Social Media

August 28, 2022

Some of the Perils of Group Texts and “Reply All” Emails

Kathryn Rubino’s post, Attorney’s Group Text Goof Leads To Mistrial – Above the Law (Aug. 22, 2022), describes what happened when a prosecutor sent a group text to a group of prosecutors. The group text criticized a judge’s ruling excluding evidence: “Regrettably for [attorney’s name omitted], Judge [name omitted] — a former prosecutor […]
August 13, 2022

Suspect’s Haircut = Destruction or Concealment of Evidence Leading to “Missing Evidence” Jury Instruction

In re Rainey v. State, __ Md. __, 2022 WL 3269789, at *1 (Md. Aug. 11, 2022), the Court affirmed a jury instruction on destruction or concealment of evidence “based on evidence that the defendant cut off his dreadlocks between the time of the crime and the arrest.” The victim was shot […]
August 9, 2022

“Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History”

An interesting post by Phillip Favro, The Hon. Helen Adams, and Leslie Behaunek, Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History – Innovative Driven (id-edd.com) (June 1, 2022), describes tools provided by Instagram and Facebook that users may employ to delete material posted to […]
June 13, 2022

Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence

In a prior blog, I addressed the intermediate appellate decision in a case authenticating asbestos-containing chalk samples that had been obtained on eBay decades after the alleged exposure to asbestos.   Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104. That decision was affirmed “as a matter of […]
May 18, 2022

“The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference

“The Checklist Manifesto: How to Get Things Right,” by Atul Gawande, M.D.,[1] is a fascinating analysis of the history and uses of checklists. In a nutshell, the thesis is that there are many areas where we have sufficient knowledge to solve problems; however, we fail to apply it correctly.  “Getting the steps […]
April 29, 2022

“Friending” by Undercover Police Officer

Much has been written about “friending,” especially deceptive friending or friending of represented parties, in the civil litigation context. For example, under Philadelphia Bar Association Professional Guidance Committee Opin. 2009-02 (Mar. 2009), an attorney or those supervised by the attorney may not use deceptive conduct to access an unrepresented person’s social media […]
April 21, 2022

Sedona Conference “Selected eDiscovery and ESI Case Law from 2021-22”

Philip J. Favro, Esq., has edited the just-published “Selected eDiscovery and ESI Case Law from 2021-22” (The Sedona Conference 2022).  This is an excellent resource in an always-changing field. Phil’s work runs the gamut of topics, including cooperation, ephemeral messaging, ESI protocols, ethics, Fed.R.Evid. 502(d), privilege logging, redactions, litigation holds, social media, […]
March 31, 2022

40th State Adopts a Duty of Technological Competence – Is It a Good Idea?

Although the ABA’s “technological competence” standard is a good “first step,” it could be improved.  Simply telling attorneys “be competent” – – with no further guidance or implementation – – does little to advance the ball.  Several articles make this point and suggest the need for additional specificity, education, and greater emphasis […]
March 7, 2022

Requests for a Preservation Order

Preservation orders may be entered by agreement, ex parte, or upon motion after an opportunity for briefing.  Fed.R.Civ.P. 16(b)(3)(B)(iii) and Rule 26(f)(3)(C) authorize preservation orders as part of a discovery plan or scheduling order.  Additionally, “[a] federal court may also issue preservation orders as part of its inherent authority to manage its […]
November 13, 2021

“Wayback Machine” Evidence Held to be Insufficient to Support Personal Jurisdiction

In Abdul-Baatin v. LG ChemAmerica, Inc., No. 2217 (N.J. Super. Ct. App. Div. Nov. 12, 2021) (unpublished), evidence of defendant’s contacts with the forum was in part presented through a web page from the Wayback machine.  Defendant, a South Korean company, was sued for injuries allegedly sustained from an exploding lithium battery.  […]
August 11, 2021

Snapchat Spoliation Blog: More on the Dangers of Unsupervised Self Collection

Thanks to Phil Favro of Driven, Inc., for his excellent post “Snapchat Spoliation Case Highlights the Importance of eDiscovery Competence” (Driven, Inc., Jul. 20, 2021). Phil’s blog discusses the importance of understanding the features of various messaging programs.  I have recently blogged about a District of Maryland decision that conditionally approves of […]
August 10, 2021

District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data

Many social media programs provide their members with a non-forensic download tool.  For example, Google Takeout, Uber, Twitter, and LinkedIn provide download instructions.  See C. Ball, “Preserving Social Media Content: DIY (Dec. 24, 2019). However, those tools may not provide the same information that a forensic download collects. In Allen v. PPE […]
August 9, 2021

District of Maryland Applies Narrower Scope of Discovery of Social Media in “Garden Variety” Emotional Distress Cases

The District of Maryland has drawn a sharp distinction between discovery of social media posts in physical impairment cases, “garden variety” emotional distress cases, and “severe and specific” emotional distress cases.  See Blog, “District of Maryland Clarifies Rules Governing Discovery of Social Media.” The scope of discovery of social media in physical […]
August 8, 2021

District of Maryland Clarifies Rules Governing Discovery of Social Media

In Allen v. PPE Casino Resorts Maryland, LLC, __ F.Supp.3d __, 2021 WL 2434404 (D. Md. Jun. 14, 2021), and Gaske v. Crabcake Factory Seafood House, LLC, 2021 WL 3188007 (D. Md. Jul. 28, 2021), the Honorable J. Mark Coulson described the principles governing discovery of social media.  Both decisions involved employment […]
July 19, 2021

Facebook: Deactivation v. Deletion; Authentication With Native Files; and, Searching

As one of the most popular social media sites, Facebook is the subject of numerous ESI cases.  Three recent decisions address deactivation v. deletion, the value of native Facebook files when authentication is disputed, and the search for responsive information. DEACTIVATION OR DELETION? Brown v. SSA Atlantic, LLC, 2021 WL 1015891 (S.D.Ga. […]
January 13, 2021

Application of Maryland’s Evidentiary “Unfriending” Rule to Recent Events?

The Baltimore Sun reports that:  “In Maryland and beyond, those who once bragged about overrunning the Capitol are now deleting their [social media] photos ….” T. Prudente, “As scrutiny intensifies over deadly U.S. Capitol riots, Marylanders delete photos, social media trails,” The Baltimore Sun (Jan. 12, 2021). That alleged action may have […]
December 19, 2020

Judicial Postings on Social Media

A few months ago, a Tennessee judge who was going through “a rough time” in his life, was publicly reprimanded for sending inappropriate messages to women on social media platforms. Some of the messages pictured him in a judicial robe.  D. Weiss, “Judge is reprimanded for ‘flirtatious to overtly sexual social media […]
November 28, 2020

The Duty to Preserve Continues Even After Production of Social Media

In Faulkner v. Aero Fulfillment Services, 2020 WL 3048177 (S.D.Oh. June 8, 2020), the court held that deactivation of a LinkedIn site after it had been downloaded and produced breached the duty to preserve that ESI.  However, the sanction was limited to an admonishment due to the absence of prejudice. The problem […]
May 12, 2020

“Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media

In State v Sample, __ Md. __, 2020 WL 2316709 at *3 (May 11, 2020), the Court of Appeals of Maryland concluded that “that the standard of proof for authenticating social media evidence is the preponderance of evidence standard, i.e., there must be sufficient circumstantial evidence for a reasonable juror to find […]
May 2, 2011

Maryland Murder Conviction Reversed Over MySpace Page

May 2020 UPDATE:  Please see “Unfriending” Evidence – Maryland Follows “Reasonable Juror Standard in Authentication of Social Media. In Griffin v. State, No. 74 (Sept. Term, Apr. 28, 2011), Maryland’s highest court reversed a murder conviction because printed MySpace pages were not properly authenticated. Mr. Griffin was charged with shooting another person.  […]