As part of our periodic practice, we are checking in on the reported cases involving social media evidence for this past month of January. A quick tally identifies 74 cases where social media evidence played a key role last month, which continues the trend we saw with a significant upsurge in such cases in the second half of 2013. One interesting development for January involved separate cases of misconduct on the part of a judge and a prosecutor, respectively. Below is a brief synopsis of five of the more notable January cases. While improper juror social media use is a common occurrence in the cases we monitor, the first two of the five highlighted January cases involved judicial and prosecutorial misconduct allegations from their Facebook activities:
Chace v. Loisel (Florida Court of Appeal, Jan. 24, 2014) 2014 WL 258620
In this Florida divorce case, the judge presiding over the matter sought to “friend” one of the parties, Sandra Chace, who had filed for divorce from her husband. The judicial friend request came prior to the final ruling in the martial dissolution proceeding. Upon advice of counsel, Chace declined to respond to the invitation. Thereafter, the court entered a final judgment of dissolution, with terms that Chace believed were highly unfavorable to her. Following entry of the final judgment, Chace filed a formal complaint against the judge, alleging that the court sent her a Facebook “friend” request and then retaliated against her after she did not accept the request. Chace also filed a motion with the judge for him to be disqualified, which was summarily denied.
Chace appealed the denial of the disqualification motion and the Florida appellate court granted the appeal, disqualified the judge and remanded for further hearings to address the previous rulings, which were arguably tainted. The appellate court explained as follows: “The trial judge’s efforts to initiate ex parte communications with a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge’s neutrality. The appearance of partiality must be avoided. It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case.”
People v. Armstrong (California Court of Appeal, Jan. 13, 2014) 2014 WL 125939
After Defendant’s conviction for numerous crimes related to domestic violence against his wife, he sought reversal of judgment, alleging prosecutorial misconduct. Shortly before trial, and on the day the trial court ordered the prosecutor to make its key witness, a minor, available for an interview with defense counsel, the prosecutor posted the following comment on her Facebook page: “After I spent the day trying to prevent my 13 year-old star witness from being kidnapped, I found out I am getting the Prosecutor of the Year award from the Victims Service Center.”
The court, which characterized the Prosecutor’s Facebook post as “an incredible display of poor judgment” determined that the post appeared to violate Rule 5–120 of the California Rules of Professional Conduct, which prohibits members of the bar from making extrajudicial statements when “the member knows or reasonably should know that [the extrajudicial statement] will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” The prosecutor’s Facebook musings about her key witness presented a substantial likelihood, according to the court, of prejudicing the matter if any juror learned of the comment. However, even though the court admonished the prosecutor for her “foolishness,” the court found no prejudice actually occurred in this instance, thereby not justifying a mistrial.
Rodriguez v. Bank of America (U.S. Dist. Ct., Texas, Jan. 28, 2014) 2014 WL 309065
Plaintiff brought a mortgage-related lawsuit against a major lender for wrongful foreclosure and deceptive trade practices. In opposing Defendant’s summary judgment motion, Plaintiff submitted the LinkedIn profile of the bank employee who signed the deed of trust that conveyed Plaintiff’s mortgage to Countrywide Home Loans, the foreclosing bank. The LinkedIn profile reflected that the employee was not employed by Countrywide, but by another bank at the time the mortgage instrument was signed. However, the district court disallowed the LinkedIn evidence, without significant comment, on the grounds that the Plaintiff failed to properly authenticate the LinkedIn profile.
United States v. Sheikh (U.S. Dist, Ct., North Carolina, Jan. 10, 2014) 2014 WL 6050324
The Government charged Defendant with attempting to provide material support to a terrorist organization, and the Defendant sought a bail hearing for release prior to his trial. Defendant’s social media postings and activity formed the bulk of the evidence cited at the hearing. Specifically, a FBI agent presented Facebook postings reflecting “that the defendant is comfortable with extreme violence.” Additionally, an undercover FBI agent engaged in conversations with the defendant, where he asserted that he held the al-Nusrah group in high esteem, that he was aware of their terrorist activity and wished to join them and “die a martyr.” In denying bail and pre-trial release, the court citied the Defendant inflammatory social media postings and communications as key evidence.
CrossFit, Inc. v. Alvies (U.S. Dist. Ct., California, Jan. 22, 2014) 2014 WL 6150799
Plaintiff CrossFit, Inc. (“CrossFit”) brought suit for trademark infringement, among other claims. As with seemingly the majority of current trademark, false advertising and other unfair business practices claims, social media formed a large bulk of the evidence. In fact for this case, the entirety of CrossFit’s claims were based upon the content of the Defendant’s Facebook page, which allegedly violated CrossFit’s registered trademarks throughout, culminating in a contentious takedown notice sent to Facebook pursuant to the Digital Millennium Copyright Act (“DMCA”), which Facebook obliged.
This survey group for January only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated, or otherwise resolved last month alone. Without question, the deluge of social media cases continues.
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