Journal of American Law

SPRING 2015

The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.

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Spring 2015 // Journal of American Law 9 Rules of Evidence 901(a) states, "To satisfy the requirement of authenticating or identifying an item of evidence, the pro- ponent must produce evidence sufcient to support a fnding that the item is what the proponent claims it is." Te United States Court of Appeals concluded that the district court erred in admitting the Web page into evidence and overturned the verdict because the government presented insufcient evidence that the page was what the government claimed it to be. Te court stated that the fact that a page with Zhyltsou's name and photograph happened to exist on the Internet permits no reasonable conclusion that the page was created by the defendant or on his behalf. Furthermore, the special agent provided no extrinsic information showing that Zhyltsou was the page's author or otherwise tying the page to Zhyltsou. Te court concluded that, as with any piece of evi- dence whose authenticity is in question, the "type and quan- tum" of evidence necessary to authenticate a Web page will always depend on context. 27 Rule 901 requires that there must be some basis on which a reasonable jury could conclude that the page in question was not just any Internet page but, in fact, Zhyltsou's profle. No such showing was made, and the evidence should therefore have been excluded. Spoliation of Social media evidence Because of the transient nature of social media and the ability to delete or destroy evidence at the press of a button, spolia- tion of evidence involving social media cases is starting to get attention. Spoliation occurs when evidence is altered or de- stroyed or when a party fails to preserve property for another's use as evidence in litigation. "Once a party reasonably antic- ipates litigation, it must suspend its routine document reten- tion/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents." 28 A failure to do so can lead to a motion for spoliation sanctions involving the destruction of electronic evidence. Tis requires establish- ing (1) the party with control over the evidence had an obli- gation to preserve it and it was destroyed, (2) the records were destroyed with a culpable state of mind, and (3) the destroyed evidence was relevant to the moving party's claim or defense. Spoliation sanctions do not require bad faith but primar- ily focus on the prejudice shown to the other party. Some have stated that a party is presumed to have control over their so- cial networking accounts and relevant information on those sites is discoverable: "Since the plaintif controls when the litigation commences, as well as the nature and scope of the claims asserted, a plaintif 's attorney who does not take early and afrmative steps to preserve social media content risks spoliation sanctions." 29 In Gatto v. United Air Lines, 30 an employee of JetBlue fled 27 United States v. Sliker, 751 F.2d at 488 (2d Cir. 1984) 28 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) ("Zubulake IV"). 29 Craig B. Shafer & Ryan T. Shafer, Looking Past the Debate: Pro- posed Revisions to the Federal Rules of Civil Procedure, 7 Fed. Cts. L. 178, 204 (2013). 30 Gatto v. United Air Lines, 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar 25, 2013). a personal injury lawsuit claiming that he was permanently disabled and precluded from physical and social activities. Gatto refused to comply with discovery requests and deac- tivated his Facebook account. Te court awarded United an adverse inference instruction for failure to preserve a social media account and intentional destruction of evidence. In Lester v. Allied Concrete, 31 the court awarded a $722,000 sanction against the plaintif and his lawyer. Te spoliation oc- curred when the plaintif received a discovery request for the contents of his Facebook account and an attorney instructed a paralegal to tell the client to "clean up" his Facebook page because they didn't "want blowups of this stuf at trial." Conclusion Getting back to our trial moment, the lawyer wanting to dis- credit the key witness by using her Facebook postings was well prepared. Te printouts of the witness's Facebook pages were obtained by an investigator who was prepared to testify as to how they were obtained. Further, the witness unwittingly admitted in deposition that she authored the Facebook pag- es and posted the incriminating material. With this in hand, the judge overruled the lack of foundation and hearsay objec- tions, and the witness certainly will think twice about posting something on social media in the future. Te issues and cases surrounding the use of social media evidence are evolving. Tere has been discussion about up- dating state and federal statutes to refect the recent judicial decisions; however, if and when this is done, it will quickly become outdated as new technology just as quickly will leave them in the dust. Lawyers must think ahead and plan for the court's in- volvement when discovering and using evidence from social media. Developing and executing a social media evidence strategy requires a number of considerations. First, the de- mographics involving the likelihood that a person uses social media, which is ever widening to include even seniors as well as youths. Second, the use of preservation of evidence letters puts the other side on notice with perhaps unintended efects. Tird, the preparation and execution of a plan to obtain so- cial media evidence through investigation and discovery and the pushback from Internet service providers that likely will result. Finally, a risk/reward analysis that takes into account added costs and the likelihood of success. 31 Lester v. Allied Concrete, 2011 Va. Cir. Lexis 132.

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