Tag: foundation

Facebook Posts Not Hearsay Where Offered To Show How Ex-Wife Presented Relationship To Others – Illinois Case Note

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Reversing a family law judge’s decision to terminate ex-spousal maintenance, the Second District appeals court in In re Marriage of Miller, 2015 IL App(2d) 140530 delves into the foundation requirements for getting Facebook pages into evidence and again highlights the crucial role social media plays in litigation in this digitally saturated culture.

The trial court granted the ex-husband (“Husband”) motion to terminate maintenance payments to his ex-wife (“Wife”) based on her multiple Facebook posts that she was in a relationship and (presumably) living with another man.  Illinois divorce law posits that maintenance payments must cease when the recipient remarries or cohabitates with another on a continuing basis.

Since the Facebook posts revealed the Wife frequently trumpeting her new relationship, the court found that the policies behind maintenance payments would be compromised by allowing the Wife to continue receiving payments from Husband.

The Wife appealed, arguing that the trial court shouldn’t have allowed her Facebook posts into evidence.

Held: Reversed (but on other grounds).  Wife’s social media posts were properly authenticated, not hearsay and any prejudice to her didn’t substantially outweigh the posts’ probative value.

Rules/reasoning:

– To enter a document into evidence at trial or on summary judgment, the offering party must lay a foundation for it;

– The party offering the document into evidence – including a document to impeach (contradict) a witness on the stand – must authenticate the document through the testimony of a witness who has personal knowledge sufficient to satisfy the court that the document is what the proponent claim it is;

– To lay a foundation for an out-of-court statement (including a document), the party attempting to get the statement into evidence must direct the witness to the time, place, circumstances and substance of the statement;

– Hearsay is a statement, other than made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted;

– When the making of statement is the significant fact, hearsay isn’t involved (ex: the mere fact that a conversation took place isn’t hearsay);

Here, the court found that the Facebook posts weren’t offered for their truth.  Instead, they were offered to illustrate the way the Wife was portraying her current relationship to others.  The court deemed the posts relevant to the issue of how “public” or “out in the open” the Wife was about the relationship. 

And since the Husband didn’t offer the posts for the truth of their contents (that Wife was in fact living with someone and so disqualified from further maintenance payments) but instead to show the court the manner in which the Wife presented the relationship to others, the court properly allowed the posts into evidence.

The Second District also agreed with the trial court that the posts didn’t unfairly prejudice the Wife.  Indeed, the court characterized the posts as “bland”, “cumulative” and less effective than the parties’ live testimony.

(¶¶ 33-38)

The Wife still won though as the appeals court reversed the trial court’s decision to terminate Husband’s maintenance obligations.  The court found that more evidence was needed on the specifics of the Wife’s existing relationship including whether it was continuing and conjugal enough to constitute a “de facto marriage” (as opposed to a “dating” relationship only) and thus exclude the Wife from further maintenance payments from Husband.

Take-aways:

Hearsay doesn’t apply where out-of-court statement has independent legal significance;

Facebook posts authored by a party to lawsuit will likely get into evidence unless their prejudice outweighs their probative value;

Where social media posts are authored by third parties, it injects another layer of hearsay into the evidence equation and makes it harder to get the posts admitted at trial.

LinkedIn Page Doesn’t Get Into Evidence As a Rule 803(17) “Directory” or “Compilation” in Podcast Dispute

imagesA key issue in Personal Audio, LLC v. CBS Corporation, 2014 WL 1202698 (E.D. Tex. 2014) was whether a LinkedIn page, printed off the ‘Net by a testifying witness, was admissible at a motion to transfer venue hearing as a “compilation” or “directory” under Federal Evidence Rule 803(17).

A broadcast behemoth defendant (CBS) tried to transfer a podcast patent infringement case from Texas to New York on the basis that material witnesses to the dispute lived closer to New York than Texas (where plaintiff was based).  The plaintiff wanted to keep the case in Texas.  In support of its motion to transfer, CBS tried to offer into evidence a LinkedIn page of a third-party witness who apparently lived in New York.  CBS wanted the page into evidence to support its argument that New York was the more convenient forum for the case.

Held: The LinkedIn page was inadmissible hearsay since CBS failed to lay a foundation for the page’s authenticity. CBS’s motion to transfer venue is denied.

Federal Rule of Evidence 803(17)

The basis for the court’s ruling was Evidence Rule 803(17).  This rule provides for potential admission of “market quotations, lists, directories, or other compilations” generally relied on by the public or persons in particular occupations.

The twin purposes for streamlined admissibility under this rule are reliability and necessity.  Necessity exists because most commercial publications have multiple authors so it’s not logistically feasible to have all of them testify to a document’s contents.  Reliability lies in the fact that the documents are regularly consulted by third parties and that if the documents weren’t accurate, the public or a given industry would stop consulting them. (*5).

To support its argument that key third-party witnesses lived closer to New York than Texas, CBS offered a third-party witness’s LinkedIn page through a CBS employee.  CBS labelled the LinkedIn page as “compilation” evidence under Rule 803(17).  Testifying about the page, the CBS employee stated he was a journalist and that he regularly used online resources to locate individuals – including the witness whose LinkedIn page was involved in this case.

Rejecting CBS’ argument, the court found that the LinkedIn page failed both prongs of the 803(17) admissibility test: “This is clearly not the type of evidence contemplated by FRE 803(17)”, it said.  The LinkedIn page wasn’t reliable because CBS offered no evidence to show LinkedIn (the “compiler” under the Rule) makes any effort to verify the accuracy of its member’s profile pages.  The court also found that the page wasn’t necessary since CBS could have provided testimony or an affidavit of someone who had actual knowledge of the witness’s/LinkedIn member’s location.

Because the page failed both the necessity and reliability prongs of the 803(17) test, the court discredited CBS’ evidence and found that CBS failed to carry its burden of showing it was more convenient to have the case litigated in New York instead of Texas. (*5).

Take-away:

A LinkedIn page or other social media member page can likely be authenticated and admitted into evidence but not as a Rule 803(17) compilation or directory (at least in this District).  If documentary evidence that supposedly shows a witness’s location isn’t reliable or necessary, the proponent of the evidence will need to do more than simply offer hearsay evidence through a third-party.  Instead, the proponent should try to get the evidence in through live testimony or an affidavit of someone who has first-hand knowledge of a witness’s whereabouts.

Post-script: In September 2014, the Federal jury awarded the plaintiff over $1.3M in damages against CBS for infringing the plaintiff’s podcast distribution patent.

 

Single-Page Spreadsheet Doesn’t Satisfy Business Records Rule (Illinois 2nd Dist.)

In In Re Estate of Good, 2013 IL App (2d) 120875-U,  the Second District strictly construed the business records hearsay exception and held that a single-page spreadsheet (the “Spreadsheet”), prepared specifically for litigation by one of the parties from various print and electronic sources, didn’t satisfy the business records admissibility rules.

Facts: The plaintiff real estate auction company sued its deceased founder’s estate alleging the founder misappropriated company funds totalling about $1.5M over a multi-year period.  Good, ¶ 4.  The Plaintiff’s key piece of evidence – the Spreadsheet – was prepared specifically for the  litigation and supposedly summarized various company financial records and itemized the amounts decedent allegedly took from the  company.

The trial court granted the defendant estate’s summary judgment motion on all complaint counts.

Held: Affirmed.

Q: Why?

A: The Spreadsheet was inadmissible hearsay under the prevailing business records rules:

– Evidence which is inadmissible at trial is not admissible in support of or opposition to summary judgment motion;

– Illinois Evidence Rule 803(6) provides that “records of regularly conducted activity” are exceptions to the hearsay rule as long as they consist of a record or data compilation in any form made at or near the time from information transmitted by someone with knowledge if (a) kept in course of regularly conducted business activity and (b) if it was the regular practice of that business activity to make the record or data compilation;

– A business records proponent must also lay a foundation for the records.  To authenticate a document, the party must offer evidence that shows the document is what the party claims it to be;

– A business record’s evidence foundation requires proof that the record (1) was made in regular course of business and (2) made at or near the time of the event or occurrence;

– The foundation for admitting business records can come via affidavit or trial testimony of a records custodian or other person familiar with the business and its mode of operation;

– A summary print-out prepared specifically for trial can satisfy business records rule (and be admissible) IF the underlying data on which the summary is based are (i) kept in regular course of business, (ii) the data was entered contemporaneous to the event, and (iii) there’s nothing to indicate the source of the information is untrustworthy.

Application:

The Spreadsheet didn’t satisfy the  business records exception.  First, it was mathematically inaccurate: the numbers didn’t match up.  Also, plaintiff’s witnesses admitted in depositions that Spreadsheet was cobbled together from different electronic and printed sources – but they couldn’t specifically identify the sources.  ¶¶ 67-70.

Also, the Spreadsheet wasn’t itself a business record: it was a “one-shot” summary document prepared for the summary judgment motion at the direction of a plaintiff  and was “essentially created from scratch.” ¶ 70.

The Court also held that plaintiff failed to lay a proper foundation for the other financial documents (aside from the Spreadsheet) to support its claims.

The Court pointed to the records custodian’s deposition testimony where he couldn’t specifically identify any documents that supported plaintiff’s damage claims and offered only vague testimony about check requests and invoices that he supposedly reviewed. ¶ 74.

Take-aways:

Good illustrates that numerical accuracy is important when seeking summary judgment on damage claims.

A summary of damages document can meet the business records test – but only if the underlying data is regularly recorded and entered by someone with knowledge of the recorded event.

Good also shows that it’s vital for a deponent (or affiant) to sufficiently identify and explain the underlying data that underlies a damages summary.  It’s clear that the conflicting testimony from plaintiff’s agents concerning the underlying Spreadsheet information played an important rule in the Court excluding plaintiff’s evidence.