Sometimes, I really wonder about attorneys and judges. Not wonder in the sense of awe, but wonder why they often make their lives more confusing and more difficult than necessary. In no area is my wonderment greater than in the arena of e-discovery and, more importantly, the issues relating to the discovery of social media.
Various mentors of mine, in and outside the legal profession, taught me that you shouldn’t make things more complicated than necessary and that common sense is equally important. Yet when it comes to the admissibility of evidence obtained from social media websites, all such truisms seem to be ignored.
What do I mean?
Take a look at Fed.R.Evid. 401, which says that “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” In other words, is the information going to help the jury or judge when they are called upon to decide the case? That’s what relevance is.
So where does that leave us with social media? To some commentators, the mere existence of a Facebook page is reason enough to begin a blind scavenger hunt for incriminating or damning evidence about a party or a witness. That analysis is like saying that because someone goes to a restaurant that serves beer, they must be an alcoholic. It’s just not true, and no judge would ever allow evidence that because a witness or party ate dinner at a bar it means that he was drunk. Similarly, just because someone has a Facebook page doesn’t mean that she is telling the world that she really wasn’t injured in the accident at issue in the lawsuit. There needs to be more. And what is the standard? The same one used for all other evidence: relevance.
Ah, but it’s electronic, you say. And I say, so what? Does the fact that a person has a MySpace page automatically mean that he or she has suddenly decided to invite the world into a home to know every intimate detail of their lives? Of course not. Yet, to hear some zealous lawyers argue, social media equals irresponsibility. It can, but it doesn’t have to.
So what is the standard for admissibility of social media evidence? Again, let’s look at the Notes to Rule 403:
Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Does the item of evidence tend to prove the matter sought to be proved? Whether the relationship exists depends upon principles evolved by experience or science, applied logically to the situation at hand. …
So where does this leave practitioners? Do they ignore all of the decisions of state and federal courts relating to social media? Of course not, lawyers need to follow the law and precedent that apply to their cases. But that doesn’t mean that the only way to proceed is with grandiose arguments.
If the only thing on a Facebook page is the owner’s name, and basic (boring) information, then it’s not going to be admissible at trial. On the other hand, if the person is a proud belly dancer, then you might have following result, taken verbatim from B.M. vs. D.M., 2011 NY Slip Op 50570U; 2011 N.Y. Misc. LEXIS 1534 (2011) (citations and citations to the record omitted):
Notwithstanding her claim that she is totally disabled, unable to work in any capacity, and rarely leaves home because she is in too much pain, Wife admits she started belly dancing in 2007. Wife’s belly dancing was brought to this Court’s attention in February 2009 when Husband attached a series of Wife’s internet blogs as exhibits to motion papers. At trial, Wife incredibly testified that she stopped belly dancing in 2008, notwithstanding her own blogs which reveal otherwise. Wife further incredibly testified that she took belly dancing classes only once per week. Her claim in this regard is further disputed by her own blogs.
Wife positively identified the contents of her blogs at this trial. Wife indicated that she used the screen name [REDACTED] on websites tribe.net, facebook.com, and myspace.com. Wife further admitted that the contents of what she posted on the internet was true. The following are excerpts from Wife’s blogs from 2006-2007 (three to four years after Wife’s surgery):
Take a look at the latest photos in my album of me dancing. This was Soul Fire on May 11, 2007 at Chapel of Sacred Mirrors…an event I dance at monthly.
I belly danced the majority of the day away even though my legs are sore… Any who you all know what happens when I belly dance my day away I start to channel the other side and then I get to pass along what the angels are saying to this world of course with my own little dark personality added to it.
My belly dancing is the reason why I adore myself so much…that comes from hours of dancing and classes…When I start belly dancing as a career and when I dance my first performance on stage…
I’ve been dancing alone, everyday for three years, I decided on my birthday that it was time to dedicate myself to my passion. Classes twice a week…On December 2nd I’m being given a chance to perform with a troupe, I’m not sure I’m ready for the stage yet.
I’ve come a long way…I had to learn to walk all over again, like a baby. Today I danced a choreographed dance across a studio floor, who woulda thought?
Today I decided to dedicate myself more to my dance…even though I dance everyday, it’s not enough…it won’t be enough until I dance for you all, until you feel my euphoria”.
It’s been a three and a half year journey of realigning my spine (and hardware), body, mind and spirit with belly dancing for me. Today as I danced myself silly, I lifted my head and elongated my neck…as I swirled around…And then it happened, I got really, really high”.
Wife also posted the following comments on her Facebook page in 2010:
“I’m experiencing my first fun gig…I’m going to be nervous as hell when its show time, but I know my sisters and I will ease each other through it. It’s my first on stage solo :::knees knocking:::, then I’m joined by 6 priestesses.”
I’m spinning!! I’m spinning!! I’m able to keep a slow steady spin without wanting to fall over or bang into a wall!! This is big for me girls!! All these years all I could do was about 3 spins get dizzy and the giggles.
The statements made by Wife on her blog pages are relevant to Wife’s testimony respecting the effect the Accident has had on her life and her resulting demand for non-durational maintenance. Any statement or act by the defendant, which is contrary to the defendant’s interest, may be received as an admission when offered by the plaintiff. Here, these admissions posted by Wife contradict her claims that she is unable to work due to injuries sustained in the Accident, rarely leaves home, and socializes only once per month.
Sometimes, relevance is really obvious.