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Every year, changes are made to the Federal Rules of Evidence and Federal Rules of Civil Procedure. In 2017, the Supreme Court approved substantive changes to Federal Rule of Evidence 807. This year, the committee proposed and the Supreme Court adopted changes to Federal Rules of Evidence 803 and 902. These changes will go into effect on December 1, 2018.

Changes to Federal Rule of Evidence 803

FRE 803(16) currently reads …

Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

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(16) Statements in Ancient Documents. A statement in a document that is at least 20 years old, and whose authenticity is established.

Proposed changes to FRE 803(16) …

(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

Committee Notes about proposed changes to FRE 803(16)

You can find these Committee Notes at rulesofevidence.org.

The ancient documents exception to the rule against hearsay has been limited to statements in documents prepared before January 1, 1998. The Committee has determined that the ancient documents exception should be limited due to the risk that it will be used as a vehicle to admit vast amounts of unreliable electronically stored information (ESI). Given the exponential development and growth of electronic information since 1998, the hearsay exception for ancient documents has now become a possible open door for large amounts of unreliable ESI, as no showing of reliability needs to be made to qualify under the exception.

The Committee is aware that in certain cases—such as cases involving latent diseases and environmental damage—parties must rely on hardcopy documents from the past. The ancient documents exception remains available for such cases for documents prepared before 1998. Going forward, it is anticipated that any need to admit old hardcopy documents produced after January 1, 1998 will decrease, because reliable ESI is likely to be available and can be offered under a reliability-based hearsay exception. Rule 803(6) may be used for many of these ESI documents, especially given its flexible standards on which witnesses might be qualified to provide an adequate foundation. And Rule 807 can be used to admit old documents upon a showing of reliability—which will often (though not always) be found by circumstances such as that the document was prepared with no litigation motive in mind, close in time to the relevant events. The limitation of the ancient documents exception is not intended to raise an inference that 20–year–old documents are, as a class, unreliable, or that they should somehow not qualify for admissibility under Rule 807. Finally, many old documents can be admitted for the non-hearsay purpose of proving notice, or as party-opponent statements.

The limitation of the ancient documents hearsay exception is not intended to have any effect on authentication of ancient documents. The possibility of authenticating an old document under Rule 901(b)(8)—or under any ground available for any other document—remains unchanged.

The Committee carefully considered, but ultimately rejected, an amendment that would preserve the ancient documents exception for hardcopy evidence only. A party will often offer hardcopy that is derived from ESI. Moreover, a good deal of old information in hardcopy has been digitized or will be so in the future. Thus, the line between ESI and hardcopy was determined to be one that could not be drawn usefully.

The Committee understands that the choice of a cutoff date has a degree of arbitrariness. But January 1, 1998 is a rational date for treating concerns about old and unreliable ESI. And the date is no more arbitrary than the 20–year cutoff date in the original rule. See Committee Note to Rule 901(b)(8) (“Any time period selected is bound to be arbitrary.”).

Under the amendment, a document is “prepared” when the statement proffered was recorded in that document. For example, if a hardcopy document is prepared in 1995, and a party seeks to admit a scanned copy of that document, the date of preparation is 1995 even though the scan was made long after that—the subsequent scan does not alter the document. The relevant point is the date on which the information is recorded, not when the information is prepared for trial. However, if the content of the document is itself altered after the cut-off date, then the hearsay exception will not apply to statements that were added in the alteration.

Changes to Federal Rule of Evidence 902

FRE 902 is being updated to add two new categories of self-authenticating evidence.

Rule 902. Evidence That Is Self–Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

* * * * *

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

Committee Note about FRE 902(13)

The amendment sets forth a procedure by which parties can authenticate certain electronic evidence other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11) and (12), the Committee has found that the expense and inconvenience of producing a witness to authenticate an item of electronic evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. The amendment provides a procedure under which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.

Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate.

A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then authenticity is not established under this Rule. The Rule specifically allows the authenticity foundation that satisfies Rule 901(b)(9) to be established by a certification rather than the testimony of a live witness.

The reference to the “certification requirements of Rule 902(11) or (12)” is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(13) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently.

A certification under this Rule can establish only that the proffered item has satisfied the admissibility requirements for authenticity. The opponent remains free to object to admissibility of the proffered item on other grounds—including hearsay, relevance, or in criminal cases the right to confrontation. For example, assume that a plaintiff in a defamation case offers what purports to be a printout of a webpage on which a defamatory statement was made. Plaintiff offers a certification under this Rule in which a qualified person describes the process by which the webpage was retrieved. Even if that certification sufficiently establishes that the webpage is authentic, defendant remains free to object that the statement on the webpage was not placed there by defendant. Similarly, a certification authenticating a computer output, such as a spreadsheet, does not preclude an objection that the information produced is unreliable—the authentication establishes only that the output came from the computer.

A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided.

The reference to Rule 902(12) is intended to cover certifications that are made in a foreign country.

Committee Note about FRE 902(14)

The amendment sets forth a procedure by which parties can authenticate data copied from an electronic device, storage medium, or an electronic file, other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11) and (12), the Committee has found that the expense and inconvenience of producing an authenticating witness for this evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. The amendment provides a procedure in which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.

Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by “hash value.” A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.

Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate.

A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then authenticity is not established under this Rule.

The reference to the “certification requirements of Rule 902(11) or (12)” is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(14) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently.

A certification under this Rule can only establish that the proffered item is authentic. The opponent remains free to object to admissibility of the proffered item on other grounds—including hearsay, relevance, or in criminal cases the right to confrontation. For example, in a criminal case in which data copied from a hard drive is proffered, the defendant can still challenge hearsay found in the hard drive, and can still challenge whether the information on the hard drive was placed there by the defendant.

A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided.

The reference to Rule 902(12) is intended to cover certifications that are made in a foreign country.

Photo by beachmobjellies.

ML Healthcare Services, LLC v. Publix Super Markets, Inc. [No. 15-13851 Feb. 7, 2018] ___ F.3d ___ (11th Cir. 2018): Evidence of collateral source payments may be admissible to show a doctor’s bias as to his causation testimony about the treatment he provided. (download the opinion)

Robin Houston sued Publix arising from an alleged slip-and-fall at a Publix Super Market in McDonough, Georgia. The alleged incident occurred on July 24, 2012, after which Houston treated with a medical doctor who sold the medical debt for Houston’s treatment to a litigation investment company, ML Healthcare. ML Healthcare purchases medical debt at a discount rate from medical providers, using a contract that allows ML Healthcare to recover out of an tort settlement or judgment the full cost of the medical care provided. At trial, Publix sought to introduce evidence of this collateral source relationship to show Houston’s doctor’s were biased in their testimony and that Houston’s claimed medical expenses were unreasonable.

Georgia’s Collateral Source Rule

Stated in its simplest terms, Georgia’s collateral source rule allows that “the receipt of benefits or mitigation of loss from sources other than the defendant will not operate to diminish plaintiff’s recovery of damages.”¹⁾Polito v. Holland, 258 Ga. 54, 55 (1988) (A plaintiff as “the right to recover damages undiminished by collateral benefits). Evidence of collateral sources payments is inadmissible if it would be used only to show a reduction in damages.²⁾Id. at 56. However, evidence of collateral source payments is admissible if it serves a valid evidentiary purpose other than revealing the benefits to the jury.

In the ML Healthcare Services case, Publix sought to introduce evidence of collateral source payments to attack the credibility of the causation opinions offered by Houston’s doctors. The district court found that ML Healthcare’s business model, which included fronting medical expenses for plaintiffs to treating physicians was highly relevant and probative as to the bias of the treating doctors, as was the reasonableness of the medical expenses. As such, the district court found the collateral source evidence had the valid evidentiary purpose of impeaching the witnesses and was admissible.

Distinguishing Alabama’s Collateral Source Rule

According to this 11th Circuit opinion, in Alabama, any showing that the Plaintiff has received collateral source payments (whether insurance payments, workmen’s compensation benefits, or from a litigation investment firm) may constitute reversible error.³⁾Southern v. Plumb Tools, 696 F.2d 1321 (11th Cir. 1983). Note: My practical experience has differed, so I may need to do some additional looking into this issue. But suffice it to say that if you’re in an 11th Circuit state other than Georgia, your state law will be applied and may achieve a different result than this opinion allows.

Admissible Use of Evidence of Collateral Source Payments

The 11th Circuit upheld the district court’s ruling that evidence of collateral source payments was admissible for the purpose of showing potential bias of Houston’s treating physicians’ testimony. For ML Healthcare to be profitable it must subsidize plaintiffs who win their lawsuits. The arrangement creates a risk of bias on the part of medical providers who receive referrals from ML Healthcare and later testify on behalf of the patients/plaintiffs they have treated. If the doctor failed to provide causation testimony favorable to the plaintiff’s claim, ML Healthcare would find doctors who were willing to provide such testimony.

Because the collateral source evidence served a legitimate evidentiary purpose (other than to reduce damages, for which purpose the evidence would have been inadmissible), the district court did not abuse its discretion in admitting this evidence.

Photo by Alex Proimos.

I am prefacing this article by saying that I am a resident of Gardendale, Alabama. This article is not a commentary on Gardendale’s efforts to secede its schools system from Jefferson County, nor am I expressing any opinion about the rulings of either the 11th Circuit or Judge Haikala in the United State District Court for the Northern District of Alabama. My purpose here is to illustrate the long teeth of social media content and how Facebook posts can be used to show intent (fairly or not), and thereby impute motives to the actors involved in litigation. Spoiler: It can be very bad for the parties.

The Use of Social Media Content in the Gardendale Secession Case

In the last few decades, a number of municipalities have withdrawn their school from the Jefferson County system and form independent school districts. Gardendale is the most recent such school to attempt to do so. Their efforts met with opposition, and the issue ended up in court in front of Judge Haikala of the United State District Court for the Northern District of Alabama. Judge Haikala found that Gardendale’s secession attempt was racially motivated and was impermissible (That’s the shortest possible version of her 190-page opinion), but her order incorporated a compromise that left both sides unhappy and resulted in an appeal to the 11th Circuit Court of Appeals.

The parties briefed and argued their positions before the 11th Circuit, and recently, Judge William H. Pryor wrote the opinion for the 11th Circuit denying Gardendale the opportunity to form an independent school district. In his opinion, Judge Pryor spent as sizable chunk of space supporting the court’s opinion that Gardendale’s efforts were racially motivated. Much of the content he used to support the position was from Facebook posts on a Facebook group operated by supporters of the movement.

Below is the bulk of the section of Judge Pryor’s opinion that deals with the social media issue. You can download the opinion in its entirety here.

The Evolution of the Gardendale Secession Movement

The Gardendale secession movement started when the schools in that City were becoming racially diverse while the population of the City remained overwhelmingly white. In 1996, the student population in Gardendale was 92 percent white and 8 percent black. The current population of the City has a similar demographic makeup. As of 2010, more than 88 percent of the population was white and less than 9 percent was black. But by 2010, only one of the four public schools in Gardendale, Snow Rogers Elementary School, came close to mirroring the racial demographics of the City. In 2010, Snow Rogers Elementary was about 94 percent white and 4 percent black. The other three schools in Gardendale—Gardendale Elementary, Bragg Middle School, and Gardendale High School—were less than 80 percent white and 20 or more percent black. Gardendale Elementary was about 75 percent white and 20 percent black; Bragg Middle was about 77 percent white and 21 percent black; and Gardendale High was about 75 percent white and 23 percent black. And in later years, the schools continued to become more racially diverse in even starker contrast with the demographics of the City. Snow Rogers Elementary had a student population that was about 85 percent white and 5 percent black during the 2015–16 academic year. Gardendale Elementary was about 71 percent white and 24 percent black. Bragg Middle was about 67 percent white and 29 percent black. And Gardendale High was about 71 percent white and 27 percent black.

The racial diversity of the schools in Gardendale stems from the attendance of students who reside outside its municipal limits. Students from the predominantly black community of North Smithfield/Greenleaf Heights constitute nearly 30 percent of the black student population at Bragg Middle and more than 25 percent of the black student population at Gardendale High. Students from the unincorporated and predominantly white community of Mount Olive as well as students from the more integrated Town of Brookside and City of Graysville also attend the middle and high schools in Gardendale. Dozens of black students have taken advantage of the majority-to-minority transfer provision in the 1971 order to attend schools in Gardendale. For example, from 2009 to 2016, anywhere from 12 to 22 black students attended Gardendale High annually as transfer students. After the No Child Left Behind Act of 2001, 20 U.S.C. §§ 6301 et seq., required public school boards to permit students attending schools “identified for school improvement” to transfer to schools not so identified, 20 U.S.C. § 6316 (repealed 2015), the district court also amended the 1971 order to permit some black students from less successful schools to transfer to Snow Rogers Elementary and Bragg Middle. Because of capacity issues, the district court permitted only 12 students to transfer to Bragg Middle for each of the relevant years. In sum, Gardendale schools are racially diverse institutions in an otherwise white enclave in large part because zoning and desegregation transfer opportunities permit other Jefferson County students to attend the schools.

Against this backdrop, four individuals, Tim Bagwell, Chris Lucas, David Salters, and Chris Segroves, launched a campaign to create a municipal school system for Gardendale. Segroves later became the president of the Gardendale Board. Lucas became a member of the Board. And Bagwell and Salters served on an advisory board.

As part of their campaign, Bagwell, Lucas, and Salters created and maintained a Facebook page titled “Gardendale City Schools.” The page was publicly accessible, but the secession leaders served as page administrators with the ability to approve new members, delete posts, and change the privacy settings.

From the start, the secession leaders expressed concern about the changing demographics of the Gardendale schools. Salters explained in one post that the population of the predominantly white City of Gardendale looked different from the more diverse student population at the Gardendale schools: “A look around at our community sporting events, our churches are great snapshots of our community. A look into our schools, and you’ll see something totally different.” Bagwell alluded to those demographic differences when he listed among the benefits of a municipal system, “better control over the geographic composition of the student body [and] protection against the actions of other jurisdictions that might not be in our best interests.”

The secession leaders argued that a separate school system would give the residents of Gardendale greater control over their children’s education, improve the academic quality of the schools, and permit Gardendale “to control [its] own revenue stream.” But the secession leaders never met with representatives of the Jefferson County Board to discuss their grievances, and they struggled to identify specific deficiencies in the County schools. Segroves testified that he “had no involvement in the schools in Jefferson County prior to . . . serving on the [Gardendale] [B]oard.” When asked to identify “specific changes that [he] would make if [Gardendale] were allowed to separate,” Salters replied, “Just overall improvements, general improvements of education which are reflected in the size of the school system.” And Bagwell stated that “at least historically in many areas, including Alabama, a smaller system with individual local control, historically they tend to perform better academically than larger systems.” He added that a municipal school system “seems to be a component for a vital community with higher-than-average growth and desirability.”

The secession leaders and others frequently blamed “non-residents,” particularly students from the predominantly black community of North Smithfield, for allegedly draining resources from the Gardendale schools. In response to a suggestion that racial concerns were animating the movement, Salters stated in a Facebook post that “non-resident students are increasing at a [sic] alarming rate in our schools.” “They consume the resources of our schools, our teachers and our resident students, then go home” without “contribut[ing] financially.” He stated that he would “welcome those students,” but only if they “move to Gardendale or pay a transfer fee.” One online participant put it more bluntly: “[D]id you know we are sending school buses to Center point [sic] and busing kids to OUR schools in Gardendale, as well as from Smithville!” That participant stated that some of the transfer students “have been bused here for years due to the desegregation from decades ago and that should have already been changed because we have a very diverse population now in our area.” The participant said, “We are busting at the seams and can’t continue on this path!” Salters expressed similar concerns: “We are using buses to transport non-residents into our schools (without additional funding) from as far away as Center Point (there’s your redistribution of wealth).”

Secession supporters frequently derided the City of Center Point, a predominantly black community that used to be a predominantly white community and has no municipal school system. In 1970, Center Point was over 99 percent white, but by 2010, about 33 percent of Center Point was white and 63 percent was black. When comparing Gardendale to Center Point, secession leaders warned residents that if they failed to act, Gardendale would follow a similar trajectory. For example, at a public meeting, Salters stated, “It likely will not turn out well for Gardendale if we don’t do this. We don’t want to become what” Center Point has become. And an online participant asked, “[W]ould you like to live in Center Point or Adamsville?” She “encourage[d] [another online participant] to ride around those areas, maybe even Pinson or Huffman and think about how quickly an area’s demographics change.” She added, “This is about a community wanting to progress, not regress.”

In contrast with their comments about Center Point, the secession leaders touted the predominantly white community of Mount Olive as a desirable area to be included in the new school system. In a post on Facebook, Lucas contrasted the intended treatment of Mount Olive with that of “minorities.” In response to a question about the impact of “[f]ederal desegregation laws” on the proposed secession, he explained that minorities not residing in Gardendale would not be students in the new system, but that Gardendale might annex Mount Olive:

1) Will kids in North Gardendale (who may currently be zoned for county schools in Morris) be zoned for a city school system? Yes. All kids within the municipal boundaries of Gardendale would go to schools within the new system.

2) Would Gardendale be required to bring in minorities from outside of the municipal boundaries to achieve some sort of quota? No. The school system is for residents of Gardendale (whatever those boundaries end up being and whatever that racial make-up is). The idea is that it might include an expansion to include an annexation of certain parts of Mount Olive.

Indeed, the secession leaders and others regularly discussed the status of Mount Olive, though practical obstacles related to the local fire district ultimately thwarted their intended plans.

…

Some supporters of secession expressed their displeasure at the prospect of allowing any non-residents to attend the municipal schools. Bagwell defended on Facebook permitting the attendance of North Smithfield students as “a specific, technical, tactical decision aimed at addressing a recognized road block to breaking away.” And he later described that “bitter . . . pill” as something that weighed against the “ultimate . . . goal” of secession:

You and I may not think that it is particularly fair to accept an out-of-district area not subject to our control or taxation as a price to pay to gain approval for separation, and we would be within reason to feel that way. The extent to which fair has anything to do with it depends on how you weigh your priorities in deciding whether it is too bitter a pill to swallow or if the ultimate treatment goal, i.e. separation, is worth it.

It’s impossible to know whether the decisions of Judge Haikala or the 11th Circuit would have differed had these indicting statements not been made on Facebook. Maybe there would have been enough other evidence for them to find that the secession attempt was racially motivated. But for Judge Pryor to have spent that much time incorporating the social media content into his opinion, you can know for a certainty that it weighed on the 11th Circuit’s ruling.

This is but one case showing how social media content can derail litigation and cause massive wreckage to a case. Associate’s Mind has recently written about how social media affected a 9th Circuit decision.

Be mindful of what you put online. I’ve heard several folks say, “Never put anything in writing that you wouldn’t want a lawyer to hand you as an exhibit while you’re on a witness stand.” This seems like a good rule of thumb for anyone to consider before publishing social media content.

Here are a couple other topics where I’ve written about litigation and social media content: The Discoverability of Social Media Content in Civil Litigation and Responding to Social Media Discovery Objections in Alabama.

When you’re defending a case, I expect you are likely issuing discovery requests to the plaintiff (hopefully, immediately after filing an answer). I expect there is also a high probability those discovery requests include social media discovery requests. If your experience has been anything like mine, those social media discovery requests draw objections more often than not. Here are some things to consider: Are your Interrogatories and Requests for Production narrowly tailored enough to be proper? Was the objection appropriate or just a shot in the dark assuming that you won’t notice or be bothered to make a fuss over it? Do you know how to respond to the objections?

The Significance of Social Media Discovery

Through no fault of his own, a man was involved in a car wreck. To be compensated for his injuries and damages, he sued my client. He claimed as a result of the accident he was no longer able to ride or race motorcycles. We issued discovery requests asking him to identify his social media accounts. He complied. We then scoured one of his social media accounts for anything that we could use to discredit his testimony. We found plenty of photographs and comments that supported our contention that his claims may not be completely genuine.

We brought out some of this at his deposition, and he attempted to explain what we were seeing. Then when he made the same claims in front of the jury, we used even more of the photographs and his own words left in comments sections to impeach his testimony. We achieved a result for our client that likely wouldn’t have been possible without the social media discovery we had obtained.

Social Media Discovery and Objections

If you’re issuing social media discovery requests, they probably look something like this:

Rule 33 Interrogatory: Describe any and all social media accounts or sites that you have an account with or access to and state your username on said accounts, including but not limited to any information on Facebook, Twitter, Google+, MySpace, Instagram, Pinterest, Flickr, YouTube, LinkedIn or any other blogs or other websites that you currently use or have used in the five years prior to the subject incident, including on the date of the collision. NOTE: You are hereby instructed not to delete, erase, or otherwise destroy the content contained on any social media page(s), blog, or other website that contains information, posts, photographs, or other content produced, posted, or otherwise authored by you, throughout the course of this litigation.

Rule 34 Request for Production: Produce any and all archived information, posts, tweets, photographs, and/or any other material authored or posted by you on any social media or websites used or frequented by you and pertaining to either the subject incident or any damages or injuries that you allege have arisen from the subject incident.

And you’re probably drawing objections that look something like this:

Response: Plaintiff objects to this request based on the fact that it is overly broad, calls for information irrelevant immaterial to this accident, is invasive of the plaintiff’s privacy, the retrieval or compilation of which would be unduly burdensome on the plaintiff and is otherwise not reasonably calculated to lead to the discovery of admissible evidence.

Responding to Social Media Discovery Objections

Responding to discoverability and admissibility concerns:

Social media content is subject to discovery under the applicable rules of civil procedure and is not privileged or protected by privacy right, and Alabama courts have properly admitted it into evidence, including relevant statements and photographs from social media accounts. See e.g., Morgan v. Morgan, 183 So.3d 945 (Ala.Civ.App. 2014) (wherein the court admitted evidence, included statements and photographs, from social media site); Davis v. Blackstock, 160 So.3d 310 (Ala.Civ.App. 2014) (wherein photographs from a social media page were admitted into evidence and testimony elicited regarding the contents of the social media page); Grimes v. Saban, 173 So.3d 919 (Ala. 2014) (wherein the contents of the parties’ Facebook pages were admitted and testimony elicited regarding the contents of the social media pages).

As the requesting party, you must be mindful that under the Alabama Rules of Civil Procedure the requested information must be reasonably calculated to lead to the discovery of admissible evidence (which is different from the new Federal Rules of Civil Procedure adopted in 12/2016). Where the plaintiff has alleged injuries resulting from the subject accident, you can reasonably expect in his deposition, the plaintiff will testify regarding the subject incident and his claimed injuries. Any statements made by the plaintiff, whether on social media or in any other discoverable form, that bear on the subject accident or his injuries or damages, or abilities either prior or subsequent to the accident are discoverable under the Alabama Rules of Civil Procedure, whether or not the evidence is admissible.

 “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Ala. R. Civ. Proc. 26(b)(1). Therefore, any requests that seek information pertaining to statements made by the plaintiff are permissible and due to be fully and completely responded to.

Responding to privacy assertions:

Social media posts that are not privatized or otherwise protected are functionally no different than any other statement made by a party in a public place, and no less discoverable. Anything posted by a plaintiff on any social media accounts is a “statement” as defined by Alabama Rule of Evidence 801(a). Under Alabama Rule of Evidence 801(d)(2) such statements, if offered against a plaintiff, are not hearsay and are admissible as evidence.

For More Information about Social Media and E-Discovery…

… you can attend my cleverly titled webinar, “Social Media and E-Discovery” with Alabama Law Weekly on February 21.

Photo by Jason Howie.

Lawyers provide a valuable service to their clients when they aggressively obtain information that enables them to evaluate claims for early resolution. This aggressive pursuit of information may result in higher up-front case expenses, but it frequently enables the client to close out his file more quickly, and often with better results.

My thoughts on this topic, as illustrated through two cases that I handled, can be read at the ABA Journal website: The Value of Aggressively Pursuing Information.

I was recently involved in a car wreck case in which plaintiff’s counsel firmly believed that my client was using her phone at the time of the accident. The only problem was … the facts did support his assertion. There wasn’t even one tiny, little fact that he could present to the jury to support his belief. But never one to let facts get in the way of a theory, he had a plan. A plan that involved him impeaching the defendant by asking her irrelevant questions and then using immaterial evidence to impeach her with.

Getting Snared in the Web

During the defendant’s deposition, the plaintiff asked her if she was using her phone at the time of the accident. She said she was not. So he asked her that question about half-a-dozen different ways trying to elicit a different response. After the defendant stood her ground and gave consistent answers, the plaintiff deployed his trap,

Q: But there are times you do text while driving, right?

A: It’s very rare, if I ever do it. And I have a voice-to-text app that I can use so I don’t have to look away from the road. I mean, I have a two-year-old little boy, you know. Plus it’s illegal.

Q: But when you’re driving, do you sometimes use the phone whether it’s for videos or pictures or browsing the internet or any of those things?

A: No.

Q: Is that something you never do?

A: I don’t ever do that if I’m driving.

Q: Okay. Well, videos — do you record videos while driving?

A: No. My phone is hooked up to the car.

And that was it. At that point, the defendant was like one of those insects who’s been snared in a web and doesn’t know it yet. The spidery lawyer sprung on her with a video he had pulled from her Facebook page for just this occasion. The video showed the defendant recording her son who was singing in the back seat of the car. She was in the driver’s seat in her church parking lot, navigating the stop-and-go traffic of one of Birmingham’s mega-churches and recording her toddler while stopped.

There it is. She said she never records video while driving. But he had video of her doing so. A couple of important things here: (1) there was still no evidence that she was using her phone in any way at the time of the accident, and (2) the impeachment video was taken nine months after the accident. He had his impeachment evidence but it was irrelevant to anything that happened on the roadway the day of the accident.

Rules for Impeaching a Witness

There are only certain ways that impeachment evidence can be used, and Alabama Rules of Evidence 607 and 608 set these out.

Rule 607:

The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 608:

(a) Opinion and reputation evidence of character. The credibility of a witness may be
attacked or supported by evidence in the form of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’s character for truthfulness, other than
conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of
the witness nor proved by extrinsic evidence. They may, however, if probative of truthfulness
or untruthfulness, be inquired into on cross-examination of the witness concerning the
character for truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.

Impeaching a Witness with Irrelevant Evidence

The plaintiff wanted to use video from nine months after the accident to attempt to impeach the defendant on her testimony about phone usage while driving, when the only available documents supported the defendant’s testimony that she was not using the phone at the time of the accident. This is not a proper method impeaching her, because the purportedly impeachable testimony is irrelevant and immaterial to the facts that will be determined by the jury. “It is improper impeachment if, after a party elicits immaterial testimony from a witness, that party seeks to impeach the witness by the witness’s own testimony … on the immaterial matter.”[1]

Impeaching a witness is allowable when the proffered evidence relates to a material issue.[2] But when a question calls for “patently immaterial and irrelevant testimony,” impeachment is improper, as “a witness may not be impeached by showing that she has made contradictory statements about immaterial matters.[3]

Even if the plaintiff had intended to use the video footage not to impeach the defendant directly, but rather to show evidence of her character, it was still not a permissible use. Alabama Rule of Evidence 404 precludes evidence of a person’s character or a character trait to prove conformity therewith on a particular occasion.[4] The video couldn’t be used to suggest to the jury that she had used her phone on one occasion, so she must also have been using when the accident happened.

In short, the video didn’t have any permissible method of being admitted and seen by the jury. So if you’re laying a trap to ensnare some unwitting witness, be sure that the evidence you’re using and the testimony you’re obtaining are material to case. Otherwise, you’ll just have wasted all that cleverness and plotting.

[1] Hobbs v. State, 669 So.2d 1030, 1032 (Ala.Crim.App. 1995) (quoting Tarver v. State, 500 So.2d 1232, 1243 (Ala.Crim.App. 1986)).

[2] Pope & Quint, Inc. v. Davis, 485 So. 2d 1134, 1137 (Ala. 1986).

[3] King v. State, 171 So. 254, 256 (Ala. 1936); Smith v. State, 73 So. 2d 916, 919 (1954) (holding, “The effect of the question was to impeach [the witness] on an immaterial matter, which is not allowable.”).

[4] See Ala. R. Evid. 404(a).

Ever year on December 1, adopted changes that govern various rules of the profession go into effect. In 2015, the Advisory Committee on Rules of Civil Procedure made significant changes to discovery rules of the Federal Rules of Civil Procedure. In 2016, lesser changes were made to FRCP 4, 6, and 82. This year, the comment period is still open for proposed changes to Federal Rule of Evidence 807 (“FRE 807”) , which addresses the residual exception to hearsay rules.

Federal Rule of Evidence 807 (Currently)

In its present form, FRE 807 reads as follows:

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.

Proposed Changes to FRE 807

In 1997, parts of Federal Rules of Evidence 803 and 804 were taken out of those rules and made into a new rule, FRE 807. In 2011, Congress made linguistic changes to FRE 807 “to make them more easily understood and to make style and terminology consistent throughout the rules,” but did not make any changes that would affect meaning. The proposed 2017 changes to Federal Rule of Evidence 807 are the first substantial changes to the rule since it was first adopted 20 years ago.

As it stands FRE 807 only applies in rare circumstances, but the proposed changes seek to expand the scope of the rule. Below is the freshly crafted Federal Rule of Evidence 807, as proposed by the Advisory Committee on Rules of Evidence:

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the court determines, after considering the pertinent circumstances and any corroborating evidence, that the statement is trustworthy;

(2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.

(b) Notice. The statement is admissible only if, the proponent gives an adverse party reasonable written notice of an intent to offer the statement , including its substance and the declarant’s name — so that the party has a fair opportunity to meet it. The notice must be provided before the trial or hearing — or during trial or hearing if the court, for good cause, excuses a lack of earlier notice.

Advisory Committee Discourse on Changes to FRE 807

The Advisory Committee published the following comments discussing the proposed changes to FRE 807, following their Fall 2016 meeting.

The requirement that the court find trustworthiness “equivalent” to the circumstantial guarantees in the Rule 803 and 804 exceptions should be deleted. That standard is exceedingly difficult to apply, because there is no unitary standard of trustworthiness in the Rule 803 and 804 exceptions. It is common ground that statements falling within the Rule 804 exceptions are not as reliable as those admissible under Rule 803; and it is also clear that the bases of reliability differ from exception to exception. Moreover, one of the exceptions subject to “equivalence” review — Rule 804(b)(6) forfeiture — is not based on reliability at all. Given the difficulty of the “equivalence” standard, a better approach is simply to require the judge to find that the hearsay offered under Rule 807 is trustworthy.

Trustworthiness can best be defined as a consideration of both circumstantial guarantees and corroborating evidence. Most courts find corroborating evidence to be relevant to the reliability enquiry, but some do not. An amendment would be useful to provide uniformity in the approach to evaluating trustworthiness under the residual exception — and substantively, that amendment should specifically allow the court to consider corroborating evidence, as corroboration is a typical source for assuring that a statement is reliable.

The requirements in Rule 807 that the residual hearsay must be proof of a “material fact” and that admission of residual hearsay be in “the interests of justice” have not served any purpose. The inclusion of the language “material fact” is in conflict with the studious avoidance of the term “materiality” in Rule 403 — and that avoidance was well-reasoned, because the term “material” is so fuzzy. The courts have essentially held that “material” means “relevant” — and so nothing is added to Rule 807 by including it there. Likewise nothing is added to Rule 807 by referring to the interests of justice because that guidance is already provided by Rule 102. These provisions were added to the residual exception to emphasize that the exception was to be used only in truly exceptional situations. Deleting them might change the tone a bit, to signal that while hearsay must still be reliable to be admitted under Rule 807, there is no longer a requirement that the use must be rare and exceptional.

The requirement in the residual exception that the hearsay statement must be “more probative than any other evidence that the proponent can obtain through reasonable efforts” should be retained. This will preserve the rule that proponents cannot use the residual exception unless they need it. And it will send a signal that the changes proposed are modest — there is no attempt to allow the residual exception to swallow the categorical exceptions, or even to permit the use the residual exception if the categorical exceptions are available.

The Fordham Law Review has published two articles discussing and critical of the proposed changes to FRE 807: “The Three Commandments of Amending the Federal Rules of Evidence” by Victor Gold and “Expanding (or Just Fixing) the Residual Exception to the Hearsay Rule” by Daniel J. Capra.

Photo by Bill Smith.