entered the intersection and collided. 

Danni’s Escalade had no visible damage.

Pam’s Smart car was a total wreck. 

Immediately after the accident, Pam took a photo of her car and posted the social media message: “Whoops, my bad.”

Danni Defendant had a “black box” installed by insurance company to encourage good driving habits on her Escalade. Danni has never received a discount on insurance rates for good driving.

This hypothetical personal injury case would have multiple electronically stored information that could be produced in discovery. How many attorneys would actually try to get the data from the “insurance black box”? Would the data be on the device in the car or available from the insurance carrier? How about the smartphone photo, that likely has GPS data? Or the Plaintiff’s party admission on social media?

Not every case will involve Terabytes of data, but it is a good bet there will be some form of ESI to consider, from a text message to a social media post. Attorneys will serve their clients well by considering the different types of electronic evidence that could be relevant in their lawsuits.


Still No Rummaging Through Social Media in Discovery

Dislike-StampCourts will not ReTweet or “Like” discovery requests for social media that are simply fishing expeditions.

In Salvato v. Miley, the Plaintiff requested the following discovery:

Interrogatory 12

Please identify whether you had any social media accounts and/or profiles including, but not limited to, Facebook, Twitter, MySpace, you have had at any time from July 5, 2012-February 1, 2013. For each account, please provide the name and/or username associated with the profile and/or social media account, the type of social media account (e.g. — Facebook, Twitter, etc.), the email address associated with the social media account, the dates you’ve maintained the account, and/or whether the account is still active.

Request No. 3

Please produce a copy of any and all electronic communication either sent or received by you through social networking sites, including, but not limited to, Facebook, Twitter, and/or MySpace, between July 5, 2012 — February 1, 2013, that relate in any way to the incident that is described in the Second Amended Complaint. Please exclude any electronic communications that were sent and/or received exclusively between yourself and your attorney.

Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013)

The Court held the discovery requests were not reasonably calculated to lead to the discovery of admissible evidence. Salvato, at *6-7. The Court explained:

Here, Plaintiff simply contends that the requests are relevant because, “Plaintiff is seeking information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.” (Doc. 27 at 7). The mere hope that Brown’s private text-messages, e-mails, and electronic communication might include an admission against interest, without more, is not a sufficient reason to require Brown to provide Plaintiff open access to his private communications with third parties. Indeed, Plaintiff has “essentially sought permission to conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence.” Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D.Mich. Jan. 18, 2012)(quoting McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 1524, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010)). A party “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Id.

Salvato, at *6-7.

Bow Tie Thoughts

Requests for social media, text messages and other ESI must be narrowly tailored and not a rummaging expedition at a garage sale.

“Hoping” a text message or social media wall post exist does not make them a reality. With that said, it is a challenge to draft a more specific discovery request without knowing who the Defendant communicated with regarding the incident in the lawsuit.

Discussing possible custodians, whether they communicated by email, text, or social media, is an excellent meet and confer topic. Another good pointer is to narrow the time period, which the request at issue in this case did do.

If a requesting party is after specific social media communications, requesting messages or postings from specific dates, stated topics and between named individuals are factors to make a request narrowly tailored. For example, a party in an auto accident may take a photo of the car damage on Instagram (which would be odd, but possible). Instead of requesting all social media photos, requesting any photos taken the day of the incident would certainly be one way to acquire the discovery.

Denial of “Twitter Appeal”

TweetingBlueBirdsThe New York Court of Appeals denied Nonparty Twitter, Inc.’s appeal in People v Harris as “academic” and moot, because the Tweets in question had been produced pursuant to the State’s subpoenas. New York v. Harris, 2013 N.Y. Misc. LEXIS 2039 (N.Y. Misc. 2013).

The case involved the prosecution of an Occupy Wall Street protestor and the DA’s subpoena to obtain the Defendant’s Tweets.

The Tweets were relevant to an anticipated Defense argument that the police forced the protestors onto the non-pedestrian part of the Brooklyn Bridge, instead showing it was planned by the protestors. People v Harris, 36 Misc. 3d 868, 876 (N.Y. City Crim. Ct. 2012).

Twitter actually changed their Terms of Service after the first ruling in the case over whether the Defendant had standing to challenge the subpoena, based on who “owned” the user’s Tweets. People v Harris, at *872.

Judge Matthew Sciarrino’s order has wonderful statements on modern litigation involving social media. Here are selected of highlights from his June 30, 2012 order:

If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.  Those private dialogues would require a warrant based on probable cause in order to access the relevant information. 

People v Harris, 36 Misc. 3d 868, 874 (N.Y. City Crim. Ct. 2012).

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves (Stephanie Rabiner, Esq., Technologist, Do Judges Really Understand Social Media? [May 9, 2012]). Judges must then do what they have always done – balance the arguments on the scales of justice. They must weigh the interests of society against the  inalienable rights of the individual who gave away some rights when entering into the social contract that created our government and the laws that we have agreed to follow. Therefore, while the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision. In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.

People v Harris, at *877-878.

As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

People v Harris, 878.

Bow Tie Thoughts

Just as a person’s eyes are a window to their soul, social media is a window into statements of future intent, state of mind and party admissions.

The evidence issues in social media can become complex, from “checking in” at location on a social media app being a present sense impression to layered hearsay with a video of a witness recorded on a smartphone at an incident, then shared by another declarant on their social media profile. Each declarant made an out-of-court statement that if offered in court would have to meet an exception to the hearsay rule (or somehow be non-hearsay).

The battle in most civil and criminal cases is not that social media is relevant, but what social media is relevant. A party cannot simply request a person’s entire social media profile. The entire profile is simply not likely to be relevant. It also smacks of an invasive fishing expedition. Moreover, who actually wants to read every status message from a person over a period of years?

The issue for many litigants is requesting specific postings over a set period of time, or a defined topic, or communications with others made over a posting. In effect, the requests must be narrowly tailored and relevant.

Relevance, Social Media & Personal Computers

In an employment dispute, the Defendant sought access to the Plaintiff’s Facebook profile and personal computer. The case had involved several discovery disputes challenging the Plaintiff’s discovery productions. Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, 5-9 (M.D. Tenn. Mar. 20, 2013).

SocialMediaExamplesAmong the discovery requests, the Defendant requested “Facebook and/or other social media data” and “Any computers or digital storage devices used by either Plaintiff during and after her employment with Defendant.” Potts, at *3.

The Plaintiff explained they had produced her day planner, documentation of “write-ups” and “store visits” from her employment and all emails relevant to the case. Potts, at *3-4.

The Plaintiff challenged the request for full access to the Facebook profile, arguing that the Defendants had failed to make a “threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.” Potts, at *4-5, citing Thompson v. Autoliv ASP, Inc., 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928, *4 (D. Nev. June 20, 2012).

The Plaintiff also objected to the request for the computer as unduly burdensome, because she had “produced” the relevant information from the computer. Potts, at *4.

The Court held that that Defendants did not make a showing that the Plaintiff’s public Facebook profile contained information that would reasonably lead to the discovery of admissible evidence. Potts, at *7. The Court based its findings on the Plaintiff’s discovery productions and case law. Id. The Court cited the following in their decision:

[M]aterial posted on a ‘private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Potts, at *6-7, citing Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).

However, the personal computer was another story.


The Court agreed the physical production of the computer could lead to admissible evidence, however the parties were ordered to “agree to a word search of Plaintiff’s computer by an agreed neutral party.” Potts, at *8.

Bow Tie Thoughts

Discovery requests are a mix of art and science. Drafting requests requires an attorney to consider the possible sources of ESI, analyze the case facts and draft the reasonably tailored request for discovery. This is easier said than done.

Attorneys really need to be thoughtful in drafting requests for electronically stored information on social media. Done too broadly, it can be the moral equivalent of demanding an MRI in a breach of contract case. At the end of the day, the requests must be for relevant ESI.

Personal computers are another story. A requesting part simply does not get to forage for evidence through someone’s computer. Courts put safeguards in place to avoid privacy from being invaded, such as neutral examiners and the opportunity for privilege review before production.

A good practice is to image a personal computer after a triggering event to preserve any possible relevant information. Costs for such imaging have come down considerably, ranging between $300 to $500 for service providers. This is a very worthy investment compared to the costs of motion practice or defending spoliation claims. Analysis of the contents, searching and processing will drive the cost up; however, talk with the service provider on how they charge for these services. It might be hourly or a flat rate.

Let’s Ask Dad About the Attorney-Client Privilege

The Defendant, apparently well versed in social-media, requested “[a] complete copy of all communications” between specific individuals and the Plaintiff sent on “Facebook, in a blog, via e-mail, text message, voicemail, letter, facsimile, or anywhere else.”  The Defendant requested the ESI be produced in their “original, unaltered form.” Armstrong v. Shirvell, 2012 U.S. Dist. LEXIS 65697, 5 ( E.D. Mich. May 10, 2012).

The Plaintiff, a college student, objected to producing communications with his father, because his father was an attorney and counseled him on privacy expectations. The Plaintiff believed that his communications with his father to be privileged and protected from disclosure. Armstrong, at *6.

The Defendant countered that the father was a witness to the case who tried to gain access to the Defendant’s Facebook account “by posing under a fake name.” Armstrong, at *13.

The Court held there was an attorney-client relationship between the Plaintiff and his father. As such, the Plaintiff did not need to file a response to the Defendant’s discovery request.  Armstrong, at *14-15.

Bow Tie Law

Just as doctors have family members who call them with health related questions, the same thing happens to lawyers. The issue can become tricky when a question turns into legal advice and your aunt is suddenly a client.

It is very well established that email communications with an attorney seeking legal advice, or the reply giving legal advice, are protected under the attorney-client privileged. It is not a stretch to see a college age son texting his mother the attorney for legal advice. Granted, I am confident no parent wants to see a text seeking legal advice from his or her child at any age.

However, questions seeking legal advice that are public on social media profiles, such as a public wall post from a college student to a parent attorney, arguably were not asked in confidence. When it comes to the attorney-client privilege and modern communications, one must ask, “How was the communication made?” For example, was the text message seeking legal advice sent from a work issued smartphone with no expectation of privacy?

We hold the attorney-client privilege with the upmost reverence for those seeking and providing legal advice. However, those seeking and providing advice must not inadvertently breach the privilege by communicating in public forums where there is no expectation of privacy.

Identifying Defaming Defendants with Expedited Subpoenas on Social Networking Sites

The Plaintiffs in 1524948 Alberta Ltd. v. John Doe 1-50 claimed they were the victims of trademark infringement, trade libel, defamation and intentional interference with contractual relationships. The Plaintiffs claimed the unknown Defendants used a website “to publish allegedly “false, defamatory and infringing statements and to conduct other unlawful activity targeted at Plaintiff and its website…” 1524948 Alberta Ltd. v. John Doe 1-50, 2010 U.S. Dist. LEXIS 100482 (D. Utah Sept. 22, 2010).

The Plaintiffs sought expedited discovery from Facebook and Twitter to identify the Defendants, so the Doe Defendants could be served with the lawsuit. 

Discovery does not commence until there has been a Federal Rule of Civil Procedure Rule 26(f) conference. 

If a party is seeking expedited discovery before the Rule 26(f) meet and confer, the moving party has the burden of showing good cause. 

Good cause exists where there are claims of unfair competition, infringement or physical evidence may be destroyed with the passage of time. 1524948 Alberta Ltd., at *1-3.

The Court found good cause to grant the Plaintiffs’ request for expedited discovery.  1524948 Alberta Ltd., at *3.     The Court cited that infringement cases warrant expedited discovery.  Moreover, the Court noted that the discovery was transitory in nature and was required for the case to go forward.  1524948 Alberta Ltd., at *3-4.

The Court specifically ordered:

…Plaintiff may serve subpoenas upon those advertising networks as outlined in its motion to discover the identity of Defendants. These subpoenas may seek the “user data, including origination information, contact and payment information, to identify those Defendants directly responsible for running advertising on the BPAW website as well as the recipient of the revenues realized by BPAW as a result of those advertisements,” but the subpoenas shall not request any revenue amounts. At this time the court is not persuaded that the amount of money Defendants received from advertising is necessary for Plaintiff to discovery their identity.

1524948 Alberta Ltd. v. John Doe 1-50, at *4-5.

Bow Tie Thoughts

One justification for expedited discovery includes the loss of “physical evidence from the passage of time.”  1524948 Alberta Ltd., at *1-3.  The transitory nature of data being both prolific and fragile is conceptually the same as physical evidence being lost from the passage of time.  It should not be a surprise if expedited discovery is ordered as a matter of standard procedure for these sort of online tort cases.

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.