E-Discovery

One of the sharpest tools in the discovery drawer for deflating a puffed-up and seemingly impenetrable plaintiff is e-discovery. Traditionally, the spear of e-discovery has been aimed against corporate defendants, causing a trail of anguish to comply with the unwieldy demands created by the electronic format. But that tool can be equally effective for the defense. Depending upon age, geographic residence, and other factors, the likelihood is in your favor that the plaintiff has left an e-trail.

According to a 2009 Gallup report, internet usage among Americans has doubled over the last five years, and nearly half of all Americans are frequent internet users: “While the most educated, most affluent, and youngest Americans are those more likely to say they use the internet more than one hour per day, the less affluent, non-working, and unmarried are increasing their usage at noteworthy rates.”¹

The e-discovery plan begins with a simple search of the plaintiff’s name on Google. This initial search alone can produce some wonderful results. For instance, a Google search on the plaintiff in a pharmaceutical product liability action showed that the plaintiff was able to go boating, fishing, and energetically participate in many other activities that were in stark contradiction to his trial testimony. Another quick Google search showed that a plaintiff in a medical device action engaged in a public chat forum, where the plaintiff stated that his counsel did not believe in his case. With the proliferation of home videos and public airings, YouTube may also provide motion picture impeachment.

Discovery of Social Networking Websites

Another potentially fertile area is publicly available information from social networking websites. Social networking websites allow individuals to form online social communities. Within such sites, members communicate by public or private messaging, file-sharing, and/or discussion boards. The benefits of these sites are building relationships, information-sharing, education, grassroots advocacy, and expressing and sharing different forms of arts and entertainment.

Social networking websites attract a wide variety of individuals from different age groups and backgrounds, and different sites have different constituents. For instance, Facebook, the most popular social networking website,² began as a university site and has grown to 200 million active users around the world.³ MySpace attracts a young crowd, which according to one author, has made the site “a low-rent teenage hangout.”⁴ MySpace, however, has taken aggressive steps in 2009 to attract older folks in a battle for popularity against Facebook,⁵ while LinkedIn is specifically geared to professionals.

To participate in a social networking website, an individual fills out a profile with contact information, personal information such as gender and interests, and agrees to abide by the website’s terms of service and privacy policy. While each website has its own requirements, most of the popular sites require the user: (a) to provide accurate, current, and complete information as may be prompted by any registration forms on the site; (b) to maintain and promptly update registration data so as to keep the information accurate, current, and complete; and (c) to be fully responsible for all uses and actions taken on the user’s account. Accordingly, against a requirement of honesty and accuracy, publicly accessible user information may be relevant to a plaintiff’s bias, credibility, and even substantive issues depending on what information is listed.

Not many cases directly address third-party discovery from social networking sites. In Mackelprang v. Fidelity National Title Agency, Inc.,⁶ plaintiff sued defendants for sexual harassment, claiming that her superior sent her inappropriate and sexually explicit emails on her office computer on at least a weekly basis.⁷ After her husband became employed at the same company, plaintiff alleged that another supervisor coerced her into having sexual relations with him under a threat that if she did not do so, her husband would be fired.⁸ Plaintiff then engaged in unwanted sexual acts.⁹ After plaintiff complained to human resources, she was told the situation would be handled but if she brought it up again, she would be fired, and in her distressed state, plaintiff attempted suicide on two separate occasions.¹⁰

Defendants took affirmative investigative action after plaintiff filed the sexual harassment lawsuit. One of those steps included serving a subpoena on MySpace.com to produce information regarding two accounts maintained by the plaintiff.¹¹ MySpace.com produced the “public” information but refused to produce private email messages on either account absent a search warrant or letter of consent to production by the account holder.¹² The two MySpace accounts publicly showed that plaintiff identified herself as a single woman who didn’t want kids and alternately as a married woman with six children she loves.¹³

Defendants moved to compel plaintiff to consent to the production, arguing that plaintiff was using the private messaging functionality of MySpace to facilitate the same type of electronic and physical relationships she has described as harassment in her complaint.¹⁴ Defendants also argued that such evidence, if discovered in the private emails, was relevant to plaintiff’s claim for emotional damages.¹⁵ The court denied without prejudice defendant’s motion to compel. Consistent with other sexual harassment cases, the court drew the line by permitting discovery of the plaintiff’s work-related sexual conduct, but not permitting inquiry into plaintiff’s private sexual conduct.¹⁶ The court reasoned “what a person views as acceptable or welcomed sexual activity or solicitation in his or her private life, may not be acceptable or welcomed from a fellow employee or a supervisor.”¹⁷

However, the court found that any statements plaintiff may have made about her two suicide attempts or contemporaneous emotional distress claims on MySpace would be relevant to her claim for emotional distress.¹⁸ Also, the court allowed discovery on any online statements plaintiff made about her lawsuit and on the online accounts she maintained. The discoverable information included both the plaintiff’s own emails and her MySpace private messages.¹⁹ The court pointed out that the “proper method for obtaining such information” was to serve upon plaintiff” properly limited requests for production of relevant email communications” and threatened to sanction plaintiff if she engaged in wrongful and bad faith denial that the MySpace accounts belonged to her.²⁰ Discoverable information “d[id] not include private email messages between Plaintiff and third persons regarding allegedly sexually explicit or promiscuous emails not related to Plaintiff’s employment.”²¹

In sum, requesting e-discovery, including social networking communication, should be the standard part of any defendant’s discovery package on plaintiff, but care should be taken to craft the document request to the issues of the case.

Admissibility of E-Discovery

Even when you have obtained e-discovery to pierce an exaggerated claim, a bigger hurdle remains. How to get the e-discovery admitted into evidence? Chief Magistrate Grimm’s opinion in Lorraine v. Markel American Insurance Co.²² provides an excellent comprehensive “how-to” analysis under the Federal Rules of Evidence. He provides a simple checklist for getting e-mails and other electronic systems information (ESI) into evidence, either at trial or in summary judgment:

• Is the ESI relevant under Rule 401, meaning does the ESI tend to make some fact that is of consequence to the litigation more or less probable than it would otherwise be?
• Has the ESI been authenticated as required by Rule 901(a), meaning is the ESI what it purports to be?
• Is the ESI being offered for the truth of the matter asserted? If so, does the ESI fall within one of the exceptions to hearsay in Rules 803, 804, or 807?
• Is the form of the ESI that is being offered into evidence an original or duplicate under the original writing rule set forth in Rules 1002 and 1003? If not an original, is there admissible secondary evidence to prove the content of the ESI?
• Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403 such that it should be excluded despite all of the above?²³

The magistrate judge pointed out the ubiquitous nature of e-mails: “Although courts today have more or less resigned themselves to the fact that ‘[w]e live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world […] it was not very long ago that they took a contrary view — ‘[e]-mail is far less of systematic business activity than a monthly inventory printout.’”²⁴ The court observed that people now “tend to reveal more of themselves in emails […] than in other more deliberative forms of written communication. For that reason, e-mail evidence often figures prominently in cases where state of mind, motive, and intent must be proved.”²⁵

An email message may be authenticated directly or indirectly by “its ‘contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.’”²⁶ E-mails may even be self-authenticating if they contain labels or tags affixed in the ordinary course of business.²⁷ The most frequent means to authenticate email evidence is through a person with personal knowledge, expert testimony, or comparison with authenticated exemplar, distinctive characteristics including circumstantial evidence, trade inscriptions, and certified copies of business records.²⁸

The court also addressed internet website postings, text messages, and internet chat rooms.²⁹ Establishing authenticity for these types of electronic exchanges most likely requires a witness with personal knowledge, expert testimony, distinctive characteristics, public records, a system or process capable of producing reliable results, or an official publication.³⁰

Because the emails and other electronic system information at issue were not properly authenticated, Chief Magistrate Grimm denied the cross-motions for summary judgment.

Conclusion

E-discovery is becoming a routine part of defense discovery requests. Planning how to authenticate the information will be thechallenge.

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[1] See Morales, Lynmari. “Nearly Half of Americans Are Frequent Internet Users.” Gallup. 2 January 2009. Retrieved 10 June 2009. <http://www.gallup.com/poll/113638/Nearly-Half-Americans-Frequent-Internet-Users.aspx>.

[2] Bains, Lee. Switched. 27 January 2009. Retrieved 10 June 2009. “Facebook Overtakes MySpace as Most Popular Social Networking Site.” <http://www.switched.com/2009/01/27/facebook-overtakes-myspace-as-mostpopular-social-networking-sit>.

[3] See <http://en.wikipedia.org/wiki/Facebook>; Elliot Spagat, “Owen Van Natta, MySpace CEO: ‘There’s A Lot More That Can Be Done Around Innovation,’” 28 May 2009, Retreived 10 June 2009, <http://www.huffingtonpost.com/2009/05/28/owen-van-natta-myspace-ce_n_208526.html>; Caroline McCarthy, “Van Natta as My Space CEO: ‘Effectively Immediately,’” <http://news.cnetcom/8301-13577_3-10226941-36.html>.

[4] See MacMillan, Robert. “Reinventing MySpace: A New CEO is Just the Beginning.” 24 April 2009. Retrieved 10 June 2009. <http://www.reuters.com/article/ousiv/idUSTRE53N7DI20090424>.

[5] Feldon, Emily. “MySpace Courts Older Folks in Battle Against Facebook.” 4 June 2009. Retrieved 10 June 2009. <http://www.nbcnewyork.com/around_town/the_scene/Myspace-Courts-Older-Folks-In-Battle-Against-Facebook.html>.

[6] 2007 WL 119149 (D. Nev. Jan. 9, 2007).

[7] Id. at *1.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at *2.

[12] Id.

[13] Id. at *3.

[14] Id. at *3.

[15] Id.

[16] Id. at **3-6.

[17] Id. at 6.

[18] Id. at **7-8.

[19] Id.

[20] Id.

[21] Id. at *8.

[22] 241 F.R.D. 534 (D. Maryland 2007).

[23] Id. at 538.

[24] Id. at 554 (internal citations omitted).

[25] Id.

[26] Id. at 554 (quoting Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §900.07(3)(c), Joseph M. McLaughlin ed., Matthew Bender 2d ed. 1997).

[27] Id.

[28] Id. at 554-55.

[29] Id. at 555-57.

[30] Id.

Finis