However, on the other hand: “If you’re going to trial and your lawyer doesn’t have an iPad, you may want to seek different legal counsel.” Zachary Mesenbourg, “Voir Dire in the #lol Society: Jury Selection Needs Drastic Updates to Remain Relevant in the Digital Age,” 47 J. Marshall L. Rev. 459, 471 (2013), quoting Kashmir Hill, “Make Sure Your Lawyer Knows How to Use Facebook,” FORBES (Feb. 23, 2011).

Hill suggested that “voir dire” is becoming “voir Google.” Id.

WHAT HAPPENED IN CONTOUR?

Importantly, Contour presented some unique facts.  In short, there was no bad faith. Instead, a human inadvertently erred.

As Law360 explained, the Judge had a standing order on how to conduct social media research.  It prohibited the social media search that was conducted here.  The lawyers “hired a jury consultant, but did not advise it of an obligation to comply with that standing order, and the consultant hired an investigator who also was unaware, according to the order. That investigator used LinkedIn for research, which Judge Orrick said he prohibits because it sends a notification to users that someone is viewing their profile.”

Id.  The Law360 article states:

The judge said he recognizes that he “may be one of only a few judges who consider automatic notifications on LinkedIn to the juror contact” and said he appreciates “that counsel did her best to rectify the violation by prompt disclosure.”

But, the judge said, failure to comply with the standing order merits sanctions.

The Contour court wrote that the investigator followed strict standards to access only publicly available information, “but it used LinkedIn for its research, which I prohibit even for ‘anonymous’ searches because of the automatic notification setting employed by LinkedIn.  The prospective juror is still notified as a result of the investigator’s search, even if the juror can’t tell who was viewing her information.”[1]

The court also wrote that the attorney acted responsibly .  She disclosed the violation and the social media information to opposing counsel.  Additionally, she did not share it with her co-counsel who conducted voir dire.  And, she promptly notified the court.

However, the Contour court wrote: “I want to emphasize that I remain convinced that the Standing Order is appropriate.”

THE ARGUMENTS AGAINST PERMITTING SEARCHES

OF POTENTIAL JUROR AND SEATED JURORS’ SOCIAL MEDIA

Much of the concern about attorney searches of potential jurors during voir dire, or searches of jurors during trial, is that social media platforms may notify a juror of the search.

Another factor is privacy. One juror in a high profile case said: “We would like the public to allow us to return to our private lives as anonymously as we came.”  Jayne S. Ressler, “Juror Privacy Via Anonymity,” 93 Fordham L. Rev. 611, 612 (2024).  At the conclusion of another high profile case, “the judge stated simply [to the jury], ‘My advice to you is that you never disclose that you were on this jury, and I won’t say anything more about it.’” Id. at 613.  Jurors have been doxed and threatened. Id. at 613-14, passim.

One court wrote:

Trial judges have such respect for juries—reverential respect would not be too strong to say—that it must pain them to contemplate that, in addition to the sacrifice jurors make for our country, they must suffer trial lawyers and jury consultants scouring over their Facebook and other profiles to dissect their politics, religion, relationships, preferences, friends, photographs, and other personal information.

Oracle Am., Inc. v. Google Inc., 172 F. Supp. 3d 1100, 1101 (N.D. Cal. 2016)(Alsup, J.). That decision explained:

The Court, of course, realizes that social media and Internet searches on the venire would turn up information useful to the lawyers in exercising their three peremptory challenges, and, might even, in a very rare case, turn up information concealed during voir dire that could lead to a for-cause removal. While the trial is underway, ongoing searches might conceivably reveal commentary about the case to or from a juror.

Nevertheless, in this case there are good reasons to restrict, if not forbid, such searches by counsel, their jury consultants, investigators, and clients.

The Oracle court was concerned that, if lawyers searched jurors, jurors might decide to do their own internet searches on the lawyers and the case: “To return to the first concern, the apparent unfairness in allowing the lawyers to do to the venire what the venire cannot do to the lawyers will likely have a corrosive effect on fidelity to the no-research admonition.”  Id. at 1102.

The Oracle court was also concerned that social media research would open the door to inappropriate personal appeals to jurors, such as use of a “favorite quote” or a political viewpoint.  Id. at 1102-03.

Additionally, the Oracle court had privacy concerns: “Their privacy matters. Their privacy should yield only as necessary to reveal bias or a reluctance to follow the Court’s instructions. It is a weak answer that venire persons, through their social media privacy settings, have chosen to expose their profiles to scrutiny, for navigating privacy settings and fully understanding default settings is more a matter of blind faith than conscious choice.”  Id. at 1103.

In his Contour article, Mr. Weld quoted the court:

“Individual privacy has been eroded over the last thirty years with the advent of various surveillance tools, the internet, smart phones, and social media,” the order reads. “I do not think that jurors should lose any remaining privacy interests simply because they are called to do their civic duty, any more than I think that jurors should be able to investigate the lawyers in a case before agreeing to serve.”

However, the Contour court did not prohibit all juror research. The order in Contour recited that the Court provides prospective juror names to counsel prior to jury selection, to “allow the parties to do some publicly available research on the people who may decide the case.” [emphasis added] It stated:

That latter point raises, for me, the question of whether there should be limits on individual research.  I believe strongly in the right to privacy.  Judges instruct jurors that they may not investigate the lawyers, parties, witnesses or issues in the case before them, and I think a concomitant right should preclude lawyers from rummaging around in the lives of prospective jurors.  In the days before the internet, lawyers used various services to seek public information about jury pools, such as property records, voting rolls, civil and criminal litigation history, and so forth.  With the advent of social media, of course, there is now a lot more information readily available online about individuals, including information individuals post about themselves.  And there are a variety of ways someone seeking information about another can do so, including in ways that the general public might have thought was protected from view because of the implementation of some screening mechanism.

To my mind, information that a person discloses in a publicly available manner is fair game for lawyers preparing for voir dire.  Lawyers have an ethical duty not to contact prospective jurors, however, so they must be careful not to inadvertently use an investigative technique that notifies a juror that their information is being reviewed.  Because this is an evolving area and different judges have varying perspectives on it, I issued a Standing Order Regarding Juror Questionnaires and Social Media Research….

In short, while some juror research was not only permissible, it was facilitated by the Contour court.

THE VALUE OF SOCIAL MEDIA SEARCHES OF PROSPECTIVE JURORS

Some courts have held or implied that attorneys must do at least a limited social media search early in the case or risk waiver of an argument based on posted and available information.  For example, Michael Thomas Murphy wrote in “The Search for Clarity in an Attorney’s Duty to Google,” 18 Legal Comm. & Rhetoric: JALWD 133, 147–48 (2021):

One case illustrates the complexity of this practice. In Johnson v. McCullough, an attorney on appeal in a medical malpractice case argued that a juror in the trial court had lied during voir dire, when asked if he had ever been a party to a lawsuit. The attorney discovered this falsehood by searching for the juror on Missouri’s automated court record system, Case.net.101. [emphasis added].

However, the search was performed too late:

The Court bristled at the idea of attorneys searching for juror information after a case to undermine a verdict, and directed attorneys to affirmatively search for information about jurors on Case.net before trial. As one observer noted, attorneys “now have a free and potentially easy means to search a prospective juror’s litigation experience.” Attorneys who fail to perform such a search risk waiving the ability to argue juror nondisclosure in voir dire on appeal. That is to say that attorneys are not just permitted to Google jurors. They may be required to Google jurors to preserve a right on appeal.

Id. (emphasis added).

The Hon. Dennis Sweeney (ret.) gave examples that show both the need and value of juror social media research:

• “In Fresno, California, a Superior Court Judge found himself sitting as a juror on a murder case, and was, indeed, designated to be the Foreman. Throughout the trial, the juror-judge sent emails to his 22 colleagues on the bench, including the judge presiding over the case, giving them periodic updates on the progress of the case. His first email announced: ‘Here I am, livin’ the dream, jury duty with Mugridge [the defense lawyer] and Jenkins [the prosecutor].’ After conviction, counsel for the Defendant discovered the emails and moved for a new trial.”
• “In a state-court civil trial in Arkansas, a $2.6 million verdict in favor of investors against a building material company was attacked because the company alleges a juror sent eight messages or ‘tweets’ via his cellular phone to his ‘followers’ about the trial. According to the Arkansas Online news site, one of the ‘tweets’ read: ‘oh and nobody buy Stoam [the building material at issue]. Its bad mojo and they’ll probably cease to exist, now that their wallet is 12 m lighter.’”
• “In England, a juror was dismissed from a child abduction and sexual assault trial after she posted details of the case on her Facebook page, including her reactions to the testimony. At one point, she solicited the views of her Facebook ‘friends’, telling them: ‘I don’t know which way to go, so I’m holding a poll.’ Luckily, her actions were discovered before deliberations began, and she was dismissed as a juror.”
• “Closer to home, Maryland’s Court of Special Appeals, in an unreported opinion, overturned a felony-murder conviction because a deliberating juror conducted an on-line search for the terms ‘livor mortis’ and ‘algor mortis’ on Wikipedia, printed out the pages, and brought them in to the jury room. The juror’s action was discovered when the jury bailiff found the printouts in the jury room after the jurors were excused for the day. When asked about it, the juror said, ‘To me that wasn’t research. It was a definition.’”[2]

There are many more examples:

“During jury deliberations in a four-month-long political corruption trial in federal court in Philadelphia, defense attorneys discovered that a juror was posting ‘updates’ on Facebook, such as ‘today was much better than expected and tomorrow looks promising too!’ and ‘stay tuned for the big announcement on Monday.’”  Frank J. Mastro, “Preventing the ‘Google Mistrial’: The Challenge Posed by Jurors Who Use the Internet and Social Media,” 37 ABA Litigation, Winter 2011, at 23.

“Following the conviction of the mayor of Baltimore on an embezzlement charge, her lawyers moved for a new trial after learning that five jurors communicated among themselves during trial through Facebook. The jurors became ‘friends’ on Facebook and engaged in online conversations throughout the trial. Some posts, such as ‘Hi James! Ready for round … oh I lost count! See you tomorrow,’ seemed innocuous, but others appeared less so. A non-juror named ‘Al’ added the comment ‘not guilty’ to an online conversation on one juror’s Facebook page at a time when the jury had not yet reached a verdict.”  Id. at *24.

“A potential juror in Cincinnati last year accessed his Facebook page from the courthouse and posted a status update that informed readers that he was ‘sitting in hell … aka jury duty.’ (The juror, by the way, was struck for cause when the plaintiff’s attorney, who had his laptop in the courtroom, found the Facebook update).”  Id. at *27.

The American Bar Association has weighed in.  The Oracle court added:

[I]n Formal Opinion No. 466, the ABA considered the extent to which an attorney may conduct Internet searches of jurors and prospective jurors without running afoul of ABA Model Rule 3.5(b), which prohibits ex parte communication with jurors. That opinion determined that “passive review” of a juror’s website or social media that is available without making an “access request” and of which the juror is unaware is permissible within ABA Model Rule 3.5(b). The ABA likened such review to “driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury-selection decisions.” Access requests, such as friend requests on Facebook, “following” users on Twitter, or seeking to “connect” on LinkedIn, whether on one’s own or through a jury consultant or other agent, constitute forbidden ex parte communications within the rule.[3]

Id. at 1107.  “The bar associations of New York, New Hampshire, and Pennsylvania have issued similar opinions, though these opinions do not so much establish a bright-line rule as they analogize jurors to opposing parties with respect to the permissiveness of contact. A district judge in the Eastern District of Texas has issued a standing order providing guidelines for the Internet research of jurors, prohibiting active communication such as ‘friending’ but allowing for passive communication such as profile viewing, noting that in so doing, ‘The Court recognizes the duty imposed on diligent parties to secure as much useful information as possible about venire members.’” Murphy, “The Search for Clarity,” 18 Legal Comm. & Rhetoric: JALWD at 148–49.

There are suggestions that a failure to perform an internet search of potential jurors may be malpractice, or at least evidence of malpractice.  Id. at 151.  In New York it is “not only permissible for trial counsel to conduct Internet research on prospective jurors, but [] it may even be expected.’”  Ressler, “Juror Privacy Via Anonymity,” 93 Fordham L. Rev. at 625.  Ms. Ressler adds: “As a result, some believe that failing to conduct internet searches of the venire and jurors–including their social media profiles–could be grounds for malpractice.”  Id.

SOME SUGGESTED OPTIONS

The Oracle court cautioned: “That such searches are not unethical does not translate into an inalienable right to conduct them.”  172 F. Supp. 3d at 1107 (emphasis added). Further, the ABA explained that Judges may limit the permissive ability to search.

Any time that there is a lack of clear guidance, caution is warranted. When Must a Motion to Compel Be Filed? – Part 4 (Oct. 28, 2025).

Social media research may be both proper and important.  I suggest that, in the absence of an order such as that in Contour, attorneys notify the trial judge in advance of their proposed intent to search prospective jurors during voir dire, and seated jurors during trial, and then ask the court to both grant permission and to inform the jury that it is both the right and duty of counsel to search publicly-available social media about them, before, during, and after trial.

Of course, the risk in that approach is that the court may deny the request.  However, in that context, the risk of simply charging ahead without permission appears to me to be greater.  When Admiral David Farragut famously ordered, “damn the torpedoes, full speed ahead,” in the Battle of Mobile Bay during the Civil War, he was a hero only because he did not hit a torpedo. (“Torpedoes” were mines.)

The risk is clear.  In United States v. Watts, 934 F. Supp. 2d 451, 494 (E.D.N.Y. 2013), a defendant made such a request.  The court permitted a search of prospective jurors, but made it subject to precautions and limitations. First, direct contact was prohibited.  “This includes, but is not limited to, abstaining from searching jurors through LinkedIn or any other social networking platform which could, in certain circumstances, leave a record with the account holder of having been searched by a specific party.”  Id. at 494-95. Second, “all parties are barred from informing jurors that internet searches are being conducted of them.” Id. at 495.  Third, a duty of disclosure of any negative information to the court and opposing counsel was imposed under the duty of candor to the tribunal.

Other courts may not preclude searches.  See U.S. v. Milton, 2023 WL 5609098 (S.D.N.Y. Aug. 30, 2023)(“But the defense team had access to the full name of Juror No. 6 throughout the voir dire process and were free to research her and her online presence, at the time she was being questioned, or at any time during the trial…. At no point did the Court prevent Milton from engaging in a comprehensive search in this regard.”).

The Oracle court had a different solution that placed the burden on counsel to inform the jury:

In the absence of complete agreement [among counsel] on a ban [of social media searches of jurors], the following procedure will be used. At the outset of jury selection, each side shall inform the venire of the specific extent to which it (including jury consultants, clients, and other agents) will use Internet searches to investigate and to monitor jurors, including specifically searches on Facebook, LinkedIn, Twitter, and so on, including the extent to which they will log onto their own social media accounts to conduct searches and the extent to which they will perform ongoing searches while the trial is underway. Counsel shall not explain away their searches on the ground that the other side will do it, so they have to do it too. Nor may counsel intimate to the venire that the Court has allowed such searches and thereby leave the false impression that the judge approves of the intrusion. Counsel may simply explain that they feel obliged to their clients to consider all information available to the public about candidates to serve as jurors. Otherwise, counsel must stick to disclosing the full extent to which they will conduct searches on jurors. By this disclosure, the venire will be informed that the trial teams will soon learn their names and places of residence and will soon discover and review their social media profiles and postings, depending on the social media privacy settings in place. The venire persons will then be given a few minutes to use their mobile devices to adjust their privacy settings, if they wish.

172 F. Supp. 3d at 1103-04.  While such a ruling is certainly within the court’s discretion, I suggest that it effectively chills the ability of counsel to conduct such searches.  The risk of alienating the jury at the outset is, in my view, too high.

This is not the last word on the “duty to Google.” “An attorney trying a case may have a Duty to Google jurors. This specific area of law is developed but still somewhat unsettled.” Michael T. Murphy, ”The Search for Clarity in an Attorney’s Duty to Google,” 18 Legal Comm. & Rhetoric: JALWD 133, 133, 147 (2021)(“This Duty to Google contemplates that certain readily available information on the public Internet about a legal matter is so easily accessible that it must be discovered, collected, and examined by an attorney, or else that attorney is acting unethically, committing malpractice, or both.”).  “So the Duty to Google really is one of technological competence….” Id. at 142.  However, the “duty” is not limited to Google: “On that note, the Duty to Google facts has extended into searching social media.”  Id.

The lack of uniformity creates uncertainty.  Quoting Kathy Ho, Mr. Murphy wrote that: “The current landscape is unclear, at best. Katy Ho put it bluntly: ‘Attorneys cannot fulfill their duty of competence if they do not know what it entails.’” [emphasis added].[4]

“Technology has changed factual investigation, much in the same way that it has changed essentially all of legal practice.”  Id. at 153. Mr. Murphy concludes: “The bar and legal academia should incorporate Internet fact-finding into basic legal training and continuing legal education.”  Id. at 163.  He wrote:

It is clear that attorneys have a requirement to perform an Internet search about prospective (and current) clients, witnesses, potential matters, and in certain cases, potential jurors. It is less clear where that requirement extends to other areas of legal representation and troubling that those areas may only be discovered after an attorney faces sanctions. Reliance on ethical opinions from state bar journals to avoid these sanctions is not enough. For guidance’s sake, it makes sense to codify this requirement as part of the rules governing an attorney’s professional responsibility. Drafters of such a rule face a real challenge of scope and depth as they search for the right balance between expectation and fairness. Greater detail with respect to an attorney’s technological competence will help the bar stop searching for answers about its Duty to Google.

Id. at 165.

A “duty to Google” was not imposed, but was discussed in, DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 867 (N.D. Ill. 2021)(subsequent history omitted).

Social media has changed litigation, and this is only one example. See, e.g.:

• Evidence of Internet Searches About Lawful Abortion Held Inadmissible to Prove Intent to Later Kill or Harm Newborn Baby (Feb. 20, 2025);
• “Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History”(Aug. 9, 2022);
• “Friending” by Undercover Police Officer (Apr. 29, 2022);
• District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data (Aug. 10, 2021);
• District of Maryland Clarifies Rules Governing Discovery of Social Media (Aug. 8, 2021);
• “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media (May 12, 2020).

This blog was initially posted on  Electronic Discovery Reference Model.

This blog was republished in Attorneys Sanctioned for Social Media Research on Prospective Jurors | Maryland State Bar Association

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[1] Who’s viewed your profile visibility settings | LinkedIn Help; Who’s viewed your profile differences between basic accounts and Premium accounts | LinkedIn Help

[2] Judge Sweeney’s article, 43 Md. Bar J. 44 (2010), was reprinted in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2021), Ch. 24.

[3] T. Carter, Lawyers can look up jurors on social media but can’t connect with them, ABA ethics opinion says (Apr. 24, 2014); ABA Formal Op. 466, Monitoring Jurors Social Media Pages (Apr. 24, 2014)(“The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”).

[4] In  two different contexts where lack of uniformity raises questions and therefore caution is necessary, see Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022); When Must a Motion to Compel Be Filed? – Part 4 (Oct. 28, 2025).

The article states: “A settlement has been reached in a lawsuit that the former principal of Pikesville High School filed against Baltimore County Public Schools and the man convicted of using artificial intelligence to impersonate him and destroy his reputation.”

The terms of the settlement were not disclosed. The plaintiff “alleged that the school system refused to correct the record after an employee used AI to create an audio clip that sounded like him making racist and antisemitic comments.”  Id.

The fake audio clip contained racist and antisemitic remarks.  It was posted on social media.  Kristen Griffith, Faked by AI? Baltimore County Public Schools investigates offensive recording – The Baltimore Banner (Jan. 17, 2024). Mr. Eiswert was immediately removed from his  position as principal.

A criminal investigation followed, and:

Eiswert reported that he had conversations with Darien about not renewing his contract due to poor performance, inability to follow procedures and unwillingness to adhere to the chain of command.

Police tied Darien to a Gmail account that was used to send out the recording to two teachers with the subject line, “Pikesville Principal — Disturbing Recording.” The clip appeared on social media about 30 minutes later.

Forensic experts proved that the recording was fake.  Dylan Segelbaum and Kristen Griffith, Ex-Pikesville principal speaks after Dazhon Darien’s plea in AI case – The Baltimore Banner (Apr. 28, 2025).

Catalin Grigoras, an associate professor at the University of Colorado Denver and director of the National Center for Media Forensics, performed an “extensive analysis” and concluded that the audio contained traces of AI-generated content.

Grigoras also determined that someone then edited the clip and added background noises to make it seem more realistic.

Id.

Although the offensive audio was fake, the ex-principal testified that his life would never be the same. Dylan Segelbaum and Kristen Griffith, Ex-Pikesville principal speaks after Dazhon Darien’s plea in AI case – The Baltimore Banner (Apr. 28, 2025).  “The recording quickly spread across social media, and Eric Eiswert said his life forever changed.”  Id.

One day, Eiswert said, he was a respected educator who had served students and their families in Baltimore County for 27 years. The next day, people viewed him as a “racist and antisemite who said vile things about students and teachers.”

Though people later learned the recording was fake, Eiswert said, he knew “my life would never be the same.”

“I am slowly rebuilding my professional career, and I’m beginning to heal,” Eiswert said on Monday in the Baltimore County Courts Building. “But this experience will never leave me.”

Id.  The Banner reports that:

Eiswert received threats, including one that stated the “world would be a better place if you were on the other side of dirt.” He’s now principal of Sparrows Point Middle School in Edgemere.

Id.

The defendant entered an Alford plea to one count of disturbing school operations and was sentenced to four months in the Baltimore County Detention Center.  The sentencing judge said that a “good section of the community” will always look at Eiswert in a different light “whether it’s deserved or not.”  Id.  The judge added: “It is clear that he did not make that recording,” …. “He will always have to take that with him.” Id.

UPDATE: Racquel Bazos, “Former Pikesville high School principal settles suit with AI impersonator,” Baltimore Sun (Nov. 2, 2025)(“Darien was sentenced to four months in the county detention center for disturbing school operations.”).

A local business contacted police and provided an audio recording of the shooting.  Gunshots could be heard and a person shouted “Sconey, are you serious? You shot her Sconey.”

As a result, the police tried to find out who “Sconey” was.  Detective Jones performed an internet search, located two profile pages, and printed two “Instagram profile pages for ‘Scony_g’ and ‘Scony_da_g,’ each with a profile picture that resembles Spencer.”[1]

At trial, the State tried to prove that “Sconey” was the defendant, Mr. Spencer.  In addition to cell phone location data and DNA evidence, the State introduced the Instagram pages.

In response to the challenge to authentication, the State contended that the Instagram printouts were offered for a limited purpose and therefore authenticated.

In footnote 3, the Court wrote that “authentication of the mere existence of a social media profile is a relatively novel issue….”  [emphasis added].  It wrote that “our courts have not opined on it yet….”

As such, one may ask why the Spencer opinion, which decided a “relatively novel issue,” was unreported.  Maryland’s New and Improved Unreported Opinion Rule Does Not Go Far Enough – E-Discovery LLC (citing unreported decisions that were found “cert-worthy” by Maryland Supreme Court); Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones – E-Discovery LLC (discussing unreported decision on novel issue); Admissibility of Internet Searches About Terminating Pregnancy – E-Discovery LLC (same).

In Spencer:  “The State made clear that it was not offering the printouts to prove that Spencer had created the Instagram profiles, but only to show that the police had found the profiles while researching ‘Sconey.’”

The Appellate Court wrote: “Although our courts have not opined on it yet, it seems obvious that, … if the proponent merely wants to establish the existence of the social media evidence, they only need proof to support a finding that the social media evidence is what the proponent claims it to be.”  It stated:

There was sufficient proof from which a reasonable juror could find that the printouts are what the State purported them to be. The State proffered the printouts to show that the police had found the profiles while investigating the nickname “Sconey.” Because the State did not offer the printouts to show who had authored them, it was not necessary for the State to authenticate the source of the profiles. [emphasis added].

In short, because the profiles were offered for a limited purpose, they were properly authenticated.[2]

Mr. Spencer also argued that the pages could have been fabricated or “the photographs associated with the Instagram profiles could have been manipulated.”  The Court rejected that argument.  It wrote that the proponent need not exclude every possibility in order to authenticate evidence and this objection went only to weight. It wrote: “Because the State need not guarantee that the printouts are what it purports them to be, Spencer’s arguments are unpersuasive.” [emphasis in original].

As a precaution, the Court addressed harmless error, writing:

In this case, the printouts of the Instagram profile pages are cumulative of other properly admitted evidence. The printouts were admitted to prove that Spencer is “Sconey.” There was other evidence at trial, however, that makes this same point. First, the State introduced Detective Jones’s testimony in which he described YouTube videos that he found that tie Spencer to “Sconey.” In researching what the nickname “Sconey” was, Detective Jones testified that he “went onto YouTube … and came across music videos for Sconey G., otherwise known as Deamonte Spencer.” Detective Jones identified Spencer as the individual in the videos. Second, the State introduced significant evidence linking the nickname “Sconey” to Spencer’s phone. This evidence included: that in Kamira and Leah’s phones, Spencer’s phone number was listed as “Sconey”; that the billing subscriber listed for Spencer’s phone number was “Sconey Smith”; that Spencer’s phone sent Leah’s phone two audio files titled “Sconey G, Snakes in the Grass” and “Sconey G, blood in the streets.” Because this body of evidence repeatedly links “Sconey” to Spencer, it proves the same point as the printouts of the Instagram profile pages and is thus cumulative. Accordingly, the admission of the printouts, if erroneous, was harmless beyond a reasonable doubt.

Maryland has an extensive body of case law governing authentication of social media and video evidence:

• “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media – E-Discovery LLC
• Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104 – E-Discovery LLC
• Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence – E-Discovery LLC
• Authentication of Surveillance Video by Lay Witness Under Silent Witness Doctrine – E-Discovery LLC
• Can a witness authenticate a video if the video contains images that the witness did not see? – E-Discovery LLC
• Authentication of Entire Video When Witness Observed Only Part of the Events Portrayed in the Video – E-Discovery LLC
• Expert Testimony Not Required to Show Ability to Disable Location Tracking on Smartphone – E-Discovery LLC
• Is a “Composite” Video Admissible and Can a Police Officer “Narrate” It at Trial? – Part 2 of 2 – E-Discovery LLC
• Surveillance Video of Robbery Was Properly Authenticated by Eyewitness – E-Discovery LLC

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[1] The Court wrote that sometimes “Sconey” was spelled without an “e”.

[2] While I do not suggest that there was a need to discuss Griffin, the State’s approach in Spencer distinguishes it from Griffin v. State, 419 Md. 343 (2011).

Two LinkedIn posts were at issue. The LinkedIn profile “showed him in [a U.S. Coast Guard] Auxiliary uniform and read ‘Branch Chief for Human Resources’ for the Auxiliary.”   The court wrote:

The first [post] was in response to a post congratulating Justice Ketanji Brown Jackson…. Wenzler’s responsive post read: “Another racist makes the court to join racist Sotom[a]yor and Kag[a]n. Great job America!” The second post was in response to a post commending a girl scout for writing a letter to the editor to complain about an announcement regarding boy and girl scouts that the writer deemed sexist…. Wenzler’s responsive post read: “Well if you are proving you are just having fun, then you are. To find something sexist is to show you are the sexist. Perhaps the Girl Scouts should actually accomplish something, but alas they just sell cookies.”

Four motions were pending in Wenzler.  This blog focuses primarily on the motion for sanctions for alleged spoliation of text messages.  The court wrote that it “will deny the motion for sanctions because defendants did not lose any text messages related to Wenzler’s disenrollment when two government employees’ phones were reset upon their retirement.”[1]

The Coast Guard Auxiliary is organized under federal statute and members may be disenrolled “for cause.”  Wenzler held a leadership and management position.

The Auxiliary “received a complaint from a member of the public about LinkedIn posts that she perceived as sexist, racist, and inappropriate….”  While the poster was not fully identified, it was later determined by the Coast Guard Auxiliary that Wenzler made the posts.  An investigation followed and after a long chain of events, Wenzler was disenrolled.  He appealed.

The court wrote that Wenzler moved for sanctions under Fed.R.Civ.P. 37(e) “based on the alleged deletion of text messages from Gibson’s and Dooris’s work cellphones.”

So, who were Gibson and Dooris, and what happened?

Commander James Gibson was the director of Wenzel’s district. Among other things, he notified Wenzler of a temporary suspension and sent a notice of intent to impose disciplinary action for four alleged infractions.  He later notified Wenzler that he was disenrolled and notified him of his right to appeal.

Wenzler’s initial appeal of a temporary suspension was to Captain Matthew Dooris. Dooris notified Wenzler that the appeal was denied.  Additionally, the final appeal from Commander Gibson went to Captain Dooris.  Dooris notified Wenzler that his final appeal was denied for the same reasons that had been provided earlier and “Dooris also wrote that the prescribed disciplinary procedures had been followed, and that the decision was final.”  Wenzler made a number of allegations against the Captain, such as alleging that he mishandled Wenzler’s appeal.[2]

However, when Gibson and Dooris retired, their cell phones were reset and any texts were erased, leading to the sanctions motion.

The Wentzel court wrote:

I begin with the motion for sanctions. The basic rule is that Rule 37(e) authorizes an appropriate sanction for the loss of relevant electronically stored information, if the party failed to take reasonable steps to preserve it. See Fed. R. Civ. P. 37(e); Freidig v. Target Corp., 329 F.R.D. 199, 207 (W.D. Wis. 2018). Defendants acknowledge that, pursuant to Coast Guard policy, Gibson’s and Dooris’s work cellphones were reset to factory settings upon their retirement, which precludes retrieval of text messages from those devices…. But Gibson and Dooris say that, shortly after Wenzler brought this action, they searched their work cellphones in response to litigation holds for text messages related to Wenzler’s disenrollment, and that those searches revealed no related substantive text messages…. Gibson and Dooris also say that they relied on email and phone calls to have substantive communications related to the disenrollment…. The chief litigation coordinator, Brian Judge, says that he would not have expected Gibson or Dooris to have any substantive communication about the disenrollment by text message and that, had that occurred, he would have expected them to preserve the text messages pursuant to official policy…. There is no evidence that defendants lost any relevant text messages by restoring Gibson’s and Dooris’s phones to factory settings. I will deny the motion for sanctions. [Emphasis added].

As a result, Wentzel’s sanctions motion was denied.[3] Wenzel’s remaining motion to compel failed for both procedural and substantive reasons.

As to the cross-summary judgment motions on the Administrative Procedure Act claim, the court wrote:

In his social media posts, Wenzler misrepresented his position as “Branch Chief-Human Resources Directorate.” And he made disrespectful comments in which he: called Supreme Court Justices racists; called a girl scout sexist and mocked her for selling cookies; demeaned a social media user based on her occupation; and celebrated the cancer diagnosis and subsequent resignation of a university’s president-elect.

Summary judgment was granted for the Coast Guard on that issue:  “Gibson’s decision to disenroll Wenzler from the Auxiliary was not arbitrary and capricious and was supported by substantial evidence.”

Wenzler asserted that his social posts were protected by the First Amendment and that the disenrollment was retaliatory.  The court ruled: “The evidence shows that the Auxiliary’s interests in promoting effective and efficient public services outweighed any interest Wenzler had in making the LinkedIn posts….”

The court concluded that:

No reasonable juror could conclude that Wenzler’s LinkedIn posts were constitutionally protected. I will grant summary judgment to defendants on Wenzler’s retaliation claim. Because I have granted summary judgment to defendants on Wenzler’s APA and retaliation claims, the entire case will be dismissed.”

LinkedIn’s policy on “hateful and derogatory conduct” is posted at Hateful and derogatory content | LinkedIn Help.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

_____

[1] The court denied a motion to compel because Wenzel did not confer with defendants in good faith.  It also held that certain documents were privileged.

[2] The court later rejected these allegations on the merits and, alternatively, deemed them harmless.

[3] Cf. Trust Me:  Nothing in the Missing Video Would Have Helped You! (Sept. 10, 2024); Should Carl Little, Jr., Have Won His Appeal Challenging Denial of a Spoliation Instruction? (Dec. 26, 2022);  Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant (Aug 18, 2021); Fed.R.Civ.P. 37(e)(2)(if there is the requisite intent to deprive, a presumption may arise).

Judges for whom they’ve either drafted or are working on drafting articles of impeachment for are: U.S. District Judges John Bates of the District of Columbia, Paul Engelmayer of the Southern District of New York, Amir Ali of the District of Columbia and John McConnell Jr. of the District of Rhode Island.

They also listed seven other judges as “wanted,” including U.S. District Judges Brendan Hurson of the District of Maryland, Loren Alikhan of the District of Columbia, Joseph Laplante of the District of New Hampshire, Deborah Boardman of the District of Maryland, George O’Toole of the District of Massachusetts, Jeannette Vargas of the Southern District of New York and John Coughenour of the Western District of Washington.

The article states: “In response, Rep. Zoe Lofgren, D-Calif., a member of the House Judiciary Committee, wrote, ‘Impeaching judges over rulings is an unconstitutional power grab that shatters judicial independence,’ noting that if litigants don’t agree with a ruling, they can appeal.”

I have written several blogs making the same point plus noting the factual deficiencies in the impeachment efforts:

• Protecting the Judiciary –  Article of Impeachment:  “It’s Déjà vu All Over Again”[1]
• Protecting the Judiciary From Another Dangerous, Fact-Free Impeachment Demand
• Protecting the Judiciary and the Rule of Law – Frivolous Articles to Impeach Federal Judge Filed
• Protecting the Judiciary and the Rule of Law

In summary, each blog points out that the impeachment effort distorts the judicial rulings that were actually made.

Each of them echoes the Letter from Paul W. Grimm Regarding Threats and Attacks on Judges.

Recently, the Hon. Michael Posner wrote Opinion | A Judge Warns Against Growing Threats to Judges – The New York Times (Feb. 27, 2025).

While not focused on impeachment, Judge Posner wrote that protecting the Judiciary “is not a partisan issue.”  His Honor is correct.  As I wrote in a prior blog, it is a patriotic duty.  Judge Posner wrote that the “threats are also deeply unpatriotic.”

Judge Posner added:

Criticism is one thing, and I’ve expressed my share of it. As [Chief Justice Roberts’] report says, with admirable understatement: “It is not in the nature of judicial work to make everyone happy.” But physical threats and harassment, whether spat out directly or launched sideways, with a deniable wink or curled lip, are entirely different. Since judges are not going to be deterred or influenced by these tactics, attempts at intimidation are not only cowardly, but stupid.

He wrote:

As the chief justice also noted, “Public officials, too, regrettably have engaged in recent attempts to intimidate judges — for example, suggesting political bias in the judge’s adverse ruling without a credible basis.” He warned that “intemperance” in statements by our political leaders about judges “may prompt dangerous reactions by others.” No judge I know would remotely disagree with this. I certainly wouldn’t. [Emphasis added].

My blogs demonstrate the lack of a credible basis for impeachments.

Judge Posner wrote: “My concern is not so much where things are as it is where things sometimes seem to be heading. The existence of an independent judiciary is the difference between a free people and a tyranny.”  [Emphasis added].

His Honor put it succinctly:

Our tripartite Republic (thank you, James Madison) is classically described as a three-legged stool, with Congress, the president and the courts as its three supports. Break or badly damage one leg — say, the judiciary — and the country is in danger of toppling over onto its butt. [Emphasis added].

SUMMARY

In my opinion, the impeachment effort omits important facts that are set out in Judge Bates’ published decision.

The impeachment allegation is that Judge Bates, when ordering restoration of website information by federal agencies, failed to consider that they contain repugnant “information endorsing the castration of children….”  ICYMI: Rep. Ogles Files Articles of Impeachment Against Radical Activist Judge | Representative Ogles.

Judge Bates was called upon to interpret two federal statutes.  While the impeachment allegation addresses what purportedly was not considered, what did the Judge consider?

Based on the evidence filed in court, Judge Bates wrote: “Dr. Liou cannot effectively do her job to address a ‘time-sensitive’ Chlamydia outbreak that is happening now.” [Emphasis in original]. Six leading physicians groups, representing 600,000 physicians submitted evidence that the removed information is vital for real-time clinical decision-making in hospitals, clinics and emergency departments across the country.

Based on the evidence before him, His Honor determined that the removal of information from public websites was contrary to the federal statutes and was interfering with the delivery of important medical care to low-income families.

IF A JUDGE ERRS, THE REMEDY IS APPEAL, NOT IMPEACHMENT

In prior blogs about other impeachment efforts, I wrote:

Maybe the Judges’ rulings are right.  Maybe not.  But, let’s assume they’re not correct.  There is a remedy for incorrect judicial decisions.  It’s called an appeal.  Not impeachment.

See Protecting the Judiciary From Another Dangerous, Fact-Free Impeachment Demand – E-Discovery LLC and Protecting the Judiciary and the Rule of Law – Frivolous Articles to Impeach Federal Judge Filed – E-Discovery LLC.

Another recent blog agrees: “The problem [with impeaching these Judges] is that [the Judges] are not ‘violating the law’ but simply holding an opposing viewpoint on the law’s meaning. This is why we have appellate courts.”  Jonathan Turley, No, the GOP Should Not Impeach Federal Judges Over the Trump Challenges (Feb. 25, 2025)(Emphasis added).

So, let’s start with the facts.

THE ALLEGATIONS AGAINST JUDGE BATES

Rep. Ogles wrote: “We must protect our children from predators like Judge Bates….”  See ICYMI: Rep. Ogles Files Articles of Impeachment Against Radical Activist Judge | Representative Ogles (Emphasis added; see post on X @2:07 pm, 2/24/2025).  Rep. Ogles’ X post states:

His attempt to block President Trump’s order to remove webpages containing resources for “gender-affirming care” from government sites is appalling.

At no point in American history has the judiciary considered the surgical or chemical castration of healthy children to be a compelling or even legitimate health concern and it shouldn’t start now.

In her article, Ms. Monyak summarized the background:

In a resolution posted on X on Monday, Rep. Andy Ogles (R-Tenn.) claimed Senior Judge John Bates of the US District Court for the District of Columbia engaged in misconduct and promoted a “grave moral evil” by ordering health agencies to restore certain webpages with health information and datasets.

The webpages were taken down under Donald Trump’s executive order to remove any agency statements that “promote or otherwise inculcate gender ideology.”

Ogles said in the impeachment resolution that Bates “failed to consider” that these webpages contained information about gender-affirming care, and “at no time in the history of the American judicial system, until very recently, would judges have considered the purposeful damage to the bodies of healthy young men and women to be a compelling or even legitimate health concern.”

A report in The Hill stated that: “The article of impeachment says U.S. District Judge John Bates’s conduct in the case was ‘so utterly lacking in intellectual honesty and basic integrity that he is guilty of high crimes and misdemeanors.’”  Zach Schonfeld, Republican files article of impeachment against judge who ordered agencies to restore scrubbed data (Feb. 24, 2025).

Rep. Ogles’ article of impeachment charges:

Judge Bates failed to consider that these [removed] webpages maintained informational resources on gender affirming care – better described as the intentional surgical or chemical castration of children – and that at no time in the history of the American judicial system, until very recently, would judges have considered the purposeful damage to the bodies of healthy young men and women to be a compelling or even legitimate health concern.

What did Judge Bates consider and decide?

JUDGE BATES’ PUBLISHED DECISION

Judge Bates’ 37-page published opinion is available for all to read.  Drs. for Am. v. Off. of Pers. Mgmt., __ F. Supp. 3d __, No. CV 25-322 (JDB), 2025 WL 452707 (D.D.C. Feb. 11, 2025).

Doctors for America (“DFA”) sued and moved “to temporarily restrain three agencies of the United States government from further removing or modifying health-related webpages and datasets—and to compel them to restore webpages and datasets that they have already removed or modified—because DFA and its members (physicians, medical trainees, and other health care professionals) use the webpages regularly in treating patients and conducting research.”

The claims were based on two federal statutes – the Administrative Procedures Act (“APA”) and the Paperwork Reduction Act (“PRA”).  It is, of course, routine for federal judges to be called upon to apply federal statutes to federal agency actions.  That is what Judge Bates did.  In other words, His Honor did his job.[2]

I am not going to go into all of the facts in detail.  One allegation was that removal of the web information interfered with physicians’ activities.

Judge Bates wrote: “The record explains that the removed webpages contained information and datasets that ‘guide medical practice, are essential to groundbreaking public health research, and are key to preventing disease outbreaks.’”  [Emphasis added].

For example, Judge Bates described the following evidence that was before His Honor:

Dr. Liou works at a clinic “serving predominately low-income immigrant families in southwest Chicago” and “at one of the most underserved high schools in Chicago.” Liou Decl. ¶¶ 1, 3. In her clinical work, she “regularly rel[ies]” on information the CDC publishes. Id. ¶ 3. And for Dr. Liou, access to that information is both routine and time-sensitive. For instance, until the websites went dark, Dr. Liou would have consulted CDC resources to combat a recent Chlamydia outbreak in her high school and to step up still-ongoing “efforts around STI testing and prevention” to ensure the outbreak doesn’t recur. Id. ¶ 7. Because Dr. Liou “rel[ies] on [CDC] resources daily,” their disappearance has “caused a huge disruption in [her] work. [Emphasis added].

Judge Bates wrote that the harm Dr. Liou suffered “is neither hypothetical nor far off. The high school ‘recently had an outbreak of Chlamydia,’ and now that she is ‘without the crucial CDC resources,’ she is ‘not able to do her job to help address this urgent situation.’” [Quotation cleaned up].

The Judge concluded that: “Dr. Liou cannot effectively do her job to address a ‘time-sensitive’ Chlamydia outbreak that is happening now.” [Emphasis in original]. In connection with the request for immediate relief, Judge Bates wrote:

No amount of money or other legal relief could remedy the fact that Dr. Liou was unable to work effectively on containing and shortening that outbreak.

His Honor wrote that the Paperwork Reduction Act – a federal statute passed by Congress – requires timely and equitable public access to an agency’s public information and that agencies must provide adequate notice when terminating dissemination.  Judge Bates wrote that the APA – another federal law – provides for judicial review of final agency action.

Judge Bates was enforcing acts of Congress – the same body in which Rep. Ogles sits.

His Honor recited standard principles governing standing and the grant or denial of a motion for a temporary restraining order.  Describing the evidence, Judge Bates wrote:

Or to reach even further, take the statement from six leading physician groups, which together represent more than 600,000 physicians. See Statement from Leading Physician Groups on Removal of Data and Guidance from Federal Websites [ECF No. 8-3]. As these groups attest, the lost materials are more than “academic references—they are vital for real-time clinical decision-making in hospitals, clinics and emergency departments across the country.” Id. Without them, health care providers and researchers are left “without up-to-date recommendations on managing infectious diseases, public health threats, essential preventive care and chronic conditions.” Id. And so the groups call restoring the webpages “a public health imperative.” Id.

Finally, it bears emphasizing who ultimately bears the harm of defendants’ actions: everyday Americans, and most acutely, underprivileged Americans, seeking healthcare. These individuals rely on the care of doctors like Liou and Ramachandran. If those doctors cannot provide these individuals the care they need (and deserve) within the scheduled and often limited time frame, there is a chance that some individuals will not receive treatment, including for severe, life-threatening conditions. The public thus has a strong interest in avoiding these serious injuries to the public health. [Emphasis added].

And, what did Judge Bates order?  His Honor ordered restoration of webpages and datasets, as well as a status report.

A final decision will be appealable; however, it is not impeachable.[3]

UPDATE 3/1/2025:

Judge Bates also issued a decision in Amer. Fed. of Labor and Congress of Industrial Organizations v. Dept. of Labor, __ F. Supp. 3d __, 2025 WL 542825 (D. D. C. Feb. 14, 2025).

In that case, labor unions, a think tank, and two nonprofits moved for a TRO against several agencies to restrain them from providing DOGE personnel access to records systems containing personal information.

As it said previously, the Court has serious concerns about the privacy concerns raised by this case, and those concerns are all the graver now that the data includes information on all Americans who rely on Medicare and Medicaid, as well as countless consumers. However, on the record before it, the Court does not conclude that plaintiffs are entitled to the extraordinary relief of a temporary restraining order. [Emphasis added].

The decision was grounded in several statutes, including the federal Privacy Act of 1974, a “novel and complex” issue under the Economy Act. Of 1932, and the Administrative Procedure Act.  Judge Bates wrote: “In the end, plaintiffs fail to show that any of their claims are likely to succeed on the merits, at least on this record.  The Court thus denies their renewed motion for a TRO.”  His Honor entered a schedule for prompt resolution.  2025 WL 556325 (Feb. 19, 2025)(“ Although it will entertain plaintiffs’ motion for expedited discovery, the Court concludes that the prospect of discovery does not preclude defendants from taking their desired next step as well. Defendants may file a motion to dismiss, and if the Court determines the resolution of the motion doesn’t turn on factual issues implicated in any ongoing discovery, the Court may resolve the motion before plaintiffs file their preliminary-injunction motion.”).

UPDATE: See S. Monyak and J. Thomsen, Judiciary Tells Judges, Staff to Ignore Email to Explain Work (Feb. 23, 2025)(“The emails to judges and federal court employees could represent an improper intrusion into the judiciary by the executive branch, in breach of the Constitution’s mandated separation of powers.”).

____

[1] The quote is attributed to Yogi Berra.

[2] In federal courts, cases are assigned to judges.  Judges don’t pick them.

[3] Judge Bates’ decision was favorably cited in State v. Musk, No. 25-CV-429 (TSC), 2025 WL 520583, at *3 (D.D.C. Feb. 18, 2025).

A woman’s right to terminate a pregnancy is one of the most divisive issues in this country. Although abortion is a protected right in Maryland and a common event in many women’s lives, it is highly stigmatized. In this case, we must consider whether evidence of a criminal defendant’s internet searches on abortion in the early months of her pregnancy was relevant to show her intent to kill or harm her newborn several months later at birth, or, if marginally relevant, unfairly prejudicial.

For background on the lower court’s decision, see Admissibility of Internet Searches About Terminating Pregnancy – E-Discovery LLC (Jun. 5, 2024).

Ms. Akers contended that the baby was stillborn. However, she was convicted of child abuse and second-degree murder.

In the intermediate appellate court, there were three key issues: 1) admissibility of a forensic test to show the baby was born alive; 2) admissibility of internet searches for abortion information, at a stage when abortion was legal, to show intent to kill the baby after birth; and, 3) admissibility of foregoing prenatal care to show intent to harm or kill the baby after birth.

The intermediate appellate court affirmed the conviction in an unreported decision that was expressly confined to its tragic facts.  The Supreme Court of Maryland reversed and remanded for trial.

This blog addresses the issue of admissibility of electronically stored information – – here, internet searches – – under the Maryland evidentiary rules.  Under Akers, the two presented issues were relevance and whether any probative value is sufficiently outweighed by the danger of unfair prejudice.  The Supreme Court extensively discussed and applied the two characteristics of relevance analysis. Authentication was not an issue in Akers.

The tragic factual predicate began, in the Supreme Court’s words, as follows:

The State of Maryland charged Petitioner, Moira E. Akers, in the Circuit Court for Howard County with murder and child abuse resulting in the death of her newborn. The charges arose in connection with Ms. Akers’ at-home delivery of the baby without her husband’s knowledge that she was pregnant at the time. Ms. Akers was the sole witness to the delivery. Ms. Akers maintains that the baby was stillborn, and the State contends that the baby died of asphyxiation at Ms. Akers’ hands.

The Court explained the electronically stored information that was admitted into evidence:

Upon discovering the infant’s body in the closet, the police immediately treated the Akers’ house as a crime scene….  Police took Ms. Akers’ cellphone and, upon inspection of the search history, discovered the self-help termination searches, which had occurred between six and eight months before the delivery.

The Akers Court wrote that the cell phone extraction reports showed a series of searches “during the time period in which Ms. Akers could have lawfully terminated her pregnancy:

• March 4, 2018: ‘rue tea for abortion’
• March 4, 2018: ‘does rue extract cause you to miscarry’
• March 4, 2018: ‘over the counter pills that cause miscarriage’
• March 8, 2018: ‘miscarriage at 7 weeks’
• March 8, 2018: ‘miscarriage at 7 weeks do i need a d&c’
• May 4, 2018: ‘how to treat ectopic pregnancy naturally’
• May 4, 2018: ‘how to end a ectopic pregnancy’”

The Akers Court wrote that: “Additional searches included ‘planned parenthood,’ ‘scheduling an abortion,’ and a search for ‘Misoprostol in Midtrimester Termination of Pregnancy: Oral and Vaginal in of’ on eBay. Ms. Akers also visited a website titled ‘woman resort to over-the-counter remedies to end pregnancy’ on March 14, 2018.”  The baby was delivered on November 1, 2018. Id. at *2.

In addition to the internet searches, the prosecutor also argued that Ms. Akers’ delay in seeking prenatal care was probative of intent. Because that is not an issue of electronically stored information, this blog does not address it.[1]

The internet search evidence was challenged in the trial court:

Before trial, Ms. Akers filed a motion in limine asking the circuit court to exclude evidence about the termination searches and her lack of prenatal care as irrelevant and unfairly prejudicial. Ms. Akers pointed out that Maryland law prohibits the State from interfering with a woman’s decision to abort a non-viable fetus. Ms. Akers also argued that the State could not prove guilt by introducing evidence that a person was contemplating exercising a constitutionally protected right. Regarding forgoing obstetric prenatal care, Ms. Akers argued that there is no legal obligation to seek prenatal care and that a pregnant woman cannot be prosecuted for failure to act with regard to her own fetus.

The prosecutor argued:

We must prove, Your Honor, that the Defendant intended to kill her baby. And to prove the child abuse, we must prove that the Defendant caused serious injury or death and that it was intentional, either to commit the acts of abuse or failure to act. The fact that she was seeking to end her pregnancy is most highly relevant to proving her intent to kill the baby once it was born, and her intentional failure to obtain care for her child after the child was born.

Because Ms. Akers denied pregnancy to her husband and medical personnel, the prosecutor also argued that the searches were relevant to credibility.

The trial court denied Ms. Akers’ motion in limine, stating that “both the researching the abortion issue and the lack of prenatal care, once the Defendant understands that she is expecting, are relevant to the issue of intent that the State’s required to prove for their suggestion that it was a killing.” Also, the trial judge “[did] not find that its prejudicial effect outweighs its probative value.”

The Supreme Court wrote: “After admitting the [two cell phone] extraction reports [containing a 15-page list of web and browser history] into evidence over defense counsel’s objection, the trial court allowed Detective Lapier to summarize[2] the searches for the jury.” The decision states that:  “Detective Lapier read into the record the search terms that were identified on the exhibits.”

In closing, the prosecutor argued:

Perfect, beautiful Baby Boy Akers was born and died on November 1st, 2018. He lived only a few moments, taking a few breaths, before his mother, the defendant, snuffed out his life. Why? Because she didn’t want another child. She wanted to terminate this pregnancy and when she chose not to, she took matters into her own hands upon his birth that afternoon[,] at around 3:30 on November 1st of 2018…. She had a plan to terminate the baby.

The issue on review was:

This Court granted certiorari to determine whether evidence of Ms. Akers’ internet searches about terminating a pregnancy during a period in which she would be able to legally obtain an abortion in this State and her decision to forgo prenatal care are irrelevant to an intent to kill or harm a newborn at birth, or, if marginally relevant, unfairly prejudicial.

The holding was:

We hold that the internet searches are irrelevant and that the trial court erred as a matter of law in admitting them. We similarly hold that Ms. Akers’ bare decision to forgo prenatal care was not probative of motive or an intent to kill or harm a live child….  In light of our holding on the inadmissibility of the abortion searches, we reverse the judgment of the Appellate Court and remand this case to the circuit court for a new trial.

The Supreme Court of Maryland noted two issues: 1) relevance; and, 2) whether the probative value was outweighed by the danger of unfair prejudice or other factors under Md. Rule 5-403.  Id. at *9-10.  It decided the appeal regarding internet searches on the first.  In doing so, it provided an extensive discussion of the two characteristics of relevant evidence. Id. at 10-11.

As to relevance:

Ms. Akers contends that evidence of her internet searches about terminating her pregnancy between six and nearly eight months before delivery have no logical connection to an intent to kill or harm a newborn at birth. Nor, according to Ms. Akers, does her contemplation of a protected right to terminate a pregnancy during the period in question make the later existence of a specific intent to kill the newborn or an adoption plan more or less probable. Ms. Akers asserts that a woman’s consideration of an abortion is neither contemplation of murder at birth nor impeachment of her desire to put a baby up for adoption once it is born. Additionally, Ms. Akers argues that, even if the abortion searches were relevant, the prejudicial effect of this highly inflammatory evidence far exceeded any probative value.

The Court’s extensive and important discussion of reproductive rights is not an electronic discovery issue.  For present purposes — admissibility of electronically stored evidence – – the Akers Court wrote:

Ms. Akers had a constitutionally and statutorily protected right to search for information on how to terminate her pregnancy, including searching for options on how to terminate the pregnancy through self-managed care. The record clearly reflects that the prosecutor intended to, and did, in fact, link Ms. Akers’ exercise of her right to contemplate the termination of her pregnancy with an intent to kill a newborn upon the delivery many months later.

The Court held as follows:

We hold that Ms. Akers’ termination searches months before she gave birth fail to meet the basic threshold for admissibility. The termination searches were not probative of an intent to kill or harm a baby at delivery many months later. Ms. Akers’ contemplation of a protected right to terminate a pregnancy many months prior does not make the later existence of a specific intent to kill or harm a newborn more or less probable. Simply put, the predicate fact—lawfully contemplating the termination of a pregnancy—does not support the inferences advanced by the State—an intent, plan, or motive to kill or harm a person. The State’s argument begs the question of how Ms. Akers’ internet searches made it more likely that she had a homicidal intent toward a living newborn, unless one assumes that a person who researches abortion options is more likely to commit murder or harm a person.

The Supreme Court also stated: “Finally, the termination searches were not relevant to the collateral issue of Ms. Akers’ credibility.”

The Akers Court wrote:

In conclusion, we hold that the evidence that Ms. Akers contemplated terminating her pregnancy by conducting internet searches between six and nearly eight months prior to delivery was irrelevant, and therefore inadmissible. The termination searches were not probative of motive or intent to kill or harm a child. The predicate fact—lawfully contemplating the termination of a pregnancy—does not support the inferences advanced by the State—an intent, plan, or motive to kill or harm a person.

We similarly hold that, on these facts, evidence of Ms. Akers’ bare decision to forgo prenatal care was not probative of motive or intent to kill or harm a live child. Women forgo prenatal care for a variety of reasons, and without more, the failure to obtain such care is too speculative, ambiguous, and equivocal to support an inference that a woman would be more likely to harm a live child or prevent a live child’s access to medical care if such care was necessary. To the extent that the State has argued before this Court that Ms. Akers’ disparate prenatal care is relevant, given that this argument has been made for the first time before this Court, we decline to address it. Although we cannot say that a lack of prenatal care will never be relevant to any material issue, when presented with such evidence, a trial judge should examine the evidence very closely, including the reasons that the State seeks its admission, as well as any adverse immaterial inferences arising from gender stereotypes and implicit biases, and carefully weigh any probative value against the potential prejudicial and inflammatory effects.

We therefore reverse the judgment of the Appellate Court with instructions to that court to remand this case to the circuit court for a new trial.

There were concurring and dissenting opinions.  The dissent wrote in part:

A strong desire not to have another child—one that lasts from the beginning of the pregnancy until the moment of birth—is a motive to kill a newborn. Not wanting another child is also a reason to have an abortion. If a pregnant woman does not want another child, both an abortion and killing the newborn are means to the same end, albeit radically different means with different legal implications. When the abortion option is no longer available, and the pregnant woman perceives a continuing need to keep her pregnancy secret from everyone, including her husband, and she perceives no viable alternative due to real or perceived stigmas and disapproval by family members, then killing the baby immediately upon its birth becomes more probable. This is particularly so where the pregnant mother’s hope that the pregnancy will terminate on its own—abetted by the conscious decision to forgo prenatal care—is dashed.

To be admissible, social media evidence must be authentic, relevant, and its probative value must not be outweighed by the danger of unfair prejudice.  The Maryland Supreme Court has addressed a number of issues involving admissibility of social media.  “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media (May 12, 2020).

____

[1] The Court wrote that: “We hold that evidence that a woman has forgone prenatal care, by itself, is ordinarily irrelevant to an intent to kill or harm a live baby at birth. It is too ambiguous, speculative, and equivocal to infer that a woman who forgoes prenatal care while pregnant is more likely to kill or harm a live human being. Women forgo prenatal care for a host of reasons that do not involve criminal conduct.”  It added: “Before leaving this topic, we reiterate the concern we expressed in Kilmon over the potential for state policing and prosecution of pregnant women for their conduct, including drawing incriminating inferences from said conduct.”

[2] As to summarization of ESI, see Is a “Composite” Video Admissible and Can a Police Officer “Narrate” It at Trial? – Part 2 of 2 – E-Discovery LLC (Sep. 1, 2024).

I described the underlying issue in Possession, Custody, or Control of Responsive Information by States Suing Meta (Sept. 12, 2024), discussing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 4125618 (N.D. Cal. 2024).

The States and State Attorneys General “object[ed] to treating their respective state agencies as being subject to party discovery and insist[ed] that all of these agencies are third parties from whom Meta should seek documents by subpoenas under Federal Rule of Civil Procedure 45.”  Meta responded that Rule 34 requests were proper and it should not be forced to serve over 200 subpoenas under Rule 45.  The court applied the “legal right” test for what was in the litigants’ possession, custody and control under Fed.R.Civ.P.34.  The court wrote: “In all thirty-two cases, the State itself is a party to the suit. Courts have found that discovery obligations extend to other government agencies even if they are non-parties based on the recognition that the State (or the government as a whole) is essentially the real party in interest and thus the discovery obligation extends to the entire government.”  Id. at *10.

Mr. Poritz describes a subsequent hearing, writing:

The federal judge overseeing a lawsuit by dozens of state attorneys general against Meta Platforms Inc. accusing it of addicting adolescent users threatened to hold state agencies in contempt for failing to produce documents needed for the case.

“I do not take lightly anybody’s failure to comply with federal court orders,” Judge Yvonne Gonzalez Rogers said at a Friday hearing in Oakland, Calif. “Something will happen, I don’t know what. But I guarantee you I will not let this stand.”

The Bloomberg Law article continues, stating:

At the Friday hearing, Rogers said that even if the states are concerned that Meta’s document requests are overly broad, that doesn’t mean they can refuse to do anything. The appropriate response is to go to the magistrate judge and ask to narrow the scope of discovery, she said.

“Refusing to comply with a court order is not the appropriate response,” Rogers said. “They’ll have to deal with that, or I’ll throw you out of the case, or I’ll issue contempt. I have lots of options available to me and I will not hesitate to use them.”

However, according to the article:

Emily Kalanithi, a lawyer for the California AG’s office, said the decision to not produce documents isn’t out of a lack of respect for the rule of law. Instead, there are “very real sovereignty issues that are at play with the federal court order and California precedent.”

I described the general governing principle in Is a Court-Ordered ESI Protocol a Trap?, quoting Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024):

So, here is the deal with a court order, especially one that you stipulated to. It’s an order, so you have to comply with it. If you learn new information that makes it seem like it will be difficult or impossible for you to comply with the order, then you should move to modify the order with reasonable diligence, explaining why the order has become difficult or impossible for you to comply with. You might win your motion, or you might lose, depending on how good your argument is. But that’s what you’re supposed to do if you find yourself in that situation. What you’re not supposed to do is pretend like the order doesn’t exist, or pretend that your violations are somehow a form of compliance, and then hope your opponent doesn’t point out what you’re doing.

That blog cites Heath v. Vill. of Cent. City, Illinois,  2024 WL 3012370, at *3 (S.D. Ill. June 14, 2024), where the court criticized a litigant’s failure to seek relief from a court order, stating: “They did not seek an extension of the time to comply with the Discovery Order, which the Court likely would have freely given. Instead, they now seek a finding of good cause and excusable neglect under Rule 6(b). In other words, as the old adage goes, Defendants choose to seek forgiveness rather than permission. This was a miscalculation. The Court cannot ignore that Defendants’ dithering has now resulted in both a stall of discovery and disobedience, at some level that may still need to be determined, of the Court’s Discovery Order.” [emphasis added].

In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation presents important substantive and discovery issues.  It will be interesting to see how they are resolved.

According to the Baltimore Sun, “[r]eport authors called on Congress to pass federal privacy legislation to protect users.”  I recently blogged about a similar issue in Data Collection by Cars With Connectivity (Sept. 17, 2024)(discussing calls for federal privacy legislation regarding use of data collected by automobiles).

The FTC Staff Report Finds Large Social Media and Video Streaming Companies Have Engaged in Vast Surveillance of Users with Lax Privacy Controls and Inadequate Safeguards for Kids and Teens | Federal Trade Commission (Sept. 19, 2024).

The FTC report states that social media and video streaming services “engaged in vast surveillance of consumers in order to monetize their personal information while failing to adequately protect users online, especially children and teens.”  Id.  FTC chair Lina M. Khan stated that the data is worth billions of dollars annually.  Targeted advertising accounts for most of the revenue. Id.

“The report found that the companies collected and could indefinitely retain troves of data, including information from data brokers, and about both users and non-users of their platforms. The staff report further highlights that many companies engaged in broad data sharing that raises serious concerns regarding the adequacy of the companies’ data handling controls and oversight.”  Id.

“The report found that users and non-users had little or no way to opt out of how their data was used by these automated systems….”  Id.  It made a number of recommendations. Id.

The report is posted at A Look Behind the Screens: Examining the Data Practices of Social Media and Video Streaming Services (ftc.gov)(Sept. 2024).

The Preface states that the report “shows how the tech industry’s monetization of personal data has created a market for commercial surveillance, especially via social media and video streaming services, with inadequate guardrails to protect consumers.  The report finds that these Companies engaged in mass data collection of their users and – in some cases – non-users.  It reveals that many Companies failed to implement adequate safeguards against privacy risks.  It sheds light on how Companies used our personal data, from serving hyper-granular targeted advertisements to powering algorithms that shape the content we see, often with the goal of keeping us hooked on using the service.  And it finds that these practices pose unique risks to children and teens, with the Companies having done little to respond effectively to the documented concerns that policymakers, psychologists, and parents have expressed over young people’s physical and mental wellbeing.”

The FTC’s Report also concludes that:

The Status Quo Is Unacceptable: The amount of data collected by large tech companies is simply staggering. They track what we read, what websites we visit, whether we are married and have children, our educational level and income bracket, our location, our purchasing habits, our personal interests, and in some cases even our health conditions and religious faith. They track what we do on and off their platforms, often combining their own information with enormous data sets purchased through the largely unregulated consumer data market. And large firms are increasingly relying on hidden pixels and similar technologies – embedded on other websites – to track our behavior down to each click. In fact, the Companies collected so much data that in response to the Commission’s questions, they often could not even identify all the data points they collected or all of the third parties they shared that data with.

The report leaves no doubt that without significant action, the commercial surveillance ecosystem will only get worse.  Our privacy cannot be the price we pay to accomplish ordinary basic daily activities, and responsible data practices should not put a business at a competitive disadvantage.

The full scope of the findings and recommendations is beyond the reach of this blog.  Suffice it to say that the FTC determined that the companies’ “data practices posed risks to users’ and non-users’ data privacy and the Companies’ data collection, minimization, and retention practices were inadequate….” It adds that “[c]hildren and teens are a uniquely vulnerable population, but the Companies’ policies have failed to adequately protect them—this is especially true of teens….”

For blogs on  In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293 (N.D. Cal. Feb. 20, 2024), see An Epilog:  4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 10, 2024). In that litigation, plaintiffs allege that “defendants target children as a core market and designed their platforms to appeal to and addict them.”  In re Soc. Media Adolescent Addiction, 2023 WL 7524912, at *2.

Paul cites to the applicable Maryland Rules and wrote that: “In State v. Swinton 847 A2d 921 (2004), the court enunciated six factors for the authentication of computer-enhanced evidence: the computer equipment is standard and competent and in good working order; qualified computer operators were employed; proper procedures were followed in the input and output of information; a reliable software program was utilized; the equipment was programmed and operated correctly; and the exhibit is properly identified as the output in question.”

Paul’s excellent article provides a mock examination showing how to authenticate a computer printout of records.

I have addressed authentication in a number of blogs:

• Can a witness authenticate a video if the video contains images that the witness did not see?
• “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media
• Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence
• The “Silent Witness” Theory of Authentication of Video Evidence
• Authentication of ESI on Motion Compelling Arbitration Despite Factual Dispute
• Authentication of a Disputed Email and Attachment
• Turtle and Tourist Photos Were Insufficient to Authenticate Texts in Criminal Case
• Authentication of Disputed Signature by Description of Information Governance Policy
• Two Recent Maryland Decisions on Authentication of Text Messages
• Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104

One of the best solutions is to cooperate.  ESI may be authenticated by agreement, such as a stipulation, and it is a topic that should be addressed in a Fed.R.Civ.P. 26(f) conference and “ESI Protocol” or discovery plan.  See “ESI Protocol” v. “Discovery Plan”

Paul’s article concludes: “As you prepare for trial, it is essential to select the correct method for authenticating exhibits at trial, and to ask the correct questions to convince the court to accept the exhibits.”