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Use of Electronic Evidence at Trial

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Use of Electronic Evidence at Trial

This course is designed to address the various evidentiary issues that arise with electronic evidence. For example, the presentation will cover the use of social media as evidence and how it is obtained and introduced into evidence. There will be a discussion of some of the preliminary evidence rules that are sometimes overlooked that can apply to social media and other electronic evidence. Issues with juries using social media during trial will also be covered. There will be a general discussion of the application of the hearsay rule to electronic evidence, and how to lay the proper foundation. Rules regarding spoliation of electronic evidence and the effect will be examined. The presentation will also deal with statutory provisions regarding discovery electronic information from third party providers. With the increased use of e-signatures, there will be coverage of issues that arise when introducing a document that has been electronically signed.

Presenters

John Snow
Shareholder
Parsons Behle & Latimer

Transcript

John Snow: Hello, my name is John Snow and I'm with the law firm of Parsons Behle & Latimer, which has offices in various western states. And one of the things that I do for a living is practice law in courts. I'm what some people refer to as a litigator, although trial lawyer as a term sometimes gets outmoded because we don't try cases as frequently as we used to.

   And speaking of what we used to do, we used to never worry about social media because when I first started practicing, this was not even a concept. But over the last 10, 15 years, or maybe even longer than that, evidence and introduction of evidence regarding social media has become more and more significant.

   And today's presentation is going to be on the use of electronic evidence, and is not going to necessarily be the technical aspects of painting the evidence for its introduction. It's going to be some of the evidentiary rules that relate to the introduction of social media and how you lay a foundation, how's it come in.

   So first of all, what is social media when we use that term for purposes of analyzing it under the rules of evidence? And the first is that social media is any digital tool that allows the user to create and share content with the public. In other words, it's one person sharing or one person or one company sharing information to the public generally.

   They all have a lot of their own specialized purpose or function. For example, Twitter is sharing links and short messages, Instagram and TikTok are built to optimize the sharing of photos and videos.

   It is estimated that there are 3.5 billion daily users of social media, that's 45% of the world's population. And the significance of that to keep in mind is when you're doing discovery, think about social media. Where has this person you're deposing or your opponent or this witness likely to have broadcast on social media about the facts relevant to this litigation?

   Now, of course, the easy one, the most obvious one is the plaintiffs who have been involved in some type of accident and they're injured. And then they start posting on their Facebook account pictures of them playing volleyball or basketball, and doing things that they've just testified that they can't do. You can find those types of things on social media.

   You can also find advertisements of sorts by companies, touting product that later fails. And you can use those representations contained in those social media publications, like advertising, to show contradictions in their current position about what the product can and cannot do.

   But when you have that many people using social media, you know that is a good source of information that can work adversely against your client.

   In the slide, there's going to be a showing how different users, and one of the things that is important is that 90% of millennials, people born in the eighties and nineties, use social media, but even baby boomers who were born between World War II and the mid-sixties, 48% of those people still use social media, even though those are generally older people and may not have all of the technological skills, they do use things like Facebook and some of the more basic social media outlet.

   And then, the average user spends three hours a day. Now these are individuals, of course, but as I stated, entities and companies and corporations use these social media outlets on a regular basis.

   Social media is unique because it broadcasts are relatively uncensored. So you can have a person make a broadcast and say almost anything they want, even if it's harmful to their case, because they don't associate their lawsuit with their broadcasting on social media.

   Of course, there's websites, there's social media. There's other electronic forms of communication like with Facebook, but you do have, in using the term broadly, social media can include one-on-one broadcasting, although it's generally considered one-on-many broadcasting.

   For example, SMS or text messages is a one-on-one tool, but it's still a source of broadcasting a person's thoughts, feelings, beliefs to another. And so, even though it may not fall within the general definition of social media, it's something to consider, and that's text messages.

   You would not consider trying a case or developing a case without asking for all communications. And that would include email communications, but it also includes text messaging communications and both of those have their own foundational issues just like any other social media.

   There is also being, in the last few years, a social trend of, I mean a jury trend of the jurors actually using social media during the trial. Now, you know that the jury instruction that's given to the jury panel and to the jurors when they're impaneled is that, "Don't speak to anyone about the case. Listen to all the evidence, don't make your mind up until all of the evidence is in. Listen to each juror," they give the jurors the instructions.

   However, jurors, I don't know why people do this, but some jurors will still use social media, not to communicate with one person, but to broadcast generally how the trial's going during the progress of the trial and who they believe, who they don't believe, how silly the story is or how silly the defense is. And they actually give those kind of comments to the public.

   They also get responses to that. They start, in fact, getting information from the people they're broadcasting with that is not admissible evidence and it does impact the juror's mind. And this is a social media issue. Obviously, a juror listening to social media and being involved in social media during the trial is going to result in an unfair trial.

   I mean, you can't control jurors once they're outside the courtroom normally, but one of the things that lawyers have done in cases where there is a risk or even any risk that social media by the jurors may result is that they monitor the social media account of the jurors. And that is not inappropriate contact.

   Some states have now actually adopted regulations regarding the access to a juror's social media by the attorneys or parties involved in litigation. Others states that have not specifically issued rules or regulations on this topic, but the courts have opined on the issue and stated as long as they don't have direct communications but they're merely monitoring the social media site that is not an intrusion or a violation of the rules regarding no contact with jurors.

   In a high profile case though, you have to know you're going to run the risk of having jurors using social media. Of course, they're going to have private communications as well, not just verbal where it's face to face, but they may have over text messages or email. Very little you can do about that, other than have the judge on a daily basis remind the jurors that when he or she says, "Don't communicate about the case with anyone, then just listen to the evidence," that that includes social media and that includes emails and text messages or any electronic form of communication.

   If the judge says it enough times, perhaps the jurors will actually try to comply with the directions of the court. And sometimes the judges just read these instructions so quickly that the jurors don't comprehend. The judge needs to state it clearly, concisely, give examples and talk about the repercussions of being caught involving in social media, so that they'll know that they can be fined or even held in contempt of court by engaging in social media.

   Now, you don't want to have it too draconian for these jurors so that they are not scared. But on the other hand, you need to make sure that they're not engaged in social media, because if they're getting their information outside of the courtroom, the jury's decision is not going to be fair and reasonable for the parties.

   And I mentioned that there is some states that have permeated legislation or rules regarding jurors use of social media during trial. In California, the legislature in 2016 actually passed a law that provided that the judge could issue a fine up to $1,500 for jurors caught using social media.

   Now that is an aside on social media. It is something that you can address with the court in motions and limine during the pretrial conference on how that's going to be handled and what the requests are going to be. Don't wait to bring this up until the morning of trial, unless for some reason your pretrial conference is the morning of trial, and that does happen from time to time.

   It's frustrating to me when a judge decides that the jury instructions aren't due until towards the end of the trial, and then the judge sets on the jury instructions and gives you his or her version of the instructions the morning they're supposed to be given to the jury, giving you very little time to make appropriate objections and modification.

   The same is true with pretrial conferences, is that if you wait until the last minute you can't come up with the procedure or how you want to deal with jurors who may be engaged in social media during the trial.

   Now again, if you're permitted in your jurisdiction or court to do voir dire you can also do voir dire on social media and find out those who are more likely to engage in social media than those are not.

   For example, if I was a potential juror in question, "Do you use social media," my response would probably be, "Not well. Very infrequently, and mostly through my firm. I'm not somebody who would be using social media to broadcast any thing about the trial."

   But on other hand, there are people who spend hours every day on social media. Those are the people you're going to want to monitor. So how do you deal with social media?

   If it's a significant part of your case and there is a question about authenticity or admissibility or what can or can't be used and/or the rule of completeness, which is in Rule 106, and I'll get to that in just a minute, file a motion in limine on the evidence and ask the court to rule now whether or not the foundation you are laying for this social media is going to be accurate, not accurate but sufficient to get the information introduced into evidence.

   You can present it to the court by motion in limine with supporting affidavits as to how you're going to have it introduced. Give the other side their opportunity, of course, to object to it. The judge makes the preliminary decision, tells you if you need more to get the information introduced or that you don't have enough;

   Under Rule 104, and I'm citing the federal rules so that it has national application, under Rule 104, the court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. And so deciding, the court is bound by evidence rules except those on privilege.

   So when you file your motion in limine it's going to be under Rule 104 to ask for a preliminary ruling on admissibility of the social media. Relevance is that standard is applicable, whether or not it is social media or any other piece of evidence, but if you have an issue on relevance that's another time you can bring it up. And, in fact, that's generally, I think, based on my limited experience in trying cases, by my experience is... I'm kidding about my limited experience. My view of it is that most motions in limine deal with relevancy in any event in some fashion or another. So Rule 104(b) is generally going to be something that you're familiar with in any case.

   Also, when you're doing these preliminary questions, if there's a challenge they're supposed to be conducted outside the hearing of the jury, so that if you do wait for trial and your opponent is going to produce social media and you have a question about its authenticity, it's reliability, the foundation, you can bring the matter up and ask for a hearing outside the presence of the jury.

   But to avoid doing that and wasting the time of the juror, the better weight, better practice I think is to file the motion in limine and have it ruled upon prior to trial.

   Now with a judge trial, when you're doing a bench trial, and I do a fair number of bench trials as well, and I don't file very many motions in limine, if ever. I mean, I can't say if ever because I have with a bench trial, because the court's... I mean, one of the reason you file a motion limine is so the finder of fact is not going to hear the evidence. So doing it before trial with a motion in limine doesn't change anything.

   Now there are times to file motion in limine, and that is when you're trying to really identify the issues, so that you don't bring witnesses that are unnecessary or that you have the witnesses that are necessary to prove or disapprove an issue of fact. And so, by filing a motion in limine, even with a bench trial, can help limit the issues.

   However, that said, remember, motions in limine cannot be used in lieu of motions for summary judgment. A motion in limine is not a way to get a ruling as a matter of law on an issue, but it's a way to get clarification on what the judge is thinking regarding what the issues are and where we're going, without having it done during the middle of the trial, and so that you have the necessary witnesses and evidence.

   One of the problems that problem should actually be addressed at the pretrial conference, but there are some judges and some jurisdictions who just don't rely on the pretrial conference process to ferret out issues, or the lawyers don't come prepared to ferret out the issues because the pretrials a month before trial and whoever gets ready for trial until two days before or a week before, or sometime period after the pretrial conference, and that's when they realized they've got an issue. Another way to do it, of course, is work it out with the other lawyer.

   In social media cases, another thing that can come up is that the social media that's being introduced is only relevant to one party, the party sending it, but there's multiple parties, and the jury or the judge, whoever the fact finder is, may paint with a broad brush. And because one defendant published something on social media, what effect does it have on the other parties?

   And indeed you can get a restriction that evidence that is admitted can be for one purpose or was to one party only. So when you get the jury, not jury, the witness and exhibit list, if you see and you know that there's going to be, and you probably have anticipated this already, evidence made by one party, that's not a co-conspirator or a business partner or an agent for the other party, and it's only going to come in for one purpose and it's only for one purpose for one party, you can get a jury instruction stating that this is only coming in for the limited scope.

   One of the problems you have is the jurors don't for fully understand that. And so, you need to have the judge or request the judge to give a full explanation of what that means. And then, in your closing argument, you may want to give it again, depending on what the evidence is.

   Sometimes you make a calculated risk not to make an objection during closing our arguments or questioning or examination because you don't want to emphasize the issue. By making the objection, you emphasize the issue.

   And I had a case where it involved a really high end HOA development in Park City, Utah. Everybody on the jury knows where this was, what it is and who lives there. But the plaintiff's lawyer made reference to the wealth of the people who lived there and the HOA and all those kinds of things. But he did it in a very quick, just mentioned it and moved on.

   And my thought was do I make the objection? And he moved on quickly enough that if I make the objection, moved to strike or take corrective action or remedial action as a result of that statement, am I just highlighting something that they already know anyway? And I'm going to get a jury instruction that wealth is not to be considered in making decisions, I mean, among others. So I made the decision not to [inaudible 00:20:47]. Actually I'd stood up and then sit down. But in any event, sometimes you don't want to make the objection.

   Going back to the point here is that sometimes you don't want to emphasize a piece of evidence and it may be that that evidence doesn't relate to your party. Although generally I would not see that as way to go, that the better way would be generally to make sure that evidence is restricted to one party. And then in closing, if the judge doesn't do it, you do it, that you explain what that means.

   I mentioned this earlier, and this comes into play with social media, is that when part of a document is introduced, the adverse party may require the introduction at that time of any other part of the writing or recorded statement in fairness out to be considered at that time.

   Now with depositions where you have a party whose deposition is being read, as opposed to being examined, and they finish a section but the next page clarifies the comments that were read into evidence, you stand up and make the statement, "Under Rule 106, I would like this portion of the deposition read as well." And the court generally will not know what Rule 106 is, which is the rule of completeness, by the way.

   And so, the judge is going to say, "You can take care of that on cross." Well, you may not get to cross on that particular witness until the next day. And so, when you read the rest of the statement, you've lost the ability to immediately change the view of the jury regarding what portion of the deposition that is read.

   One of the things that can happen is that in the pretrial disclosures, the judges require that the deposition portions of any depositions that will be used in lieu of testimony has to be provided to the other side, but it doesn't deal with impeachment. And so, therefore you're not going to always be caught in a position where you can bring this up, you have the time to present to the court.

   But if you do have a heads up on what's going to be used because of pretrial disclosures or anything else, file a motion in limine under Rule 106 and ask that it may be made clear that when the witness reads or, excuse me, when the lawyer reads this portion of the deposition, they have to read the whole thing.

   Now, same is true with social media; that if they're going to introduce this comment that was on the social media chain, then they have to reduce the whole document, which includes the statements that are favorable to your case, and refute the portion of the social media that the party is going to use.

   The other thing is when somebody introduces social media and it's not a complete document, the other thing to object is it's not a complete document and that you want the whole document introduced. The judge will understand that objection and may require them to produce the entire record.

   But when you say, "I want them to read further," frequently the judges knee jerk reaction, unless they've been given a heads up or advanced notice, is going to be, "You can cover it on cross."

   Now, another issue with social media is how do you authenticate it? You have to authenticate any documentary evidence that comes into trial, just like with a witness; the witness has to have personal knowledge, the ability to observe and can restate it.

   However, the duty is on the plaintiff or the party that's going to introduce the evidence that whatever they're introducing is what it claims to be. That is the standard. So you can have a witness testify with respect to social media, "I went to the Facebook page of the defendant. I took a screenshot of the page. This is the screenshot. And this is what I saw on the Facebook page of the defendant." That is enough for that screenshot to be admitted into evidence, because you have a witness say, "This is what I observed. This reflects what I observed. And this is a how I created it." That gives the foundational requirements for the document.

   It is exactly like a photograph. You don't have to have the photographer who took the picture testify how they did it. What you have is somebody who sought, can authenticate the photograph by saying, "This photograph is what I saw on a date certain."

   Now with electronic evidence and social media, it is also helpful for purposes of foundation to state how it was obtained, which further authenticates why it's authentic and it is what it purports to be. Although it may not be necessary in all cases if you have a witness to say, "This is what I saw and this accurately reflects it."

   Another way to authenticate something is because of distinctive characteristics. If there is something on the web page or the Facebook page of the witness that is reflective of something only the witness knew or what the witness did that may be sufficient distinctive characteristic for that document to be authenticated because of the distinctive characteristic.

   Let me give you an example. If there is communications back and forth between the owner of the Facebook account and a third party, they're communicating, the communications are in context with what is being sent to the Facebook owner of that Facebook site. And that would indicate that, in fact, it is authentic because it flows naturally and logically from the prior communications. That is also a distinctive characteristic.

   I cited just a couple of cases regarding admissibility. And the first one is sometimes social media or any online postings can be authenticated as business records, where you have this is prepared in the ordinary course of business, da-da-da-da-da, and it reflects what it proposed to reflect, like a posting of profit and loss statements by a company to its shareholders is something of that nature. And so, it can be admissible as a business record.

   However, if you can't meet the criteria for establishing it's a business record, because it's, for example, not prepared at or about the time of the event and doesn't reflect the event necessarily, there's other ways to get around it if it's not a business record. Don't give up on just that. And you can do it through the ways we've just been discussing. That is more of a hearsay issue, by the way, but it's still something to consider.

   And then in this next case, [Randaz 00:28:28] v. Cox, it states that the courts have considered how a website printout or blog posting may be authenticated, and noted that the courts that have considered the issue found it was sufficiently authenticated where their proponent of the website declared that they were true and correct copies of the pages on the internet and the printouts included their web page URL address and the dates printed. That's another way of doing it.

   It may just be simply sufficient just to say, "This is what I saw, and this is what it is." The more information you have, of course, like the URL or how you actually printed the page could be helpful in getting it admitted when there's other issues opposing the admission of the document.

   And this Haynes case, Home Depot, noted under distinctive characteristics that the article submitted by the plaintiff did not contain sufficient indicia of authenticity and excluded the web page. And then of course, it was produced and identified during discovery. That can also be sufficient foundation for the information to be admissible, which is one of the reasons why I put in my response to requests for production of documents, as do everybody I suppose, states that just because I'm producing this document doesn't mean that it's authentic, that I prepared it or my client prepared it, or that reflects any views of the client.

   Now how effective that is, I don't know, but it's a way to get around the notion that if you produce it, it's admissible. And that is the rule, like in this case, that is frequently the rule for getting something admitted. So if the other side produces the Facebook account information and you want to use it, and you just point to their control number on the documents as something they produced, it can come in.

   Now the bigger issue with social media deals with the hearsay rule. Hearsay is contained in Rule 802, and it's not admissible unless otherwise provided by statute or or other rule prescribed by the Supreme Court, this of course is the federal rules.

   And so, what are the definitions applicable to hearsay? First, it's a statement, means a person's oral assertion, written assertion, and written is going to be the social media, nonverbal conduct that the person intends to be an assertion.

   So if it is somebody reposting, it can be an assertion, but it may not be of the party's statement. It can be merely a reposting of something that they had seen or resent.

   Declarant means the person who made the statement and hearsay means a statement that the declarant does not make while testifying at the current trial or hearing. So if the declarant testified, even at another hearing, it still may be, well, it is hearsay, but there are exceptions that allow it to come in, and the party offers in evidence to prove the truth of the matter asserted, then it's hearsay.

   So if you're using social media to prove a matter, to prove a fact, so in the social media broadcast it says I was at the beach on June 6th. And you want to prove that fact based on the social media posting, you're introducing it for the truthfulness of the assertion so it is in fact hearsay.

   If you're only introducing it to show that you took action as a result of that information and not for the truthfulness of the assertion, then it's not hearsay.

   There are various statements that are not hearsay, for example, the declarant testifies in a subject's cross examination about a prior statement. And so, if you have the person who made the posting on social media there, and they can testify about that prior statement on social media, and it's not going to be hearsay if the statement is inconsistent with the declarant's testimony and was given under penalty of perjury at trial hearing or other proceeding.

   So if they've made the prior statement in social media and it's presented to the declarant to explain as inconsistent, or at least it's shown to the declarant as inconsistent, it's not going to be hearsay, or if it is consistent with the declarant's testimony, if it's offered to rebut expressions implied or expressed that the testimony is recently fabricated.

   For example, if the, the issue of I was at the beach on June 6th is questioned by the opponent, you can bring in the posting that says I was there at June 6th or if it's on or about the date indicated. So it's a prior consistent statement to bolster the credibility of the witness who has now been attacked.

   You can introduce this type of hearsay against an opposing party. In any event, against an opposing party, you can practically produce anything if it's offered against the opposing party, as opposed to somebody else, which has different applications based on what we just got through discussing, declarant witnesses prior statements.

   An opposing party statement, it doesn't matter, but here's what: it has to be made by the party as an individual or in a representative capacity if it's against a company, is, one, the party manifest that it adopted or believed to be true. So if it's just a reposting without more it's not necessarily an adoption or a statement that they believe the statement to be true. So it would not come in as an opposing party's admission.

   The person who made the statement against a party, such as an entity has to be authorized to have made the statement, or it was made by an agent or employee active within the scope of their duty to the agent or principal, or was made by a co-conspirator.

   So those against opposing party, it can come in more easily than if it's regarding a third-party witness, but social media can be for impeachment and therefore can be a very valuable tool. And, in fact, that's generally my view on how social media is used most frequently, is that it's used to impeach.

   Now, there's also exceptions to the hearsay rule that come into play, and those contained in Rule 803; the present sense impression, a statement made describing or explaining an event made while or immediately after the declarant perceived it. If there is an immediate posting of what the witness has seen, it can be admitted as a present sense impression.

   That is probably going to be a little harder because they're actually taking the time to write it down, which arguably would give them time to modify the facts as opposed to a verbal expression, which is more spontaneous. But it's an argument to keep something out, but it'll probably come in and the jury can give it the weight it deserves.

   Expressions of existing mental, emotional, or physical condition, including motive, intent, or plan; a frequently used, an exception of the hearsay rule, where a person is talking about their physical condition on a website.

   If they're suing a doctor or somebody for an injury that they have sustained and in their website they're talking about their physical condition and they don't discuss the very issue that they're suing on, that might be something where you can say, "This is an expression of physical, emotional condition without discussing the specific injury that they're complaining about."

   Now, of course, if it's against a party, it comes in anyway because it's not hearsay. But if it's against a third-party witness where this is pertinent, it can come in.

   Of course, regularly conducted activities, i.e business records, are going to be admissible. Those are the primary exceptions where you're going to get issues with social media.

   And let's see, I only cited this United States of America case v. Jason [Way 00:38:16]. The declaration from the records custodian, both Google and Yahoo, make no representation of the identities of the senders of the email. Therefore, there is a question about foundation because the identity was not provided in the production by the providers.

   But then the court goes on: there being no other objection from the defense, the government's motion for pretrial authentication as to the records referred to in the notice is granted.

   I also cite this case because it shows that in this case there was actually a motion in limine to have a determination of whether certain records or documents are going to be admissible. And in that case, it was emails. And to qualify for admission under the exception to the rule against hearsay, subject to the limitation that the emails and questions were sent or received from identified email address and subject to any other objection, including relevancy or other form. All the court was doing was granting a motion of authentication.

   Another issue that can come up with social media is the best evidence rule. And you frequently hear the objection best evidence rule not in relationship to a document, or that you have a witness testifying about events that can be proved in another way. And you'll hear the lawyer say, "Well, that's not the best evidence." And they think there's an evidence rule that says the party has to bring forth the best evidence.

   Now, I only mentioned that because I've recently seen it, but the best evidence rule actually just deals with documents. And the best evidence rule requires that the original of any writing, recording or photograph is required to prove its contents, except as otherwise provided in the rules. That is the best evidence rule. The best evidence is the original.

   But the rules then go on and say, "Duplicates are admissible," just like taking a screenshot of a social media post using your phone or other device to take a screenshot so that you have a copy. Duplicate is admissible to the same extent as the original, unless there is actually and a question regarding authenticity or the circumstances that make introduction of the document unfair.

   The evidence is also not required. The original is also not required where the original has been lost or destroyed. It can't be obtained through judicial process, for example, it's outside the jurisdiction of the court and there is no way to get a subpoena to bring the document to the jurisdiction of the court. The party against whom the original is going to be offered, the copy is going to be offered, has control of the original. And that party was put on notice that the copy was going to be used. And so, if they had a problem, bring you the original, or if the document is not closely related to a controlling issue.

   And this case of [inaudible 00:41:46] that cited merely references, the fact that the best evidence rule is a rule of preference. And so, there are a number of exceptions that can come into play to get around the best evidence rule.

   And then, McCormick defined in this court, cited as McCormick, as saying, "Improving the terms of a writing, where the terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason, other than serious fault of the proponent."

   That is the best evidence rule. And so, it obviously will come into social media. There's no really good way to get most originals that are posted on social media.

   Another thing to keep in mind when you're dealing with electronic evidence is the Stored Communication act. Although that case I just cited about Google and I can't remember the other, Yahoo, dealt with the production of emails. I'm not going to spend a lot of time on this. Just keep this in mind: the Stored Communication Act does come into play, because it governs the disclosure of electronic information.

   So if you're trying to get electronic information and records held by a third party internet service provider, you, they are protected from production. There are some exceptions, well, there's a lot of exceptions actually, but there are exceptions. You need to know the Act if you're going to start subpoenaing third parties for information.

   For example, in this Facebook case, the court noted the Stored Communication Act prohibits providers from disclosing the contents of covered communications, stating that providers shall not knowingly divulge to any person or entity the contents of covered communication, except as provided in various sections of the Act. The court in this case went on and said none of those exceptions applied, so therefore they could not force Facebook to produce.

   The same as in the next cases, some of the exceptions include disclosure of the intended recipient or agent of the intended recipient. So that if the email is addressed to the party seeking the information, it can be produced. You have the consent of the originator. Disclosure is necessary in order to protect the rights of the property or the service provider.

   By the way, one of the ways to get consent is sending out written discovery, asking for consent, just like they used to do with respect to medical records, where you got the consent in response to the discovery. Now there's other ways to take care of that. And so, but it's still available.

   Disclosures to law enforcement, but that is, again, subject to prohibitions or limitations. And, say, third-party employer or entity authorized to forward the communications to its destination. And disclosure is an incident to providing services. Otherwise, those do not come in. Otherwise, without applying to the exceptions, the Act will preclude production by a service provider.

   Another issue with social media, more so with respect to emails, I suppose, is the concept of spoliation. First of all, in the rules themselves, Rule 37(c) on the rules of procedure, it specifically contains a prohibition of destroying electronically-stored information once there is knowledge or anticipation of litigation. Then, at that point, the parties have to take reasonable measures to preserve and protect any of the electronically-stored information.

   And if they find that the party has lost information that was to be protected, the court, upon a finding of prejudice to the other party, may order measures no greater than necessary to cure the prejudice. That can include such things as a jury instruction that the jury may presume the information lost was unfavorable to the party who permitted the information to be lost. The court can go so far as to even dismiss the action in the event of a loss of electronically-stored information under Rule 37(e) of the rules of civil procedure.

   And these cases here also deal with sanctions being imposed about the failure to retain and preserve electronically-stored information.

   And this [inaudible 00:46:58] case talks about what is the standard for preservation, and noted the question of reasonable foreseeability of whether or not there is going to be litigation is a flexible fact specific standard that allows a district court to exercise the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry.

   That gives parties no guidance, but keep this in mind: you don't need a lot of guidance in this. If there is the hint of litigation, you take actions to preserve the information, not only to so that the other side may get to it ultimately, but also to protect; your client will have the evidence and the evidence may need to come in to support your client's position. But, of course, you run the risk that it won't.

   I recently have, and it's still ongoing, a case where it wasn't social media that was destroyed, but it was emails, which is being covered by today's presentation. In this case, there was a joint website that was being used. And for some reason, the defendant in the action was emailing customers and directing them to a new business, and was also sending communications to his attorney on a publicly, well, not publicly, but of a website that was shared with the plaintiff.

   And so, the plaintiff goes in and does a history on the emails and sees that they were all destroyed. She hires a forensic, or we hire a forensic accountant person who comes back and says when and how the emails were destroyed. And then, was able to restore them all.

   And so, we ended up getting communications between the defendant and the defendant's attorney. Now, whether or not the privilege has been waived is problematic. And in my view, it wasn't a privileged communication. I mean, we're taking the view that they weren't privileged communications because he sent the emails on something that was not a confidential platform, but in any event, the letters aren't all that helpful.

   We notified the other side, agreed not to use them until we got a ruling because we were trying to get some settlement issues, but ultimately we didn't get it settled. So ultimately we're going to have to have a court rule on whether or not this kind of information can be used.

   So when you're talking to your client about preserving, you also may want to suggest be careful what you write and where you write it going forward. One of the common mistakes we all make on email, at the least I do and therefore I assume others, is I send emails to the wrong person. I don't want to say all the time, but it happened to me yesterday. I received the initial disclosures from the other side, pretrial disclosures, excuse me. It doesn't matter what I received. I received something from the other side, and I forward it to somebody with a common name, but because of auto fill, the first person with that common name fills in. I hit send without paying much attention.

   And then about an hour later, I get an email back saying, "I don't think you really meant to send this to me because this is not our case." And he was correct. I needed to send it to another person.

   But nonetheless, we all make those kind of mistakes. But one of the mistakes we can make is that we send it to our opponent, that somebody that can actually hurt you with the information that you're sending.

   A lot of firms do various things to protect inadvertently sent emails, but the final test or the final safeguard is you. And then, it's easy for me to say, because I apparently frequent send things to the wrong party, but you need to be careful. Some firms actually eliminate auto fill. They eliminate reply to all. They make you type in the entire email address, which is a pain, but some law firms have done that.

   Once they've been burnt a couple of times, they overreact. There could be a big flash that comes on to in some firms that remind you to verify the addresses of the email. But after you do that one a few times, you just automatically click reviewed and the email goes.

   Some firms can, and in fact, you can do this yourself on your email, have a little delay so that when you hit, because frequently you hit send and that's when you see the addressee for the first time and you realize you've sent it to the wrong party. And so, if there is a slight delay, a minute or so, you have time to call the email back literally or delete the email literally, and it protects you.

   Another area of electronic information is using electronic signatures. This does not relate so much to social media, but in today's world of electronic signatures on contracts, it has become an issue with electronic evidence, meaning electronically-signed documents.

   It's not necessarily social media, but when you have a document that has been electronically signed, you should not assume that it's admissible, because there are multiple defenses to the signature. And one is lack of foundation.

   There are two acts that govern signatures. One is the Federal Electronic Signature in Global and National Commerce Act. And the other is the Uniform Electronic Transactions Act, which is the state version of the Federal Electronic Act.

   Both of them permit and encourage the use of electronic signatures or sound symbols or processes for signatures. There are certain exceptions to what can be signed electronically, such as wills and trusts, but a contract cannot be denied its enforceability merely because it was signed electronically. That does not mean you don't have to prove it's the signature of the person whose electronic signature appears on the document.

   You can also have electronic notarization, where you have an independent body, the notary, that verifies the signature, takes a look at your driver's license or other form of ID. They record the method of your signing. And so, when you're dealing with a significant documentation or a transaction, a good practice would have the signatures notarized because that gives you another source of verification that the signatures have been properly signed by the party who says they signed it, or is now claiming they didn't sign it.

   These acts, the Federal Act, of course, is effective in all states. Not all states though have adopted the Uniform Act. So there is still some issue in that regard.

   And then, I've cited a few cases, the Banister case, where they talked about that you have to lay the foundation for electronic signatures by showing the process that was used, and how that process could only have been effective if signed by the person who purportedly signed it, by use of a code, by use of verification, by electronic means, by recording through the internet, using something like a zoom recording.

   And then, there are cases where the person absolutely denies that that's their signature, but to get the document admitted, you have to go forward with presenting evidence that shows that you have met this criteria for electronic signatures, and that the only person who could have used that electronic signature is the person whose signature appears because of something, for example, a unique login ID and password.

   Now the final topic is introduction to evidence. You introduce social media the same way you introduce any other tangible document. You have the witness explain what it is. You ask the witness, "Are you familiar with the exhibit?" You ask the witness, "How are you familiar with the exhibit?" You ask the witness, "How was the exhibit prepared," if it's social media. You ask the witness, "Is it the same or substantially the same as what you actually saw?" For example, I saw this on the website of X, Y, Z company, and I printed it off. That's how I created this exhibit. And does this exhibit reflect what you actually saw on the screen the day you printed this off? And the answer hopefully will be, "Well, why, yes, it is."

   And then, if signatures are present, for example, if it's electronically signed document or something else that had to be signed that came through on social media or email, you then asked, "Are you familiar with the signatures? And is this the signature of whoever it purports to be?"

   It's a simple process. It's just like using a photograph, which we have done since we started practicing; photographs, being a very common form of evidence.

   And then, in a couple of cases that are dealing with this issue, the Randoza case, which is a Nevada case, noted what other courts have considered the issue have stated that printouts from a website are sufficiently authenticated, where the proponent declared that they were true and correct copies of the pages on their internet and the printouts included their page URL address and the dates printed.

   Yeah, that is all always going to be sufficient, but you can get by with less probably, where you just say, "This is what I observed and it accurately reflects what I reserved."

   And then, this other case which we've talked about a little bit already, but this next case, the Hangs case, also talks about distinctive characteristics, which we talked about a few minutes ago. The court held that was a sufficient identification of the document to be admissible.

   The electronic information, electronic evidence, social media, there is nothing unique about it. It's like producing any other document into evidence. You disclose it. You make a copy, you disclose it on your pretrial disclosure or in discovery if it's requested, and you then submit it to the court in your witness binder, or however you produce witnesses in your jurisdiction. And you're good to go.

   I'm going to besides this: if you have any questions, especially if you're a young lawyer and you've never tried a lawsuit or have only tried a few lawsuits, and you're really not sure about social media's use at trial, although you're highly familiar with its use on a personal level, you may want to go ahead and file a motion in limine, or even, I don't like doing this, but asking the other side to stipulate.

   Now again, remember this: that in many pretrial rules, it states that if you don't object to the exhibit, it's deemed authentic. And so, not objecting to the pretrial disclosures may result in the document becoming admissible in any event, at least on authenticity grounds. Once they object, you can file the motion in limine. If you don't have that type of proceeding, file the motion in limine.

   Pretrial orders can take care a lot of these types of issues with respect to social media. But if you're in a jurisdiction where pretrial orders do not effectively control what is and not admitted, then file the motion in limine. It's a very helpful tool.

   Well, that concludes the presentation. I hope that you got even the slightest of benefit from the presentation, and thank you very much.

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1h 11s

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