3d Cir. on authenticating social media exhibits

I don't usually cover criminal cases here, but this one deals with an interesting evidence issue. In U.S. v. Browne, the Third Circuit addressed authentication of social media evidence (the facts involve a scumbag who solicited sexually explicit photos from 12-18-year olds and then threatened to publish them if the kids didn't perform sex acts).

Not official use.

The analysis is surprisingly convoluted. The gist of it is that Facebook chat logs were not "self-authenticating." However, the government also provided "extrinsic evidence," such as the defendant identifying himself in the chat logs, telling the kids to call him on a phone number that matched his phone number, the kids testifying that they participated in the conversations, they met the defendant in person (and ID'd him) based on the chat messages, the defendant admitted that he used the account in question, and more.

[T]he Government not only provided ample evidence linking Browne to the Button Facebook account but also supported the accuracy of the chat logs by obtaining them directly from Facebook and introducing a certificate attesting to their maintenance by the company’s automated systems.

The opinion provides a good read for anyone looking to introduce social media into evidence.

Text Message, Email, and Social Media Authentication

Good news! You found some text messages that really help your case. Now, how do you authenticate them? Authentication is a prerequisite for admissibility of evidence - so like Ron Burgundy, it's kind of a big deal.

Earlier this month, the Superior Court of Pennsylvania addressed the authentication of text messages in a criminal case, Com. v. Koch, 2011 WL 4336634 (Sept. 16, 2011). As a matter of first impression, the Court held that text messages on the defendant's cell phone were not properly authenticated. Specifically, per the Westlaw Headnote:

Police detective's description of how he transcribed drug-related text messages from defendant's cellular phone, together with his representation that the transcription was an accurate reproduction of text messages on the phone, was insufficient to authenticate the identity of the author as defendant . . . [A]lthough the phone was found on the table in close proximity to defendant, Commonwealth conceded that defendant did not author all of the text messages on her phone, no testimony was presented from persons who sent or received the text messages, there were no contextual clues in the drug-related text messages themselves tending to reveal the identity of the sender.

You mean those awesome text messages aren't coming in? Yup.

Oh, and those awesome emails you have? Well, you might want to take steps to make sure you can authenticate those as well. The Court specifically noted in its analysis:

[T]he difficulty that frequently arises in e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.

I don't think I'm making too much of a leap here to suggest that authentication of social media may require more than just, "it came from your account" too. Ahh, applying age-old evidentiary rules in new ways... isn't this fun?

HT: My colleague Jon Stepanian (@jbstepanian) emailed me this Legal Intelligencer article on the case. Jon authors a health law and policy blog, Defense of Medicine.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Heard any Good Jokes Lately?

Every new judicial opinion is a new adventure; you never know what you're going to read. Earlier this month, the federal court for the Eastern District of Pennsylvania issued an opinion containing the following:

For instance, Mr. Marchand’s alleged comment about going "down deep into the chocolate [dessert] with your berry" presumably could be likened to . . . a photograph of an elderly man wearing only a Santa hat and boots, resting on his stomach, with the caption, "Just Roll Me Over Darlin . . . ‘cause I’m Layin On Yer Present."

WHAT!? Perhaps a little context will explain this quote from Seybert v. International Group Inc. (October 13, 2009).

Susan Seybert is the Plaintiff in a sexual harassment suit against her employer, IGI. She claims her supervisor, Brett Marchand (yes, the aforementioned "Mr. Marchand") subjected her to harassment (yes, like the "berry" comment). It turns out Ms. Seybert had previously exchanged some saucy emails herself... like the rather disturbing Santa pic described above.

So what's the legal issue? Ms. Seybert filed a motion to exclude her emails from trial, arguing the emails are irrelevant and possibly barred by Federal Rule of Evidence 412 (which generally prohibits evidence of an alleged victim's sexual behavior or predisposition). The Court had to decide whether to exclude the emails from trial.

To bring a sexual harassment claim for a hostile work environment, the Plaintiff "must prove that she was subjectively offended." The emails could be relevant to whether she personally would be offended by the supervisor's crass comments. Even then, they may still be inadmissible under Rule 412. In short, the Court concludes:

"[The emails] do not bear on Mrs. Seybert’s own sexual history or personal sexual conduct, but only on the issue of whether she appreciates or is offended by possibly crass sexual humor in the workplace."

The Court then concludes that the emails are not "inadmissible at this time." The Court leaves open the possibility for subsequent objections to the emails at trial.

Though the Plaintiff's racy emails appear to be fair game in this sexual harassment case, the ruling is fairly narrow. For example, the Court differentiated this case from instances where the alleged harassment includes touching and advances. In those cases the emails are less likely to be admissible.

H/T The Legal Intelligencer - Dirty Jokes on Sex Harassment Plaintiff's Computer Ruled Fair Game.

LinkedIn is Under Attack!

The first attack I have on record came when Daniel Alexander, author of Outhouse General Counsel, posted The Do's and Don'ts of Online Employer-Employee Recommendations. Then the National Law Journal followed suit with Lawyers warn employers against giving glowing reviews on LinkedIn. Yesterday, Jon Hyman launched the latest salvo with Is LinkedIn a risk for employers?

When do we declare this an epidemic? More importantly, why are all of these lawyers attacking LinkedIn? Their logic is actually pretty sound: An employee's (read: plaintiff's) online recommendations from his/her manager can be viewed by the public (read: dastardly plaintiffs' attorneys) and it may conflict with the employee's official performance reviews (read: evidence of discrimination).

OK, I've done my employment-blawgitty duty and warned you about the evils of LinkedIn reviews from a lawyer's perspective. Now let me tell you what I think as a manager when I read a potential employee's online review from his/her current manager (Note: I was a project manager before I was an attorney):

• I don't know the person who wrote this, why should I trust her?
• If this employee's so great (or a "self-motivated proactive joy to work with" in flowery LinkedIn terms) then why is the manager recommending him to other employers?
• He must be awful and she's just trying to pawn her problem employee off on me!
• Or maybe she's recommending him so he sounds more attractive to potential customers... she's just making him sound great to drum up business!
• Nah, I know, she's just being nice or avoiding conflict by writing him a recommendation in response to his request.

Then somewhere way way WAY back in the back of my mind is, "hey, maybe all of this obnoxiously over-selling language is an honest assessment." Naaaah!

Look, I love LinkedIn... I'm on LinkedIn! I'm just saying I find recommendations from current managers nearly worthless and they do present potential evidence problems so be careful.