Web 2.0: The Unwanted Friend Request of Litigation

The rising star of Web 2.0 has brought the dawn of social and professional networking sites such as Facebook, MySpace and LinkedIn.  These free services have grown in popularity so that it’s rare to find a person under the age of 35 who doesn’t have some type of personal Web page.  With the dawning of these networking groups has come the dawning of numerous lawsuits.

 

 The Indiana Supreme Court recently rendered an opinion on the intricacies of MySpace.  A 14-year-old student was adjudicated delinquent on what would have been criminal harassment charges had the student been an adult.  The student was charged because of statements she posted about her school principal in a MySpace private group and on a separate profile.[1]

 

 

 The Indiana Supreme Court undertook a detailed discussion of how MySpace operates, how only members of a group could see specific postings, and if a profile were set to “private,” only “Friends” could view it.  Additionally, the Court took issue that the State offered no witness to address how MySpace actually works. 

 

 The Indiana Supreme Court held that the State failed to prove that the student made the MySpace statements with the intent required for criminal harassment.  The Court’s analysis covered in great detail that a message posted on a personal profile or available only to a private group with only members having viewing rights did not prove the student’s intent to harass.  The student did not reasonably expect the principal to view any postings by either joining the private group or viewing her public profile. 

 

 The main thrust of the Indiana Supreme Court’s opinion was an understanding of how MySpace operates.  A party’s failure to understand how these social networking sites actually work can break their case. 

 

 The Supreme Court of Iowa also weighed in on a social networking case.  The case’s key issues centered on proving the elements of a criminal conspiracy as well as the conspiracy exception to the hearsay rule.  The hearsay at issue was party invitations sent from Facebook.[2]

 

  A group of college students were holding a house party, for which they posted an invitation on Facebook. The college students planned to charge admission and split the party profits.  The students bought beer and made JELL-O shots for the partygoers.   

             

 One attendee, a-20 year-old student who drank at the party, later killed another person on her drive home.  The college students who planned the party were charged with serving alcohol to persons under the legal drinking age.  The charge also stated that the party hosts knew that the invited partygoers would include people under the legal drinking age. 

 

 On discretionary review, the Iowa Supreme Court addressed the elements to criminal conspiracy and the conspiracy exception to the hearsay rule.  The Iowa Supreme Court held that the co-conspirator exception to the hearsay rule applied to agreement to do a lawful act in an unlawful manner; in this case, sending out party invitations on Facebook.

 

 State courts are actively facing cases involving social networking sites.  These cases will continue to grow in number, ranging from defamation, trade secret violations and everything else that fuels both criminal and civil litigation.  Lawyers can expect courts to require expert testimony on how social networking sites work.  Without this evidence and intimate knowledge of how the sites operate, parties might fail to prove their cases. 

 

 

 

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[1] A.B. v. State, 885 N.E.2d 1223 (Indiana, May 13, 2008 )

[2] State v. Tonelli, 2008 WL 2152529 (Iowa, May 23, 2008))

What would you ask a State Supreme Court Justice on e-Discovery?

I presented to 45 state judges and Supreme Court Justices at the Montana Judicial Conference on e-Discovery, admissibility and the impact of ESI in litigation.  It was a privilege to travel to Big Sky Country and meet judges facing electronic discovery challenges. 

 

Once I got over the awe created by the fact I was in a room full of judges, I paid very close attention to their questions and comments.  One judge asked if it would be possible for a personal injury attorney in an auto accident case to subpoena cell phone records to identify anyone who made any calls from a specific location at a given time.  This obviously raises privacy concerns and the question of whether a cell phone company could provide such information but is one creative way to identify possible accident witnesses. 

 

The judge’s answer depends on both technical and legal issues.  First, is that call history in a reasonably usable form?  Second, can it be retrieved without undue burden or cost?  Third, is it overbroad, intrusive and an invasion of privacy to ask for all cell phone calls from a specific location and time?  Forth, would this have a greater likelihood of success if the request were only for 911 calls? 

 

It is not often you find yourself in a position to ask a judge or a Supreme Court Justice about their thoughts on an issue.  I closed my presentation with the following ESI hypothetical.  Several judges have already covered these issues in great detail, granting and denying different discovery requests. 

 

Ask yourself: How would you rule the following? 

 

Hypothetical:  Record Company sues Doe defendants for copyright infringement through illegal music downloads.  IP Addresses shows Doe defendants used their college Internet accounts.  Which discovery requests are proper and why? 

• 3^rd-party subpoena to college for ISP history to specifically identify students
• 3^rd-party subpoena to MySpace and Facebook to identify all users who access their sites from the college ISP address
• Request a forensic image of all school and student hard drives
• Request a forensic image of all MP3 players, cell phones, BlackBerries and other portable media devices
• Request all instant messages pertaining to music downloads, maintaining any parent- child relationship with instant messages and music files

 The judges’ answers on how they would rule and more will be covered in my next blog posting.

Washington DC Best Practices Summit

CT Summation hosted its first Best Practices Summit in Washington, DC on May 20, 2008.  Attendees came from Washington, Baltimore, Toronto, Miami, Alabama and New York for this capacity-attendance summit. 

 

 

The CT Summation Best Practices Summit featured a keynote address by Michael Berman, Esq., of Rifkin, Livingston, Levitan & Silver, LLC.  Mr. Berman presented “The Information Explosion and ESI in Litigation,” covering recent case law and the challenges of information inflation.  Mr. Berman is a well-respected attorney who served for seven years as the Deputy Chief of Litigation at the Maryland Attorney General’s Office, where he handled a number of high-profile cases, and also practiced civil litigation as a partner in two Baltimore law firms.

 

The afternoon featured 6 breakout sessions, with technology topics such as, “Putting the Pieces Together: e-Discovery from Processing to Production,” “Techniques for Transferring Cases” and “Your Transcript Toolbox.”  These sessions provided valuable experience and insights in using CT Summation products in a more intimate set-up that facilitated Q&A. 

 

inData Corporation joined CT Summation for a mock deposition and trial entitled, “Running the Trial Preparation Gauntlet with Technology.”  This session focused on the life of several email messages and a voicemail, starting with a mock deposition of a defendant, followed by a meeting between an attorney and trial consultant for a strategy session, and finally a contentious discussion over admissibility, including a motion hearing to exclude ESI in the cross-examination of the defendant at trial. 

 

The CT Summation Best Practices Summit received excellent reviews from attendees. Don’t miss your chance to attend the next Summit being held in New York City on June 19, 2008. 

Tales from Two e-Discovery Experts: A Webinar with William Kellermann and Tom O’Connor

CT Summation hosted two educational webinars with e-Discovery experts William Kellermann of Wilson, Sonsini, Goodrich, & Rosati, PC and Tom O’Connor of the Gulf Coast Legal Technology.  Both graciously took time out of their day for two separate webinars in which they discussed the top e-Discovery issues facing the legal profession.  Readers can download a recording of the 9am webinar from http://ctsummation.acrobat.com/p27381265 and the 3pm webinar at http://ctsummation.acrobat.com/p83311586

 

Bil and Tom discussed e-Discovery case pitfalls, planning concerns, and a variety of ethical issues.  The webinar audience participated in a question and answer session that lasted for a full hour after the webinar, providing direct insight into current concerns of lawyers, paralegals, and litigation support professionals.   Several of the Q&A topics will be addressed in future blog postings. 

 

Thanks again to Tom O’Connor and William Kellermann for two excellent webinars. 

 

 

 

CT Summation Best Practices Summit- Washington, DC May 20, 2008

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 You’ll walk away with the best practices for managing and preparing your case critical information.

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If I Represented Victoria Lindsay

I recently posted on YouTube videos being used as exhibits that highlighting illegal conduct.[1] I regret having an example so quickly.

 

Eight teenagers were arrested for beating a teenage girl in Lakeland, Florida. The youth beat up the victim so they could make a YouTube video.

 

The assault included one of the female attackers striking the victim on the head several times and then slamming the victim’s head into a wall, rendering her unconscious. Three other teens forced the victim into a car and took her to another location.[2] Footage of the attack is available with most of the news articles covering the story.

 

This savage total abandonment of humanity was some sick lust to post something on YouTube.

 

I wish a painless and quick recovery to the victim. I wish the district attorney handling this case total success.

 

The civil lawsuit that will likely follow will not rival anything like Enron, the Southwest Airlines safety scandal, or the White House missing email cases when it comes to electronically stored information. It does have e-Discovery I would seek as a plaintiff attorney for the victim. Just because a case does not involve a multinational corporation does not mean small cases do not have e-Discovery.

 

If I were the district attorney or the plaintiff attorney, I would seek the following electronically stored information:

Cell Phone Text Messages: Teenagers communicate by text messages. There is a complex shorthand language that will require some translation, but these messages might show a conspiracy between the teenage attackers. This may require an expert to copy the cell phones or a third party subpoena to the cell phone company to acquire the text messages.

 

Cell Phone Photos or Video: It is difficult to find a cell phone that does not take photos or shoot video. Any exciting clips may show further evidence of guilt. A defense lawyer might find statements by co-defendants urging the attack to stop.

 

Instant messages: Third party experts might be required to copy instant message history from the defendants’ computer hard drives.

 

Blog postings: Teenagers communicate via posting on social networking sites such as MySpace. These sites allow users to post “tags” on their “friends” pages communicating plans, meetings, or other statements. I would have an expert copy each teenager’s webpage to seek each blog posting and tags for any evidence showing a plan to assault the victim.

 

YouTube Videos: I would have an investigator review every posting by any defendants on YouTube and copy potential party admissions. If these youth were planning to post an attack on YouTube, there might be video to show their plans.

 

The above are just a few ideas. Even though this isn’t a large case or a very complex one, it still contains e-discovery and attorneys should not forget that.

 

I hope the district attorney handling the case and the plaintiff attorney seek computer experts to gather any possible electronically stored information.

 

Go do justice.

 

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[1] http://ctsummationblog.wordpress.com/2008/03/05/the-youtube-cameras-that-create-instant-electronic-evidence/

[2] “8 Teens Charged in Videotaped Attack,” AP, April 8, 2008, lasted visited http://news.yahoo.com/s/ap/20080408/ap_on_re_us/teen_beating

 

Text and Instant Messages: From Authentication to Party Admissions

Anyone with a teenager has probably seen a grossly excessive phone bill from text messaging.  Young people use instant messaging (IM) for social use, even going to the point of ending relationships by IM.[1] Both forms of instant communication use the same language shorthand, such as “LOL” to convey “laughing out loud” or “SLAP” for “Sounds like a plan.”   

Text and instant messages are appearing in case law with increased speed.  These “instant communications” pose issues of authentication, best evidence rule concerns and usually communicate party admissions.   

In Lozano v. Texas, a criminal defendant challenged text messages admitted in his trial as hearsay.  The appellate quickly dealt with the appeal, holding that the text messages were his statements and thus party admissions.[2] In what highlighted the extent of the defendant’s poor judgment, “Exhibit A” to the opinion included all the text messages between the defendant and his victim over a four month period.   

In a murder trial, a Maryland court addressed text message authentication.  The defendant sent threatening text messages to the victim from his cell phone.  The Court held that the phone number and texts were direct evidence that messages were from Defendant, thus authentication was proper.[3]  

A Virginia court put an interesting spin on the best evidence rule and instant messages.  In a criminal case, the defendant admitted to his best friend that he was sorry in an instant message for assaulting her.  The victim testified to the content of the message, because she did not save or print the instant message.  The court found that the defendant’s statements were party admissions, the IM handle was identified as his, and thus the best evidence was the victim’s testimony.[4]  While it may have not been the court’s intent, the outcome was an instant message being treated as a spoken statement, due to the transitory nature of instant messages.   

Text and instant messaging will continue to grow as a regular means of communication.  Attorneys, parties, and the Courts will be facing these issues for a long time to come.  Case preparation will require search terms to include the “LOL” language.  Lawsuits will range from the mundane to extremely high profile.  Just ask Mayor Kwame Kilpatrick of Detroit. 

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[1] “Poll: IMs Help Teens Avoid Embarrassment,” Alan Fram and Trevor Tompson, Associated Press, November 15, 2007.

[2] Lozano v. Texas, Not Reported in S.W.3d, 2007 WL 4216349, 6 (Tex.App.-Fort Worth).

[3] Dickens v. State  175 Md.App. 231 (Md.App.,2007).

[4] Truman v Commonwealth, Not Reported in S.E.2d, 2007 WL 2765796, 4 (Va.App.) 

Vindicating Consumer Rights against Online Forum Selection Clauses

Businesses for decades have protected themselves from unlimited jurisdiction with forum selection clauses, a contractual provision that specifies the jurisdiction in the event of a dispute. Forum selection clauses give a company “contractual predictability,” thus have the potential to reduce the cost of doing business and theoretically passing savings onto consumers.[1]

Online businesses attempt to protect themselves against “world wide jurisdiction” with forum selection clauses. These online forum selection clauses walk a fine line between protecting legitimate business interests and subverting consumer rights.

The Washington Supreme Court recently struck down a forum selection clause in a dispute between consumers and their ISP. In Dix & Smith v. ICT Group, Inc., and AOL, two plaintiffs claimed secondary email accounts were activated via AOL’s pop-up ads. Both Plaintiffs damages only amounted to $100. The plaintiffs sought to bring a class action under the Washington Consumer Protection Act (CPA) for engaging in unfair and deceptive acts by creating unauthorized spin off accounts.[2] AOL sought removal to Virginia pursuant to the Forum Selection Clause in the user’s terms of service.[3]

It is well established that a forum selection clause is prima facie valid and is not a term that needs to be negotiated between parties.[4] A party challenging a forum selection clause has the burden of showing the clause is unreasonable. A party can show the clause unreasonableness if 1) it was induced by fraud or overreaching, (2) the forum is so unfair and inconvenient that it deprives the plaintiff of a remedy or of its day in court, or (3) enforcement would contravene a strong public policy of the State where the action is filed.[5]

The Washington Supreme Court denied enforcement of AOL’s forum selection clause. The Court held that a forum selection clause that seriously impairs a plaintiff’s ability to bring suit to enforce the CPA violates the state’s public policy, because of the importance of the private right of action under the Consumer Protection Act to vindicate the rights of the state’s citizens.[6] The Court stated, “…that a forum selection clause that seriously impairs the plaintiff’s ability to go forward on a claim of small value by eliminating class suits in circumstances where there is no feasible alternative for seeking relief violates public policy and is unenforceable.”

Courts will continue to grapple with the enforcement of online forum selection clauses.

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[1] Dix & Smith v. ICT Group, Inc., and AOL, 161 P.3d 1016, 1020 (Wash., 2007)

[2] Dix, 1019

[3] AOL’s Forum Selection Clause:You expressly agree that exclusive jurisdiction for any claim or dispute with AOL or relating in any way to your membership or your use of the AOL Services resides in the courts of Virginia and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of Virginia in connection with any such dispute including any claim involving AOL or AOL Services. The foregoing provision may not apply to you depending on the laws of your jurisdiction. Dix, 1018.

[4] Dix, 1020, citing Kysar v. Lambert, 76 Wash.App. 470, 484-85, (1995); see The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, (1972); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589-95, (1991).

[5] Dix, 1020, citing Gilman v. Wheat, First Sec., Inc., 345 Md. 361, 378, (1997).

[6] Dix, 1022.

Service of Process…by Email?

The Internet allows anyone to anonymously post information on the Net. Websites often have no contact information besides a generic email address.  The anonymity of some websites and the inability of any meaningful way to find the individuals running them makes service of process a significant challenge.   

A recent case demonstrates this problem and the solution: Service of Process by email.[1]  These situations generally occur with parties outside of the United States, varying from a divorce action where a husband moved to Saudi Arabia, to someone within the US who was unable to be located, to a website with a PO Box for an address with an agent who refused service of process.[2]   

The continued growth of bloggers, commentators, or fly-by-night online businesses highlights the issue of who to serve in a dispute.  In a case that will be known mostly for prior restraint on the First Amendment, Bank Julius Baer & Co. Ltd., v. Wikileaks is prime evidence of when service of process by email is necessary.  In Wikileaks, the plaintiff served a summons, complaint, and a TRO on WikiLeaks’ listed PO Box and to their counsel.  Counsel for WikiLeaks refused service.[3]     

The Court found alternative service of process was necessary because the physical addresses for the defendants could not be found and that the defendants’ agent refused service.  The defendants’ email addresses would meet the requirements for the defendants to receive notice and an opportunity to be heard.  The Court went on to order the defendants to be emailed by 3:00pm the day of the court order.[4]   

Things like this will keep happening.  Situations where “banks” disappear in Second Life and other online fraud may leave victims with only an email address to locate a wrongdoer.[5]    In such instances, one can argue case law allows for alternative service of process when the “usual methods of service prove impracticable, service that is ‘reasonably calculated, under all the circumstances, to apprise [the] interested part[y] of the pendency of the action’ will suffice.”[6]   

The fact online wrongdoers can attempt to hide themselves with anonymous domain “who-is” listings will make finding them for service of process all the more difficult.  In such situations, service of process by email may allow plaintiffs to seek justice instead of cyber-tortfeasors hiding behind technology.     

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[1] Bank Julis Baer & Co. Ltd., v. WIKILEAKS, et al., Slip Copy, 2008 WL 413737 (N.D.Cal.)

[2] Hollow v. Hollow, 193 Misc.2d 691 (NY.Sup.2002); DR.I., Inc., v. Dennis, Not Reported in F.Supp.2d, 2004 WL 1237511 (S.D.N.Y.); Bank Julis Baer & Co. Ltd., v. WIKILEAKS, et al., Slip Copy, 2008 WL 413737 (N.D.Cal.).

[3] WikiLeaks, 1. 

[4] WikiLeaks, 2.

[5] See Blog Entry, “Virtual Litigation in the Real World,” http://ctsummationblog.wordpress.com/2008/02/13/virtual-litigation-in-the-real-world/

[6] DRI., 1, citing Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950)

The YouTube Cameras that Create Instant Electronic Evidence

New video cameras on the market take YouTube ready video.[1]  It is a matter of time before it is commonplace for these cameras to immediately upload footage via embedded wireless to YouTube.  For many plaintiff attorneys and district attorneys, this is a dream come true:  People have the tools to document events putting them in legal jeopardy and upload them right to YouTube as evidence in future legal action.   

I handled a case as a young attorney, long before YouTube and before I knew the term “electronically stored information.”  I worked for a criminal defense attorney who had a case involving the son of a well known local figure.  The son was involved in a college rugby party gone bad. Since the event was near my alumni, I got the case.   

I ran into the Assistant District Attorney on my way to the courthouse for our first appearance.  The Assistant DA and I had gone to law school together and he invited me to his office to talk about the case.  The Assistant DA was a very active social partier in law school and even he was shocked by the defendants’ partying gone wrong.  There even was video tape of the college party turning ugly which he described as “Girls Gone Wild” meets “COPS.”  The fact the Assistant DA was so taken aback by the video made me very nervous for our clients.   

The videotape in the “Wild Rugby Party Case” was the evidence that put us squarely on the defensive.  Evidence from today’s new “toys” that can take video and immediately upload the event on YouTube or videoblogs is the express train to “State Exhibit A” for those foolish enough to document good times gone bad. 

Moral of the story, don’t behave irresponsibly.   

And for all you plaintiff lawyers and assistant district attorneys out there, surfing YouTube for evidence just became a part of due diligence. 

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[1] See products such as the Casio Exilim Card EX-S880