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SOCIAL NETWORKING
AND E-DISCOVERY



          Mary Ellen King
     meking@kinglitigationgroup.com
      www.kinglitigationgroup.com
            512.322.5730
“Social networking is in its infancy
 and I’m guessing it will become as
widespread as email,” According to
Google’s former managing director
  for South Asia, Richard Kimber
SO WHAT DOES THAT MEAN FOR
 US, AND WHAT SHOULD WE
 BE THINKING ABOUT?
 The evolution of email is extraordinary.
    At the advent of email, it was seen as impersonal and
     taboo
    Today, most clients are using email
       Most courts are 100% electronic as well

    In the litigation, email is one of the main forms of
    communication, as snail mail communication as gone
    the way of the horse and buggy
 Today, social networking is still seen by many as taboo
  and impersonal, but what if it becomes as widespread as
  email????
CONSIDERATIONS
 Facebook, MySpace, Twitter – Is there a place for internet chat rooms
  and social networking pages in the legal industry?
 What are the risks?
 Are notifications to company hosted chat rooms and social networking
  pages official notice of claims/DTPA demands/etc.?
 Discovery implications
THE STATS – HOW COMPANIES ARE
DOING BUSINESS TODAY
 65% of Fortune Global 100 companies have active Twitter
  Accounts
 54% have Facebook fan pages
 1/3 of these companies have blogs
FACEBOOK STATS
More than 750 million active users
        over 150 million in US (1/2 of our population)
50% of our active users log on to Facebook
in any given day
Average user has 130 friends
People spend over 700 billion minutes per month on Facebook
There are over 900 million objects that people interact with (pages,
groups, events and community pages)
Average user is connected to 80 community pages, groups and
events

Average user creates 90 pieces of content each month
More than 30 billion pieces of content (web links, news stories,
blog posts, notes, photo albums, etc.) shared each month.
MYSPACE STATS
300 million accounts
110 million monthly active users
In the UK it is as common to have a MySpace page as it is a dog
14 Billion comments on the site
20 Billion mails on the site total
50 Million mails per day (more than Yahoo, Hotmail,
or Google)
10 Billion friend relationships
1.5 Billion images
8 Million images being uploaded per day
60,000 new videos being upload to MySpaceTV each day
More than 8 million artists and bands on MySpace Music
TWITTER STATS
 In a given week, users send a billion Tweets.
 Users are now sending 140 million Tweets, on average, per day
 The all-time high in terms of Tweets sent per day was 177
  million sent on March 11, 2011.
 In terms of Tweets per second, the all time high was 6,939
  Tweets per second after midnight in Japan on New Year’s
  Day.
 Twitter says that 572,000 accounts were created on March 12,
  2011, with 460,000 new accounts per day over the last month
  on average.
 Mobile users are up 182 percent over the past year.
 And Twitter currently has 400 employees, up from 8 in January
  2008.
THE STATS CONT’D

73% of American teens use social networking
 websites
47% of adults use them (up from 37% in Nov ‘08)
19% of internet users use Twitter, Facebook, or
 other service
BLOG STATS
 Every 1.5 seconds, someone creates a new blog
WHAT DOES ALL OF THIS MEAN?
 Social media activity is an extension of “electronically stored
  information” (ESI)
    Discovery rules apply

 For lawyers and paralegals, information contained in social media
  can be a gold mine!
WHAT DO THE RULES SAY?
 Preserve “relevant” or “potentially relevant” information is pending
  or reasonably anticipated as long as it is in your custody or control
 Trigger notice before complaint is filed, and make sure you
  include “any and all social media” in the notice.
WHAT HAPPENS IF YOU CAN PROVE
ENTRIES WERE DELETED?

 Micron Tech v. Rambus, 255 F.R.D. 135 (D. Del. 2009)
    Company was preparing litigation strategy
    They adopted document retention policy around same time and started deleting
     docs
    Judge said inappropriate, because they should have known the docs would have
     been relevant to the suit at some point in the future
    Result: Patents were not enforceable
WHAT HAPPENS IF YOU CAN PROVE
ENTRIES WERE DELETED?
 Recent study – 401 cases before 2010 where sanctions sought
    Sanctions in over ½ of the cases
    Some of the sanctions were very severe
        $5 mil in sanctions in 5 cases

        $1 mil in sanctions in 4 others
        Dismissals

        Adverse jury instructions
HOW DO WE GET THE INFORMATION?

 Most large corporations hire third parties to store their social
  media content.
    e.g. Citigroup hired CoTweet.

 Make sure retention letter is broad enough to cover third-party
 Get the third-party’s name in interrogatories or deposition
    If you don’t get docs from party in suit, subpoena third party
REALITY CHECK
 Most companies are not prepared to capture social media
    Once you know litigation is imminent, start saving information
        Depending on content of social media, this may be difficult
WITNESSES/PARTIES

 Attorneys and paralegals should advise clients and witnesses not
  to post updates regarding ongoing litigation
 They may “think” it is private, but it is not
 Always have them think before posting
    “If a juror saw this, what would they say?”
LITIGATION AND DISCOVERY
IMPLICATIONS
 Use social networking sites to your advantage in litigation
    Excellent tool for gathering information on the witnesses, clients, parties, etc.
        Make sure you are complying with privacy laws
        Ensure that your access is in compliance with the social networking sites privacy
          statement
        Be ready to explain how you got access to the account

    Excellent tool for informing the public about your company – don’t post case
      specific information
DISCOVERY IMPLICATIONS
Other issues to consider:
 May make discovery of corporate processes and
  products much easier
   Think about what you are putting out there carefully
   Implement policies to insure employees to not make
    inappropriate postings disclosing corporate structure,
    governance, other proprietary information, and/or trade
    secrets.
 Don’t violate attorney client communication privilege or
 work product doctrine
   Again, think carefully about what you put out there
 Be sure your firm’s advertising on any social media
 site complies with all statutory and regulatory
 guidelines
LITIGATION AND DISCOVERY
IMPLICATIONS

Use the social networking site to learn more
 about witnesses to the claim or witnesses in
 litigation
ZIMMERMAN V. WEIS MARKETS,
            INC.
   CV-09-1535, 2011 WL 2065410, *1 (PA. COM. PL. MAY 19, 2011)
 trial court ordered a former forklift operator to make available his
  social media information from his MySpace and Facebook
  accounts to his former employer.
    All logins and passwords were required to be given to defense counsel.

 Plaintiff was claiming serious and permanent health problems
  and diminution in enjoying life's pleasures, his employer found
  public postings about Zimmerman enjoying motorcycle riding and
  bike stunts.
 Court concluded the employer's right to discover relevant
  information about Zimmerman on the non-public portions of his
  Facebook and MySpace pages outweighed any of Zimmerman's
  alleged privacy interests. It stated: "Zimmerman placed
  hisphysical condition in issue, and Weis Markets is entitled to
  discovery thereon.“
 “Regardless of privacy settings,”….Facebook and MySpace do
  not guarantee complete privacy.”
MCMILLEN V. HUMMINGBIRD SPEEDWAY,
                   INC.,
 NO. 113-2010 CD, 2010 PA. D.&C., LEXIS 270 (PA. COM. PL. SEPTEMBER 9, 2010)

 The 2010 McMillen decision, the seminal Pennsylvania case,
    addressed three key principals:
   First, under Pennsylvania law, there is no privilege for information
    posted in the non-public sections of social websites.
   Second, the postings on social media sites, such as Facebook and
    MySpace, cannot be considered confidential because:
       (a) their purpose is to disseminate information in an open, public
        way that is easily shared with and by others and
       (b) their use terms make clear that information shared on the sites
        is not private and may be disclosed.
   Third, liberal discovery is generally allowable, and the pursuit of the
    truth related to the alleged claims is paramount to discovery.
   McMillen court ordered McMillen to provide the name of his social
    network computer site(s), his user name(s), his login name(s), and his
    password(s).
GAINING ACCESS
 Google or Yahoo search


 It’s free, so just create your own account


 Privacy Settings
DISCOVERY TIPS
 Google, Yahoo, or Bing search for public information posted by
  the other party or a key witness.
    Set up a Google alert when new internet postings appear that include specific
     keywords
 Consider commercial sites like publicdata.com
DISCOVERY TIPS
 Courts don’t allow fishing expeditions, so:
    Customize/tailor discovery requests for online postings, status updates, blog
      entries, photos, or videos to fit the facts of each case.
    Customize/tailor deposition questions about online activity, changing privacy
      settings, and deleting online material
    Facebook has a feature that allows you to download your information to a zip
      file.
DISCOVERY TIPS
 Linkedin and Plaxo
    Less sexy information, but can contain useful information
    Great places to learn more about opposing experts or potential damaging
     facts about your own
DISCOVERY TIPS
 Employment Cases
   Look for their work history and experience
   Can use plaintiff’s misrepresentations and omissions to attack the plaintiff’s
     credibility
   On the flip side, you can use peer recommendations to bolster plaintiff’s
     arguments
EMPLOYMENT LAW
CONSIDERATIONS
 Generally, an at-will employee can be fired for
  their post on a social networking site or blog
 Need to check others laws carefully
   Breach of privacy to view the blog
   Are there any laws or personnel policies protecting off-
    duty employees
 If employer disciplines, need to do so consistently
   Can’t treat females and males differently
EMPLOYMENT LAW CONT’D
 If an employer searches for a candidate on a social networking
  site, anti-discrimination laws apply
    Can’t make a decision based on the applicant’s race, gender, age, or disability
CONSIDER ETHICS
 Likely should not friend someone or direct someone else to in
  order to obtain information
    Arguably using deceit or misrepresentation and may violate a lawyer’s ethics
ETHICS CONSIDERATIONS
Make sure you aren’t posing as someone else
 (Texas HB 2003 makes it a crime (third-degree
 felony) to use the name or persona of another
 person to create a Web page or to post
 messages on a commercial social networking
 site without obtaining the other person's
 consent and with the intent to harm, defraud,
 intimidate or threaten anyone. Went into effect
 on 9.1.09.) Excellent tool when someone is
 posting negative comments.
ETHICS CONSIDERATIONS
 Texas Rules of Professional Conduct require that we are truthful
  in our statements to others
LITIGATION AND DISCOVERY
IMPLICATIONS
 Be cautious of your content, because you don’t want to have a
  social networking site be the gateway to your client’s confidential
  and privileged documents
DISCOVERY LIMITATIONS

Subpoenaing Facebook Information/Docs
   They will put up a fight
   Federal Electronics Communication Privacy Act (18
    U.S.C. Section 2701) prohibits the company from
    handing over any info about its 350 million users
    without a subpoena, unless the user gives consent
   In 2009, FB fought off the State of Virginia who was
    trying to obtain information to settle a work comp
    claim
DISCOVERY LIMIT’S CONT’D
 Terms of service policies that govern how long they keep the
  communications.
    Ex: AOL – emails deleted in approx. 2 days
    MySpace – will not respond to a subpoena unless it is from a law enforcement
     agency
 Notifications from Facebook to an email account are probably not
  protected and are discoverable
GETTING CONSENT
 If you can get consent, you are golden. There are several
  websites that collect tweet stats, for example:
USE AT TRIAL
Federal Rules amended
   Notice to Preserve as soon as suit filed
Texas Rules
   Rule 196.4 of the Texas Rules of Civil Procedure
    addresses the production of electronic or magnetic
    data.
      In Re Rodney Reed, 2009 WL 97260
      Munoz v. State, 2009 WL 695462 (Tex. App. — Corpus
       Christi 2009)
      Williford v. State, 127 S.W.3d 309 (Tex. App. – Eastland
       2004)
AUTHENTICATION AND
                                   ADMISSIBILITY

 U.S. v. Sidiqui, 235 F.3d 1318 (11th Cir. 2000).
    Emails were entered into evidence over hearsay and improper authenitication
      objections
 United States v. Brand 2005 WL 77055 (S.D.N.Y. January 12,
  2005).
    AOL Chat transcript admitted, because it was similar to the charged conduct
AUTHENTICATION AND ADMISSIBILITY


 Hammontree v. State, 2007 WL 547763 (Ga.Ct.App. 2007)
    Where victim confirmed she was an actual participant in the IM conversation
      and confirmed its content, transcript properly authenticated.
 U.S. v. Burt, 495 F.3d 733 (7th Cir. 2007).
    Logs of Yahoo chat were admissible when properly authenticated
AUTHENTICATION AND ADMISSIBILITY
 Lorraine v. Market American Insurance Company, 241 F.R.D. 534
  (D.Md. 2007)
    Comprehensive discussion of how to properly authenticate digital evidence such as
     digital photos, email, and text messages.
 People v. Hawkins 98 Cal. App. 4th 1428 (June 2002)
    Discusses California Evidence Code Section 1552
        Not whether made in regular course of business, but whether the computer was operating
          property at the time of the printout.
AUTHENTICATION AND ADMISSIBILITY

 People v. Von Gunten, 2002 WL 501612 (Cal.App. 3d Dist. 2002)
    When screen name used, must be direct proof connecting victim’s companion to
     the screen name on the e-mail messages
 EEOC v. E.I. dupont de Nemours & Co., 2004 WL 2347559
    Printout from Census Bureau web site containing domain address and date was
     admissible
AUTHENTICATION AND ADMISSIBILITY


  Telewizja Polska USA, Inc. v. Echostar Satellite Corp. (2004 WL
   2367740 (N.D. Ill. 2004) [not reported]
     Archived versions of web site content, stored and available at a third party
       web site, were admissible
At the end of the day social networking can be a
      gold mine or a smoking gun for lawyers,
     paralegals, jurors, witnesses, judges, and
   private investigators. Just like anything else
    you do, you need to make smart, informed
   decisions when participating in and/or using
            the social networking world.
QUESTIONS AND COMMENTS
THE END

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Social Networking and E-discovery

  • 1. SOCIAL NETWORKING AND E-DISCOVERY Mary Ellen King meking@kinglitigationgroup.com www.kinglitigationgroup.com 512.322.5730
  • 2. “Social networking is in its infancy and I’m guessing it will become as widespread as email,” According to Google’s former managing director for South Asia, Richard Kimber
  • 3. SO WHAT DOES THAT MEAN FOR US, AND WHAT SHOULD WE BE THINKING ABOUT?  The evolution of email is extraordinary.  At the advent of email, it was seen as impersonal and taboo  Today, most clients are using email  Most courts are 100% electronic as well  In the litigation, email is one of the main forms of communication, as snail mail communication as gone the way of the horse and buggy  Today, social networking is still seen by many as taboo and impersonal, but what if it becomes as widespread as email????
  • 4. CONSIDERATIONS  Facebook, MySpace, Twitter – Is there a place for internet chat rooms and social networking pages in the legal industry?  What are the risks?  Are notifications to company hosted chat rooms and social networking pages official notice of claims/DTPA demands/etc.?  Discovery implications
  • 5. THE STATS – HOW COMPANIES ARE DOING BUSINESS TODAY  65% of Fortune Global 100 companies have active Twitter Accounts  54% have Facebook fan pages  1/3 of these companies have blogs
  • 6. FACEBOOK STATS More than 750 million active users over 150 million in US (1/2 of our population) 50% of our active users log on to Facebook in any given day Average user has 130 friends People spend over 700 billion minutes per month on Facebook There are over 900 million objects that people interact with (pages, groups, events and community pages) Average user is connected to 80 community pages, groups and events Average user creates 90 pieces of content each month More than 30 billion pieces of content (web links, news stories, blog posts, notes, photo albums, etc.) shared each month.
  • 7. MYSPACE STATS 300 million accounts 110 million monthly active users In the UK it is as common to have a MySpace page as it is a dog 14 Billion comments on the site 20 Billion mails on the site total 50 Million mails per day (more than Yahoo, Hotmail, or Google) 10 Billion friend relationships 1.5 Billion images 8 Million images being uploaded per day 60,000 new videos being upload to MySpaceTV each day More than 8 million artists and bands on MySpace Music
  • 8. TWITTER STATS  In a given week, users send a billion Tweets.  Users are now sending 140 million Tweets, on average, per day  The all-time high in terms of Tweets sent per day was 177 million sent on March 11, 2011.  In terms of Tweets per second, the all time high was 6,939 Tweets per second after midnight in Japan on New Year’s Day.  Twitter says that 572,000 accounts were created on March 12, 2011, with 460,000 new accounts per day over the last month on average.  Mobile users are up 182 percent over the past year.  And Twitter currently has 400 employees, up from 8 in January 2008.
  • 9. THE STATS CONT’D 73% of American teens use social networking websites 47% of adults use them (up from 37% in Nov ‘08) 19% of internet users use Twitter, Facebook, or other service
  • 10. BLOG STATS  Every 1.5 seconds, someone creates a new blog
  • 11. WHAT DOES ALL OF THIS MEAN?  Social media activity is an extension of “electronically stored information” (ESI)  Discovery rules apply  For lawyers and paralegals, information contained in social media can be a gold mine!
  • 12. WHAT DO THE RULES SAY?  Preserve “relevant” or “potentially relevant” information is pending or reasonably anticipated as long as it is in your custody or control  Trigger notice before complaint is filed, and make sure you include “any and all social media” in the notice.
  • 13. WHAT HAPPENS IF YOU CAN PROVE ENTRIES WERE DELETED?  Micron Tech v. Rambus, 255 F.R.D. 135 (D. Del. 2009)  Company was preparing litigation strategy  They adopted document retention policy around same time and started deleting docs  Judge said inappropriate, because they should have known the docs would have been relevant to the suit at some point in the future  Result: Patents were not enforceable
  • 14. WHAT HAPPENS IF YOU CAN PROVE ENTRIES WERE DELETED?  Recent study – 401 cases before 2010 where sanctions sought  Sanctions in over ½ of the cases  Some of the sanctions were very severe  $5 mil in sanctions in 5 cases  $1 mil in sanctions in 4 others  Dismissals  Adverse jury instructions
  • 15. HOW DO WE GET THE INFORMATION?  Most large corporations hire third parties to store their social media content.  e.g. Citigroup hired CoTweet.  Make sure retention letter is broad enough to cover third-party  Get the third-party’s name in interrogatories or deposition  If you don’t get docs from party in suit, subpoena third party
  • 16. REALITY CHECK  Most companies are not prepared to capture social media  Once you know litigation is imminent, start saving information  Depending on content of social media, this may be difficult
  • 17. WITNESSES/PARTIES  Attorneys and paralegals should advise clients and witnesses not to post updates regarding ongoing litigation  They may “think” it is private, but it is not  Always have them think before posting  “If a juror saw this, what would they say?”
  • 18. LITIGATION AND DISCOVERY IMPLICATIONS  Use social networking sites to your advantage in litigation  Excellent tool for gathering information on the witnesses, clients, parties, etc.  Make sure you are complying with privacy laws  Ensure that your access is in compliance with the social networking sites privacy statement  Be ready to explain how you got access to the account  Excellent tool for informing the public about your company – don’t post case specific information
  • 19. DISCOVERY IMPLICATIONS Other issues to consider:  May make discovery of corporate processes and products much easier  Think about what you are putting out there carefully  Implement policies to insure employees to not make inappropriate postings disclosing corporate structure, governance, other proprietary information, and/or trade secrets.  Don’t violate attorney client communication privilege or work product doctrine  Again, think carefully about what you put out there  Be sure your firm’s advertising on any social media site complies with all statutory and regulatory guidelines
  • 20. LITIGATION AND DISCOVERY IMPLICATIONS Use the social networking site to learn more about witnesses to the claim or witnesses in litigation
  • 21. ZIMMERMAN V. WEIS MARKETS, INC. CV-09-1535, 2011 WL 2065410, *1 (PA. COM. PL. MAY 19, 2011)  trial court ordered a former forklift operator to make available his social media information from his MySpace and Facebook accounts to his former employer.  All logins and passwords were required to be given to defense counsel.  Plaintiff was claiming serious and permanent health problems and diminution in enjoying life's pleasures, his employer found public postings about Zimmerman enjoying motorcycle riding and bike stunts.  Court concluded the employer's right to discover relevant information about Zimmerman on the non-public portions of his Facebook and MySpace pages outweighed any of Zimmerman's alleged privacy interests. It stated: "Zimmerman placed hisphysical condition in issue, and Weis Markets is entitled to discovery thereon.“  “Regardless of privacy settings,”….Facebook and MySpace do not guarantee complete privacy.”
  • 22. MCMILLEN V. HUMMINGBIRD SPEEDWAY, INC., NO. 113-2010 CD, 2010 PA. D.&C., LEXIS 270 (PA. COM. PL. SEPTEMBER 9, 2010)  The 2010 McMillen decision, the seminal Pennsylvania case, addressed three key principals:  First, under Pennsylvania law, there is no privilege for information posted in the non-public sections of social websites.  Second, the postings on social media sites, such as Facebook and MySpace, cannot be considered confidential because:  (a) their purpose is to disseminate information in an open, public way that is easily shared with and by others and  (b) their use terms make clear that information shared on the sites is not private and may be disclosed.  Third, liberal discovery is generally allowable, and the pursuit of the truth related to the alleged claims is paramount to discovery.  McMillen court ordered McMillen to provide the name of his social network computer site(s), his user name(s), his login name(s), and his password(s).
  • 23. GAINING ACCESS  Google or Yahoo search  It’s free, so just create your own account  Privacy Settings
  • 24. DISCOVERY TIPS  Google, Yahoo, or Bing search for public information posted by the other party or a key witness.  Set up a Google alert when new internet postings appear that include specific keywords  Consider commercial sites like publicdata.com
  • 25. DISCOVERY TIPS  Courts don’t allow fishing expeditions, so:  Customize/tailor discovery requests for online postings, status updates, blog entries, photos, or videos to fit the facts of each case.  Customize/tailor deposition questions about online activity, changing privacy settings, and deleting online material  Facebook has a feature that allows you to download your information to a zip file.
  • 26. DISCOVERY TIPS  Linkedin and Plaxo  Less sexy information, but can contain useful information  Great places to learn more about opposing experts or potential damaging facts about your own
  • 27. DISCOVERY TIPS  Employment Cases  Look for their work history and experience  Can use plaintiff’s misrepresentations and omissions to attack the plaintiff’s credibility  On the flip side, you can use peer recommendations to bolster plaintiff’s arguments
  • 28. EMPLOYMENT LAW CONSIDERATIONS  Generally, an at-will employee can be fired for their post on a social networking site or blog  Need to check others laws carefully  Breach of privacy to view the blog  Are there any laws or personnel policies protecting off- duty employees  If employer disciplines, need to do so consistently  Can’t treat females and males differently
  • 29. EMPLOYMENT LAW CONT’D  If an employer searches for a candidate on a social networking site, anti-discrimination laws apply  Can’t make a decision based on the applicant’s race, gender, age, or disability
  • 30. CONSIDER ETHICS  Likely should not friend someone or direct someone else to in order to obtain information  Arguably using deceit or misrepresentation and may violate a lawyer’s ethics
  • 31. ETHICS CONSIDERATIONS Make sure you aren’t posing as someone else (Texas HB 2003 makes it a crime (third-degree felony) to use the name or persona of another person to create a Web page or to post messages on a commercial social networking site without obtaining the other person's consent and with the intent to harm, defraud, intimidate or threaten anyone. Went into effect on 9.1.09.) Excellent tool when someone is posting negative comments.
  • 32. ETHICS CONSIDERATIONS  Texas Rules of Professional Conduct require that we are truthful in our statements to others
  • 33. LITIGATION AND DISCOVERY IMPLICATIONS  Be cautious of your content, because you don’t want to have a social networking site be the gateway to your client’s confidential and privileged documents
  • 34. DISCOVERY LIMITATIONS Subpoenaing Facebook Information/Docs  They will put up a fight  Federal Electronics Communication Privacy Act (18 U.S.C. Section 2701) prohibits the company from handing over any info about its 350 million users without a subpoena, unless the user gives consent  In 2009, FB fought off the State of Virginia who was trying to obtain information to settle a work comp claim
  • 35. DISCOVERY LIMIT’S CONT’D  Terms of service policies that govern how long they keep the communications.  Ex: AOL – emails deleted in approx. 2 days  MySpace – will not respond to a subpoena unless it is from a law enforcement agency  Notifications from Facebook to an email account are probably not protected and are discoverable
  • 36. GETTING CONSENT  If you can get consent, you are golden. There are several websites that collect tweet stats, for example:
  • 37. USE AT TRIAL Federal Rules amended  Notice to Preserve as soon as suit filed Texas Rules  Rule 196.4 of the Texas Rules of Civil Procedure addresses the production of electronic or magnetic data.  In Re Rodney Reed, 2009 WL 97260  Munoz v. State, 2009 WL 695462 (Tex. App. — Corpus Christi 2009)  Williford v. State, 127 S.W.3d 309 (Tex. App. – Eastland 2004)
  • 38. AUTHENTICATION AND ADMISSIBILITY  U.S. v. Sidiqui, 235 F.3d 1318 (11th Cir. 2000).  Emails were entered into evidence over hearsay and improper authenitication objections  United States v. Brand 2005 WL 77055 (S.D.N.Y. January 12, 2005).  AOL Chat transcript admitted, because it was similar to the charged conduct
  • 39. AUTHENTICATION AND ADMISSIBILITY  Hammontree v. State, 2007 WL 547763 (Ga.Ct.App. 2007)  Where victim confirmed she was an actual participant in the IM conversation and confirmed its content, transcript properly authenticated.  U.S. v. Burt, 495 F.3d 733 (7th Cir. 2007).  Logs of Yahoo chat were admissible when properly authenticated
  • 40. AUTHENTICATION AND ADMISSIBILITY  Lorraine v. Market American Insurance Company, 241 F.R.D. 534 (D.Md. 2007)  Comprehensive discussion of how to properly authenticate digital evidence such as digital photos, email, and text messages.  People v. Hawkins 98 Cal. App. 4th 1428 (June 2002)  Discusses California Evidence Code Section 1552  Not whether made in regular course of business, but whether the computer was operating property at the time of the printout.
  • 41. AUTHENTICATION AND ADMISSIBILITY  People v. Von Gunten, 2002 WL 501612 (Cal.App. 3d Dist. 2002)  When screen name used, must be direct proof connecting victim’s companion to the screen name on the e-mail messages  EEOC v. E.I. dupont de Nemours & Co., 2004 WL 2347559  Printout from Census Bureau web site containing domain address and date was admissible
  • 42. AUTHENTICATION AND ADMISSIBILITY  Telewizja Polska USA, Inc. v. Echostar Satellite Corp. (2004 WL 2367740 (N.D. Ill. 2004) [not reported]  Archived versions of web site content, stored and available at a third party web site, were admissible
  • 43. At the end of the day social networking can be a gold mine or a smoking gun for lawyers, paralegals, jurors, witnesses, judges, and private investigators. Just like anything else you do, you need to make smart, informed decisions when participating in and/or using the social networking world.