Gibbons Law Alert

Gibbons Law Alert

Tagged: Admissibility

“Private” Facebook Posts Are Discoverable and Should Be Treated as Any Other Source of Discoverable Information

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On July 3, 2018

The New York Court of Appeals unanimously ruled in Forman v. Henkin that “private” Facebook posts (i.e., those accessible only to your Facebook “friends,” as opposed to the general public) are discoverable if they meet the common discovery standard—that they are “material and necessary to the prosecution or defense of an action.” In Forman, plaintiff alleged she was severely injured when she fell from defendant’s horse. Plaintiff alleged her injuries impaired her ability to communicate and participate in what she described as the active lifestyle she enjoyed before the accident. Plaintiff alleged she posted on Facebook many photographs that depicted her pre-accident lifestyle, but that communicating on that social media platform had become so difficult after the accident that she deactivated the account six months later. She alleged that, after her accident, it would take hours to write a message on Facebook because she would have to re-read it several times before sending it to be sure that it made sense. Defendant requested an unlimited authorization to obtain plaintiff’s “private” Facebook account postings, arguing they would be relevant to plaintiff’s claims. The Supreme Court ordered plaintiff to produce all photographs (that were not of a romantic or sexual nature) and an authorization that would allow defendant to obtain from Facebook the frequency of plaintiff’s Facebook posts,...

Second Circuit Vacates Defendant’s Conviction Due to Government’s Failure to Authenticate Social Media Evidence

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Posted in Technology Developments and Issues

On October 20, 2014

The Second Circuit Court of Appeals has reversed a conviction for unlawful transfer of a false identification document (a forged birth certificate) because the district court abused its discretion and committed error in admitting a Russian social media page — akin to Facebook — that the government failed to authenticate as required by Federal Rule of Evidence 901.

Reeling in Fishing Expeditions: Proposed Amendments to the Federal Rules Are Aimed at Narrowing the Scope of Discovery and Increasing Judicial Management

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 10, 2013

Litigants frustrated by endless discovery and skyrocketing costs may find solace in knowing that change may be on the way. Proposed amendments to the Federal Rules of Civil Procedure, as well as recent case law, signal efforts to narrow the scope of permissible discovery and increase judicial management of issues that arise. The proposed amendments — guided by the overarching goal of the just, speedy, and inexpensive determination of every action embodied in Federal Rule of Civil Procedure 1– are aimed at reeling in so-called “fishing expeditions” in which litigants attempt to use discovery to uncover additional causes of action not previously known, or, more nefariously, foist undue cost and burden on their adversary in the hopes of gaining a strategic advantage.

Can You Find Me Now?: New Jersey Supreme Court Says Police Need a Warrant to Access Location Information From a Cell Phone

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Posted in E-Discovery: Legal Decisions and Court Rules

On August 23, 2013

“Advances in technology offer great benefits to society in many areas. At the same time, they can pose significant risks to individual privacy rights.” So begins the recently-issued unanimous decision of the New Jersey Supreme Court in State v. Earls, in which the Court found that “cell-phone users have a reasonable expectation of privacy in their cell-phone location information” and, therefore, under the New Jersey Constitution, “police must obtain a search warrant before accessing that information.” Coming at a time when the public’s attention is particularly focused on the tension between technology and privacy, this opinion represents a groundbreaking new rule of law on the constitutional limits of new methods of tracking and surveillance. (See also the U.S. Supreme Court’s 2011 decision in United States v. Jones and the New York Court of Appeals’ recent opinion in Cunningham v. New York State Department of Labor.) With this unprecedented decision, the New Jersey Supreme Court becomes the first state supreme court to find a constitutionally-protected privacy right in the location of a personal cell phone.

Father’s “Lifestyle” as Portrayed on Internet Causes Dramatic Increase in Child Support Obligations

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Posted in E-Discovery: Legal Decisions and Court Rules

On August 19, 2013

A recent New Jersey Appellate Division decision in Fitzgerald v. Duff provides a potent reminder that if you are involved in litigation, anything you do or say online might be used against you in court. The Fitzgerald proceedings concerned a father’s attempt to modify a previously-entered child support order by submitting his 2011 income tax return, which reported a taxable income of $21,000 from a cash tattoo business. In opposition, the child’s legal custodian filed a certification opposing modification of the support order, suggesting that much of the defendant’s income was unreported, and that a much higher child support obligation was warranted. To support that position, the custodian submitted copies of defendant’s web site, Facebook photographs, and various social media comments evincing his success. The website identified multiple locations at which the tattoo parlor operated and plans for its imminent expansion, featured three staff tattoo artists, and advertised that defendant provided tattoo services for professional football players. The Facebook photographs depicted defendant throwing $100 bills, his speed boat, a 2011 Chevrolet Camaro (plaintiff also maintained defendant owned a Lincoln Navigator), his elaborate tropical wedding, and accompanying diamond engagement and wedding bands. Finally, comments from the father’s Myspace page included statements that in four hours he earns $250, his schedule had “been packed so [he could] pay for this wedding,” and that he purchased television advertising spots.

Somebody’s Watching You — New York Court of Appeals Says State Can Place GPS Device on Employee’s Car, But Can Only Collect Data During Work Hours

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Posted in E-Discovery: Legal Decisions and Court Rules

On July 17, 2013

In its recent 4-3 decision in Cunningham v. New York State Department of Labor, the New York Court of Appeals added to the growing body of case law addressing the constitutional implications of global positioning system (GPS) technology. In Cunningham, the Court found that the Department of Labor’s attaching of a GPS device to an employee’s personal car that was used for work purposes fell within the “workplace exception” to the warrant requirement, however, the search as conducted was unreasonable because the car’s location was tracked in the evenings, on weekends, and while the employee was on vacation. Interestingly, the Court suppressed all of the evidence collected by the GPS device, not just the data collected during non-work hours, citing the “extraordinary capacity” of GPS devices to permit “constant, relentless tracking of anything.”

Use of Work Computer Results in Waiver of Marital Communication Privilege

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Posted in Corporate Information and Records Management Policies

On February 21, 2013

In U.S. v. Hamilton, the United States Court of Appeals for the Fourth Circuit found that a husband who sent messages from his work email account to his wife, yet took no steps to protect the sanctity of those emails, waived the marital communications privilege, thus subjecting the emails to disclosure during discovery. This case serves as an important reminder that employees do not necessarily enjoy an expectation of privacy in the emails they send from their work accounts or while using their employers’ computers.

Show Me The Evidence – Use of Social Media Information at Trial

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Posted in Litigation Preparedness and Strategies

On March 28, 2011

A defendant in an employment action discovers through Facebook that a plaintiff has lied about her discrimination claim. The information essentially undermines plaintiff’s entire claim. However, such information does not make it to a factfinder at trial unless the evidentiary foundations can be established — proof of authorship and timeliness. These evidentiary foundations are not easy to establish in the ever-changing medium of social media. The anonymity offered by some social networking sites may be what makes them attractive to users, but it also makes establishing authorship of content difficult. Similarly, social media sites are constantly changing, as users can add, remove or edit content at any time. As a result, recreating a post or a profile from a particular moment in time can be difficult, if not impossible, depending on how a partciluar site functions.

Court Finds Pictures Downloaded from MySpace Inadmissible

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 14, 2011

Obtaining data and images from social networking sites (“SNS”) such as Facebook, LinkedIn and MySpace has become commonplace in civil and criminal litigation. However, issues surrounding proper authentication of this information at trial remain unresolved. The New York Supreme Court’s recent opinion in People v. Karon Lenihan, 1714/2008 (Sup. Ct., Queens Cty. Nov. 12, 2010)highlights judicial skepticism surrounding the use of SNS evidence.

Court Finds Google Earth Images to Be Admissible Evidence

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Posted in E-Discovery: Legal Decisions and Court Rules

On November 15, 2010

On September 27,2010, in State ex. Rel. J.B., the Appellate Division of the Superior Court of New Jersey allowed the State to use two satellite photographic images obtained from Google Earth as illustrative aids. The case involved the lower court’s determination that a minor was a delinquent. Attempting to discredit the juvenile’s alibi that he was home at the time of an alleged burglary, the State offered into evidence the juvenile’s cell phone records and the testimony of a Verizon representative, who explained that cell phone calls are transmitted through the tower nearest the caller. The prosecution then offered photographs obtained from Google Earth to aid in showing that calls made from the juvenile’s cell phone during the burglary were transmitted through the cell phone tower that was closest to the burglary site (and not the tower closest to the juvenile’s home). Both towers, as well as the site of the burglary and the juvenile’s home, were pinpointed via Google Earth. Defense counsel objected, arguing that the prosecution failed to establish a “‘foundation in terms of how accurate [Google Earth] is.'”

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