Admissibility of Internet Photos under Illinois Rules of Evidence

 

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In re Marriage of Perry, 2012 IL App. (1st) 113054 examines the foundation requirements to admit Internet photos into evidence at trial.  The respondent husband downloaded what he claimed were photos of his wife from an Internet escort site and tried to use the provocative pictures against her in a custody fight.

In finding that the husband laid a proper foundation for the flash drive photos, the Court first applied Illinois Evidence Rule 901 which sets forth a two-part test for authenticity: (1) a witness must testify that a matter is what it is claimed to be and (2) he must offer evidence that describes a process or system used to produce a result and which shows that the process or system produces an accurate result is sufficient for authentication.  Ill. R. Evid. 901(b)(1), (9).

Under Evidence Rule 1001, the Court noted that a duplicate is defined as [paraphrasing] a counterpart produced by means of photography, or by other equivalent techniques  that accurately reproduce the original.  A duplicate is admissible to the same extent as the original unless there is a genuine issue concerning the original’s authenticity or if it would be unfair to admit the duplicate in lieu of the original.  Perry, ¶ 47; Ill. R. Evid. 1001(4), 1003.  In Illinois, photographs are admissible if they are identified by a witness who has knowledge of the subject matter depicted in the photographs and the witness testifies that the photos are a fair and accurate representation of the subject matter at the relevant time. Perry, ¶ 47.  Expert testimony is not required to provide a foundation for a photograph if the person testifying as to the photo’s contents has personal knowledge.  Perry, ¶ 48.

Applying these rules, the Court held that the husband laid a sufficient foundation that the photos in question depicted his wife. But in finding that the husband failed to lay a foundation that the photos were specifically from the “Chix Escorts” Web site, the Court noted that on-line evidence is naturally suspect since anyone can create phony social media accounts.  Perry, ¶ 50.  Still though, the Court noted a growing national trend to allow screenshots into evidence based on witness authentication by live testimony or affidavit.”  Perry, ¶ 51.

The First District ruled that there was improper authentication evidence that the photos were from the escort site, noting that only one photo bore the “Chix Escorts” logo.  In addition, the wife challenged the photo’s veracity by testifying that the flash drive photos were old photos she sent her husband and that were stored on his cell phone.  The court further found that none of the photos consisted of screenshots or contained the Internet address on them.  Because photos can be digitally manipulated and the wife offered testimony that the photos originated not from the Net but from her husband’s own cell phone, the Court concluded that the husband failed to lay a proper foundation that the photos originated from the “Chix Escorts” site.  Perry, ¶ 53.

Even so, the Court held that the trial court’s admission of the photos as originating from the “Chix Escorts” escort site was harmless error. That’s because there was other evidence that the wife was working as an escort and the court did not base its custody decision  on what escort agency the wife happened to be working for.  Id., ¶ 54.

 The take-away: the Perry case is a good primer on the evidence rules that dictate photograph admissibility at trial – especially in the modern-day Web context.  The court liberally applied the Illinois evidence rules’ authentication requirements for downloaded Internet content. 

From this case, it seems clear that “screenshot” evidence can be powerful – especially as an impeachment tool.  If you can show that the challenged photograph is more likely than not a true screenshot, which bears some distinctive marks such as the domain name, the date or other evidence (such as the court itself witnessing the site from its own computer – see Perry, ¶ 51) which tends to show that the photo was in fact printed from a Web site, the Court will likely allow it in.  Obviously, the proponent of the evidence will have to first establish the photo’s relevance.

 

Exculpatory Clauses in Illinois – The ‘Uneven Bargaining Position’ Issue

Spears v. Ass’n of Illinois Electric Cooperatives, 2013 IL App (4th) 120289 summarizes the general rules and exceptions that govern exculpatory clauses in Illinois.  In the case, the plaintiff college student who signed up for a utility “pole climbing” class the defendant – a non-profit entity – offered through plaintiff’s college.  Before she took the class, plaintiff signed a release that immunized the defendant from all claims and injuries that could result from the class. 

The plaintiff sustained a serious knee injury while descending a utility pole and sued the defendant for negligence.  The defendant moved for summary judgment based on the release. The trial court denied the summary judgment motion and found there was a disparity in bargaining power. 

The appeals court reversed finding there were unresolved fact issues as to whether there was a disparity in bargaining power between the student and school.

Exculpatory Provisions: General Rules

In Illinois, parties may contractually release liability for their own negligence.  Spears, ¶ 24.  Liability release contracts are not favored and are strictly construed against the released party because these contracts pit two public policy interests against each other: (1) a person should be liable for his negligent conduct vs. (2) contracting parties should be free to contract as they see fit.  Id.

A release of liability will be enforced in Illinois if (1) the terms are clear, explicit and precise; (2) the release encompasses the activity, circumstance or situations involved in the contract; (3) it is not against public policy; and (4) there is nothing in the “social relationship” which weighs against upholding the release.  ¶ 25.

The ‘Social Relationship’ and Disparity of Bargaining  Power Exceptions

Several social relationships can lead a court to invalidate an exculpatory clause.  These include: (1) employer-employee; (2) common carrier/innkeeper/public utility – member of public; and (3) bailor-bailee relationships.   

Besides these special relationships, a “disparity of bargaining power” between the contracting parties can work to defeat a liability waiver.  On this point, the key focus is whether the plaintiff had freedom of choice as to whether to sign the release.  ¶ 26.

The disparity in bargaining power factors a court considers include (1) the sophistication of the contracting parties; (2) whether plaintiff was or should have been aware of the risks involved in the activity; (3) whether plaintiff was under economic or other compulsion (was it a “take-it-or-leave-it” situation?); and (4) whether the plaintiff had a reasonable alternative. ¶ 27.

The over-arching question which Spears refused to answer was whether there was a disparity of bargaining power between an educator and a student such that exculpatory releases in school-student contracts are always void.  The Court said it was up to the legislature (not the courts) to decide the question. ¶ 36. 

Generally, if a plaintiff is free to forgo the activity and he can realistically locate a alternative service provider, the release will be upheld.  In determining whether the plaintiff was free to abstain from the class, the Court considered (1) the plaintiff’s monetary and time investment in the activity; (2) whether the plaintiff’s completion of the pole climbing class was essential for future employment; (3) whether plaintiff could have obtained the same or similar instruction elsewhere; (4) would refusing to take the pole climbing class detrimentally impact plaintiff’ employment prospects?; and (5) would plaintiff’s financial aid, grants or scholarship be imperiled if she opted out of the class?  ¶ 39. 

Epilogue:

Spears common-sense take-away is that if the person signing the release had a meaningful choice as to whether to sign it or not, the release will most likely be enforced absent a special-relationship between the parties where a stronger party is trying to take advantage of a weaker one.

Collecting Post-Judgment Attorneys’ Fees in Illinois

Collecting a judgment against sophisticated corporate and individual debtors can be a time-consuming and futile exercise. Post-judgment enforcement proceedings can drag on for months (sometimes years), often generating astronomical attorneys’ fees and expenses.

Tobias v. Lake Forest Partners, LLC, 402 Ill.App.3d 484 (1st Dist. 2010) addresses some tricky questions involving competing money judgment priority and when post-judgment attorneys’ fees can be recovered.  There, two judgment creditors – one in Illinois, the other in Florida – got judgments totalling nearly $5 million against common defendants.  

The Illinois judgment – eight days “older” than the Florida one – stemmed from a loan agreement that provided that the plaintiff could recover “all costs of collection” in the event of a breach. 

The Florida creditor registered its judgment in Illinois and intervened in the Illinois post-judgment proceedings started by the Illinois creditor.  Before the Florida creditor intervened, however, the Illinois judgment creditor served a third party citation on a corporation (the “Respondent”) to discover if the Respondent had any assets of one of the judgment debtors.  

When the Respondent answered that it was holding approximately $340,000 in judgment debtor assets, the Illinois post-judgment judge divvied up the debtor’s assets and ordered Respondent to disburse $87,000 to plaintiff “as full satisfaction” of plaintiff’s judgment, $126,000 to the Florida creditor and $126,000 back to the defendant.  The court denied the Illinois creditor’s request for over two years’ worth of attorneys’ fees incurred in trying to enforce the judgment.

The Illinois creditor appealed, arguing that the trial court should have given its (the Illinois creditor) claim for post-judgment attorneys’ fees priority over the later Florida judgment.  

The Appeals court affirmed the trial court’s disposition of the judgment debtor’s assets.  

The Court first held that under the Illinois wage deduction statute – 735 ILCS 5/12-801 et seq., a judgment creditor can attach only 15% of a debtor’s gross wages.  Once a third-party citation is served, it impresses a lien on the debtor’s nonexempt personal property in the third party’s possession up to the judgment amount 735 ILCS 5/2-1402(a), (m).  And since Respondent was holding the debtor’s wages, the Court found that the Illinois and Florida creditors could collectively attach only 15% of the wages. 

On the subject of post-judgment fees, the court squarely held that unless the creditor’s post-judgment claim for attorneys’ fees is reduced to judgment (that is, assigned a specific dollar value), those fees could not lien the debtor’s property (here, wages) in Respondent’s possession. 

The Court made it clear that no claim can achieve lien status until the claim has been reduced to an enforceable judgment.  Since the plaintiff’s counsel never had his attorneys’ fees converted to a specific dollar amount, the fees could not trump the Florida creditor – even though the Illinois judgment predated the Florida one.

Afterwords:

The lesson for creditor’s counsel is clear: when an underlying contract or judgment provides that post-judgment attorneys’ fees can be added to the judgment amount, creditor’s counsel should document its fees and present a petition so that the fee amount can be liquidated (reduced to a specific sum). 

Once that happens, the fees can be added to the judgment amount and can take priority over a competing creditor’s claim.