(3) alters, damages, or removes any record, document, or thing, with intent to prevent it from being produced or used as evidence in any official proceeding or investigation;

… .

commits obstruction of justice, a Level 6 felony.

35-31.5-2-218 “Official proceeding”

Sec. 218. “Official proceeding” means a proceeding held or that may be held before a legislative, judicial, administrative, or other agency or before an official authorized to take evidence under oath, including a referee, hearing examiner, commissioner, notary, or other person taking evidence in connection with a proceeding.

Ind. Code Ann. § 35-31.5-2-218 (West)

Rule 37(e) of the Rules of Federal Procedure Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Is Social Media Admissible?

The short answer is maybe.

For a case on Twitter see Wilson v. State, 30 N.E.3d 1264. (Ind App., 2015).

Rule 901(a): To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Once this reasonable probability is shown, any inconclusiveness regarding the exhibit’s connection with the events at issue goes to the exhibit’s weight, not its admissibility. Additionally, authentication of an exhibit can be established by either direct or circumstantial evidence.” Pavlovich v. State, 6 N.E.3d 969 (Ind.Ct.App.2014) trans. denied, (citing Fry v. State, 885 N.E.2d 742, 748 (Ind.Ct.App.2008), trans. denied )). Letters and words set down by electronic recording and other forms of data compilation are included within Rule 901(a). Hape v. State, 903 N.E.2d 977, 989 (Ind.Ct.App.2009). “Absolute proof of authenticity is not required.” Fry, 885 N.E.2d at 748

The court in Wilson found that the testimony of a witness who was familiar the defendant had communicated with him on the account, there were pictures posted on the account with the defendant holding guns.

Facebook posts held admissible.

FACEBOOK POSTS HELD ADMISSIBLE IN JUVENILE DELINQUENCY TRIAL.

The Indiana Court of Appeals on December 22, 2016, in the case of M.T.V. v State of Indiana, 66 N.E.3d 960, (Ind. App., 2016) held that the Facebook posts between two (2) high school students were admissible as evidence of a conspiracy to commit felonies. The case involved the students’ plan to commit a Columbine-style attack at Seymour High School on the anniversary of the Columbine attack. The students were overheard discussing the attack by another student at the cafeteria table. That student reported what was said to the school officials who called the police. In their investigation, police obtained records of Facebook posts between the two students.

The two (2) students involved in the Facebook posts were questioned and M.T.V. was charged and convicted. During the trial, the posts were admitted over the defendant’s objections of improper foundation and argument that the statements were hearsay and not qualified as a business record. The court did not reach the issue as to whether it was a business record, as the court found it admissible under Evidence Rule 901(a), Rule 801(d)(2)(A) as an opposing party’s statement and Rule 801(d)(2)(E) as a statement by a co-conspirator in furtherance of a conspiracy. The court analyzed how the statement fell within Rule 801(d)(2) and, therefore, was not hearsay.

What one should take away from this case is to introduce a Facebook post, you first need to be able to authenticate the post as that of the person whose statement you are trying to introduce. Once you authenticate the statement, your work is not done. The post must also fit within a rule that otherwise makes the statement admissible. As this case points out, first you authenticate and then you must show it is not hearsay or is admissible under another rule. The court in a footnote stated “One of M.T.V.’s arguments focuses on whether the Facebook conversations warranted admission as business records under Indiana Evidence Rule 803(6). Finding another basis for the proper admission of the conversations, we need not reach this issue.”

Strunk v. State, 44 N.E.3d 1 (Ind. Ct. App. 2015)

Facebook message properly admitted

Witness authenticated person’s profile page:

Witness had communicated with the person through profile page previously

Witness knew the person’s profile picture

Witness recognized mutual friends listed on the person’s page

Knapp v. State, 9 N.E.3d 1274 (Ind. 2014)

Encoded data on digital photograph can be used to authenticate photograph (date and time encoded by digital camera)

There must be evidence that the date/time program was set correctly

Although You May Make it over the Authentication Hurdle, You May Trip over the Next Hurdle

Do you think medical records are admissible if you have a business records affidavit?

Answer: Maybe?

Fendley v. Ford, 458 N.E.2d 1167 (Ind.App., 1984) – Where certain evidence was excluded though the medical records contained a blood alcohol test within them, they were inadmissible for not showing of chain of custody.

Must show the information in the records is information kept in the ordinary course of business

Must show it is medically germane to the treatment

Is the entry fact or opinion?

Also, read Wilson, supra, where the proponent of the exhibit had a business records affidavit and the court implied it may not have been enough.

How do you obtain the Social Media Information?

Can you review the person’s social media if it is public?

Answer: Yes.

What if the person only shares with a “friend”?

Have your assistant friend them and therefore gain the information?

Answer: Absolutely not.

You would think is an easy one, but read Robertelli v. The New Jersey Office of Attorney Ethics. Also, see Rule 4.2 of the Indiana Rules of Professional Conduct. In the above case, the firm had their paralegal make a friend request of the other party after that party had made his page private. They had the paralegal friend him as some random person. In addition to violations of New Jersey’s version of 4.2, they were also charged with violation of New Jersey’s version of Rule 8.4 (c) Misconduct: “It is professional misconduct for a lawyer to: …(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;….”

Can you have your law clerk ask to friend the person as random person if the other party is not represented?

Answer: No.

Even contacting unrepresented people including witnesses can be an issue. Unless you disclose your assistant is employed by opposing counsel, you cannot attempt to friend them. See Rule 8.4 Dealing with Unrepresented Persons. “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.”

Obtaining the Information.

Twitter

The site All My Tweets allows someone to download every tweet they have ever sent that has not been deleted.

Directly from Twitter.

Or a tutorial on YouTube.

Facebook

Download from your settings no more than 90 days.

Text Messages

Backup your texts/messages with this tool.

iPhone: Backup and restore.

Once you delete a post, it won’t be available on LinkedIn and the content cannot be retrieved. Additionally, LinkedIn will no longer distribute your post. However, copies of your content that have been archived or cached by your followers or other external parties, such as Google, cannot be deleted.

Instagram

Subject to your profile and privacy settings, any User Content that you make public is searchable by other Users and subject to use under Instagram API.

Instagram retains different types of information for different time periods. Given the volume of real-time content on Instagram, some information may only be stored for a short period of time.

If you remove information that you posted to the Service, copies may remain viewable in cached and archived pages of the Service, or if other Users or third parties using the Instagram API have copied or saved that information.

Snapchat

Snapchat retains logs for the last 31 days of Snaps sent and received, for 24 hours of posted Stories, and for any unopened Chats or those saved by a sender or recipient. The logs contain meta-data about the Snaps, Stories, and Chats, but not the content.

There are various ways Snapchatters can save content and also upload it to Snapchat (like as an attachment in Chat).

You should understand that users who see the content one provides can always save it using any number of techniques: screenshots, in-app functionality, or any other image-capture technology.

Sample Discovery Requests.

Interrogatories:

Identify any social media account, including but not limited to, Facebook, Twitter, Instagram, LinkedIn, YouTube, of which you have a profile, whether or not currently in use, by listing the following:

Username

Email address and/or phone number affiliated with such account

Any individual who has access to or knows the password for any social media account identified above.

Requests for Production:

Provide your complete Facebook profile by following the attached instructions for download.

Waiver of Attorney-Client Privilege

Does a client posting on Facebook, Twitter, text message, etc., what their attorney has told them about the case waive attorney-client privilege?

According to the US District Court for the Northern District of California, it does. The court ruled in Lenz v. Universal Music Corp, 2010 WL 4780900 (N.D.Cal. Nov. 17, 2010) that the client’s postings on social media, chats with friends, blog postings and e-mails to friends discussing the attorney-client communications was sufficient to waive the privilege and, therefore, the court required the attorney to provide those communications.

What is waived?

Generally, a party that voluntarily discloses part of a conversation covered by the attorney-client privilege waives the privilege as to the portion disclosed and to all other communications relating to the same subject matter. Williams & Connolly v. SEC, 662 F.3d 1240, 1244 (D.C.Cir.2011) (citing In re Sealed Case, 877 F.2d 976, 980–81 (D.C.Cir.1989)).

Appleton Papers, Inc. v. E.P.A ., 702 F.3d 1018, 1024–25 (7th Cir. 2012)

Can you Discover Communications Made by e-mail?

If the e-mail is sent or received by the person at their employment or an employee e-mail, the attorney-client privilege may be waived.

Employees do not have an expectation of privacy in their company e-mail or e-mail accessed on a company device. See Smyth v. Pillsbury Co., 914 F. Supp. 97 – Dist. Court, ED Pennsylvania 1996. In this case, the court found no reasonable expectation of privacy in company e-mail even though the company had a policy claiming it would be confidential.

In another case of Stengart v. Loving Care Agency Inc LCA , the court carved out an exception when the employee was suing the employer and obtained the e-mails to her counsel in the pending case. The court found in this circumstance the attorney representing the employer should have sought assistance from the court.

If All Else Fails…Subpoena

Almost every site you attempt to subpoena will use the Stored Communication’s Act, (18 U.S.C. §2701) as a defense.

When it comes to email, courts have been disinclined to enforce civil subpoenas against these companies. See In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va. 2008) – where the court held that there is no civil subpoena exception to the Electronic Communications Privacy Act (“ECPA”) or the Stored Communications Act (“SCA”) that permit the disclosure of the content of communications.

However, results are mixed when it comes to social media postings (Facebook wall posts, tweets, shared photos, etc).

But Watch How the Content is Classified.

An electronic communication service (“ECS”) is “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 USC § 2510(15).

The other category is RCS. The term “remote computing service” (“RCS”) is defined by 18 U.S.C. § 2711(2) as “the provision to the public of computer storage or processing services by means of an electronic communications system.”

However, there is no clear ruling on how courts classify social media sites into one category or the other.

The most in-depth analysis to-date is found in Crispin v. Christian Audigier , Inc., 717 F.Supp.2d 965 (2010), wherein the defendant served subpoenas on numerous social media services and the plaintiff moved to quash, claiming protection under the ECPA. The judge held that social media services operate as both ECS and ECS providers.

For private messages (Facebook private messages, DMs on Twitter, etc) on social media services, the court really focused on storage

For wall posts and other public or quasi public postings, the court found that, “in the context of a social-networking site such as Facebook or MySpace, there is no temporary, intermediate step for wall postings or comments. Unlike an email, there is no step whereby a Facebook wall posting must be opened, at which point it is deemed received. Thus, a Facebook wall posting or a MySpace comment is not protectable as a form of temporary, intermediate storage.”

Eventually, the court came to the conclusion that what matters is whether content posted on social media services is “completely public” or not.

Who Do I Serve my Subpoena Upon?

LinkedIn: Corporation Service Company

251 East Ohio St, Ste 500

Indianapolis, IN 46204

YouTube/Google+:

Prentice-Hall Corporation System, Inc.

135 North Pennsylvania St, Ste 1610

Indianapolis, IN 46204

SnapChat: Corporation Service Company

251 East Ohio St, Ste 500

Indianapolis, IN 46204

Facebook: Prentice-Hall Corporation System, Inc.

135 North Pennsylvania Street, Ste 1610

Indianapolis, IN 46204

Twitter: Central Indiana Paralegal Service LLC

3310 Busy Bee Lane

Indianapolis, IN 46227

Instagram: Central Indiana Paralegal Service LLC

3310 Busy Bee Lane

Indianapolis, IN 46227

So, is social media information accessible via civil subpoena?

Who knows. Courts are all over the place with it. If you want to subpoena a social media account, your best bet is to:

Avoid seeking private messages. Only seek out quasi-public messages/postings – that is anything available on a user’s timeline/wall/feed, accessible to either to the public or large groups of people (friends of friends, etc.)

Narrowly focus your request as per the FRCP – “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Make sure to time-constrain your request as is relevant to the suit at hand.

What Should I tell my Client?

Make everything private and do not use Social Media

Discuss Social Media matters with your clients and confirm it in writing. An article, Discussing Social Media with Clients by Randall Ryder from July 2011 of the Lawyerist.com is even more true today. While you may have these discussions with your clients they just do not listen. I have told clients to stop all social media while a case is pending. They seem addicted. Even if you keep them off, if they tell their friends and family it will end up on social media. If this happens and it includes matters you have discussed with them, you then have a Lenz issue.

Prepared by Richard A. Mann of Mann Law, P.C. Attorneys at Law, www.rmannlawoffice.com

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This blog does not constitute legal advice nor does it establish an attorney client relationship. This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

This was prepared as a Power Point presentation for ICLEF and Attorneys can watch the entire presentation including from and receive Indiana CLE credit using the link this link

EVIDENCE: E-DISCOVERY USING TODAY’S TOOLS

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