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When Using New Media, Don’t Forget Old Rules
I was not someone who resisted Facebook; on the contrary, I joined as soon as it opened to the general public, eager to keep in touch with friends dispersed around the country. And, although I have resisted Twitter, never felt creative enough to have a MySpace page, and find FourSquare somewhat creepy, I recently joined Google+ upon the invitation of another attorney. I’m guessing that most of the attorneys reading this newsletter have joined at least one of these websites or other comparable social networking sites.
At any firm, the youngest members of the team are likely to be most familiar with the latest social media. While many of us use social networking effortlessly in our personal lives, effectively using social media in our professional lives requires careful consideration. In litigation in particular, social networking sites can be used in a variety of ways, including offensively—for background research on jurors, on clients, or on opposing parties; and defensively—to corroborate a client’s story or push back against an alternative theory by opposing counsel.
The idea of using social networking in litigation is not new, and is a topic that has been analyzed in many recent scholarly and professional articles. Court opinions have been slower to come, in part because it takes time for new issues to work their way through the legal system. From the existing opinions and articles, however, one theme emerges: although social networking websites may have been born yesterday (and, as I write, that is very nearly true of Google+), the old rules of evidence and ethics still apply.
One rule of evidence that practitioners may overlook when attempting to use social media evidence is Rule 5-901, which governs authentication in the Maryland courts. As with Federal Rule 901(a) on which it is based, Rule 5-901 requires the offeror of evidence to show that the evidence is what it purports to be by establishing some grounds for authentication. Under Rule 5-901, examples of acceptable methods of authentication are: (b)(1) testimony of a witness with knowledge; (b)(2) comparative evidence based on authenticated specimens; and (b)(4) circumstantial evidence, such as distinctive characteristics, that show the evidence to be what it is claimed. See Md. Rule 5-901(b)(1-9).
At the federal level, in an important opinion analyzing the interplay between the rules of evidence and burgeoning electronic media as evidence, Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 538 (2007), Chief Magistrate Judge Grimm applied the Federal Rules of Evidence to electronically stored information (“ESI”), noting that ESI is only admissible if it clears the “hurdles” imposed by the applicable evidence rules. Id. at 538. He noted that the inability to “get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation.” Id. at 542.
The U.S. District Court of Maryland and the Court of Appeals of Maryland have also ruled recently on counsels’ failure to properly authenticate social media evidence. In Williamson v. Prince George’s County, et al., slip copy, DKC 10-1100, 2011 WL 280961 (D. Md. Jan. 26, 2011), Chief Judge Chasanow reiterated the need for practitioners to apply the rules of evidence correctly to websites. In that case, the plaintiff offered “five printouts of internet webpages containing articles about alleged police abuses in Prince George’s County” in defense against a motion for summary judgment. Id. at *8. Judge Chasanow, referencing Judge Grimm’s Lorraine decision, held that “electronically stored information must be properly authenticated. . . . When evidence from the internet is presented without adornment—without any attempt at authentication or any explanation as to how the hearsay rules are satisfied—it is adequate for almost nothing.” Id. (citations omitted).
In Griffin v. State of Maryland, the Court of Appeals of Maryland spoke definitively about the need to authenticate social media evidence before it may be admitted. 419 Md. 343 (2011). In that case, defendant Antoine Griffin sought reversal of his convictions in the shooting death of a man, arguing that the trial judge abused his discretion when he admitted pages from Griffin’s girlfriend’s MySpace page without proper authentication. Id. The Court of Appeals reversed a decision of the Court of Special Appeals upholding the trial court’s conviction.
During Griffin’s criminal trial, the trial court allowed the State to introduce the MySpace profile of Jessica Barber, Griffin’s girlfriend, as well as a post on that profile that was apparently authored by Ms. Barber. The profile was named “Sistasouljah” and described a 23-year old female whose birthday was October 2, 1983. It also had a picture of a couple embracing. The posting that the State sought to admit said “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” Id. at 348.
Although Ms. Barber was called as a witness by the State, the State did not ask her about the MySpace profile at all. Instead, the State called (and the judge allowed) a police sergeant to testify in support of authentication of the redacted pages of the MySpace page and the “Free Boozy” posting. Id. at 350. He testified (through voir dire) that he knew that it was Ms. Barber’s MySpace page because of the photograph of her, the reference to “Boozy” (Mr. Griffin’s nickname), and her birth date on the form. Id.
The Court of Appeals was not convinced that the evidence offered by the State adequately satisfied the authentication rules. It was particularly concerned about the possibility of “user abuse” in social networking sites. Id. at 354. The Court commented that “[a]nyone can create a MySpace profile at no cost, as long as that person has an email address and claims to be over the age of fourteen . . . .” Id. at 351. “Anyone can create a fictitious account and masquerade under another person’s name or gain access to another’s account by obtaining the user’s username and password . . . .” Id.at 352. The Court of Appeals ultimately held that the trial court and the Court of Special Appeals gave “short shrift” to the concerns that someone other than Barber may have authored the profile and posted the “Free Boozy” message. Id. at 357 (discussing the Court of Special Appeals decision). It found that the trial court
abused its discretion in allowing the MySpace evidence pursuant to Rule 5-901(b)(4) because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient “distinctive characteristics” . . . to authenticate the printout, given the prospect that someone other than Ms. Barber could have not only created the site but also posted the “snitches get stitches” comment.
Id. at 357.
The Court stated that it “should not be heard to suggest that printouts from social networking sites should never be admitted.” Id. at 363. Rather, it suggested several methods by which a party could properly authenticate such evidence. Id. First, the party may ask the purported creator if he or she did in fact create the profile or add the post in question. Second, the Court said that the offering party may want to “search the computer of the person who allegedly created the profile and posting and examine the computer’s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.” Id. Lastly, the Court suggests that it may be possible to “obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.” Id.
The lesson from these cases is that social media evidence is not unlike other, more traditional, forms of evidence in its requirement for proper authentication. Judge Grimm noted that social media evidence presents unique concerns because “technology changes so rapidly” and it is “often new to many judges,” but practitioners should remember that all evidence to be offered must be authenticated. Lorraine, 241 F.R.D. at 544 (internal citation omitted). Just as a forensic expert may be called to authenticate a signature or handwriting to ensure it was not a forgery, today an expert who can dismantle and analyze a hard-drive may be needed to prove that a MySpace profile is the profile it purports to be.
As young attorneys, we are often more familiar with social networking sites than our more experienced colleagues, and we should also be aware of the ways we can use those sites in our practice of law. That said, we shouldn’t forget that the old rules still apply to new media.
Brooke Lierman is an associate with Brown, Goldstein & Levy, and can be reached at (410) 962-1030 or firstname.lastname@example.org.