Can You Hear Me Now? U.S. Marshals Lose Track Of Encrypted Radios

I was probably 10 or 11 years old when I first heard about the United States Federal Witness Protection Program.  It sounded so exotic to me, surpassed only in my mind by the actual spy program of the CIA.  My friends and I would daydream about what our name would be and where we would live if all of a sudden we were whisked away from our actual, “real” lives.  We’d play make-believe, blaming our little brothers for some minor slip of the tongue about their real names or city of origin that would make us move again, getting new names and new lives again. Unfortunately, some folks in the real witness protection program may also be thinking about a name and address change.  As reported by The Washington Post and other outlets like the Huffington Post, the U.S. Marshals Service seems to have lost track of about 2,000 encrypted two-way radios.  Oops.  According to The Huffington Post:

In interviews with the paper, some Marshals told The Wall Street Journal they were worried not only about the wasted money, but also about the prospect of criminals getting hold of the radios and using them to gain access to privileged law enforcement activities.

Yikes.  Now, the Marshals are saying that it might be a function of poor record keeping, rather than an actual equipment loss.  Nevertheless, they can’t really say one way or the other, a fact that may pose a security risk to those people who rely on the Marshals for protection.

And even if it’s just a matter of poor record keeping and not actually losing the radios, that probably should not give us any additional comfort.  Unless, of course, they use a different record-keeping system for the people they’re supposed to be tracking.

Texas Woman Adds New Twist to Classic Banana Peel Case

In every 1L Torts class, new law students encounter cases involving plaintiffs who slipped on banana peels. Each case assesses the liability of premises owners based on a variety of factors, such as the condition or location of the peel. But just how many rogue banana peels are out there, anyway? Maybe it is time for casebooks to start updating their material.

They can start with the case of the woman suing a steakhouse chain after slipping on a peanut.

According to a report out of the El Paso Times, a Texas woman is seeking $1 million from Texas Roadhouse after slipping on a peanut shell thrown on the floor by a patron. The restaurant passes out peanuts to patrons and permits the shells to be discarded on the floor. The woman claims that Texas Roadhouse is responsible for the shells and should have either warned her of their presence or removed them.

Aside from the peel/shell distinction, this case is remarkably different than those read in law school. For starters, unlike the banana peel cases, this case doesn’t involve a single item mistakenly left on the floor. For anyone who has ever dined at these “Texas-style” steakhouses, peanut shells are scattered throughout the floor. Their condition is open and obvious.

More importantly, this case involves an object known by the landowner to be on the floor. Questions involving the condition of the shell or how long it has been left on the floor are moot. Instead of debating such minutiae, the inquiry can shift to whether the shells constituted a hazard and whether the plaintiff should have been aware of their presence.

These are, of course, questions that we actually encounter from time to time in our practice.

Public Service Announcement: Beautiful Music for Beautiful Minds

In a departure from the usual, we offer this Abnormal Public Service Announcement.

As previously reported at Abnormal Use, I served as Chair of the South Carolina Bar HELP Task Force which was formed to educate lawyers, judges and law students about depression, suicide and substance abuse.  You can read my previous post on “The Lawyers’ Epidemic” here.  I am continuing my interest in mental health issues by serving on the Board of Directors of Gateway House, a non-profit clubhouse which provides rehab services to the severely mentally ill in the Greenville, South Carolina, community.

As with any non-profit, community support is vital to the development of Gateway’s programs.  On August 9, 2013, Gateway presents “Beautiful Music for Beautiful Minds,” featuring the music of local band Stereo Reform.  This community event will be held at Zen, 924 South Main Street in Greenville, South Carolina.  Tickets are $50.00 each, and include hors d’oeuvres, a silent auction and beverages.

All proceeds benefit Gateway.

You may buy your tickets or make a donation online at or by calling 864-242-9193.

Gateway’s proven and unique clubhouse model offers the greatest hope for long-term success for adults with mental illness.  Why?  Because Gateway provides members with a sense of hope, confidence and belonging.  Gateway does this by offering a world of opportunities to develop social, educational and employment skills.

At Gateway, the focus is not on the treatment of mental illness, but on helping members become as productive and independent as possible.  Programs include Transitional Employment which gives members the opportunity to work in competitive jobs in business and industry, rather than in sheltered workshops or created jobs.  Most of these jobs are part-time and last from six to nine months.  Members gain experience, confidence and a sense of accomplishment, improving their chances for living a more productive life.

One of the key principles of the clubhouse model is to provide meaningful work.  Gateway does this by providing a day program in which members participate in various work units.  This includes the kitchen unit where members plan meals, shop for groceries, and prepare and serve breakfast and lunch on a daily basis.  Members also operate the member bank which allows members to deposit and save money, write checks and pay bills, and learn to manage and budget their money.  Finally, members operate the clerical unit, which involves recording clubhouse data and information daily, transitional employment wages and hours, and the compilation of monthly reports.  The clerical unit is also responsible for recording clubhouse attendance and handling all financial billing.

On behalf of the Gateway members and their families, thank you for your support!

Friday Links

Today sees the release of The Wolverine, the latest Marvel Comics movie blockbuster (once again featuring Hugh Jackman as the title character).  We’re torn over whether to see it after the disaster that was 2009’s X-Men Origins: Wolverine. Above, you’ll find the cover of Wolverine #2, published way, way back in the golden age of X-Men comics in 1982. (Yes, we bought this issue and enjoyed it back in the 1980’s.). Though not legally themed (and thus, technically off topic for Friday Links), nostalgia prompts us to post this cover in light of the release of a major motion picture featuring the same character. Don’t worry; it’s okay to go off topic sometimes.

Sigh: “Why do people think the lady who sued McDonald’s over hot coffee is dumb?”  Once again, we direct everyone’s attention to Abnormal Use’s “Stella Liebeck McDonald’s Hot Coffee Case FAQ,” in which we used the original documents from the case and contemporary media accounts to dispel the myths about the case.

Meanwhile: “There seems to be something inherently sad attached to piano bars.

Meanwhile, in movie lawsuit news, we direct you to this article from Austinist entitled “Terrence Malick Can’t Be Bothered With Your Lawsuit.” Malick, of course, is the famed director of Days of Heaven, The Thin Red Line, and Badlands.

Speaking of movies, this is the coolest (and scariest) movie trailers we’ve seen in some time. (Hat tip: Shaun Usher).


Abnormal Interviews: Daniel Hartis, Author of “Charlotte Beer: A History Of Brewing In The Queen City”

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Daniel Hartis, author of the relatively new book, Charlotte Beer: A History of Brewing In The Queen City. Why the author of a book about local beer? The answer is two-fold. First, we here at Abnormal Use love to experiment (in moderation of course) with the greatest craft beers our region has to offer. (You may recall that we once interviewed Adam Avery of the Avery Brewing Company regarding his company’s Collaboration Not Litigation Ale.). Second, Mr. Hartis, in his book, explores not just the modern culture of craft beer but also the evolution of the legal and political climate governing breweries in his mighty tome. That gave us just enough of a hook to interview him on our legal blog (which we probably would have done anyway, despite that hook, due to the cool topic).  Mr. Hartis was kind enough to submit to a brief email interview, which appears as follows.

ABNORMAL USE: What is it about Charlotte, North Carolina these days that is so favorable to new breweries?

DANIEL HARTIS: Charlotte has become well-known as a city of transplants, and I think the current craft beer scene in the city is proof of that. Some of these transplants come from other cities with established beer scenes, and I think they expect that here and want to support the local breweries. Charlotte is one of the fastest-growing cities in the nation as well, which doesn’t hurt. We may not match Asheville in terms of numbers of breweries, but a larger population means we’ve probably got a larger number of craft beer drinkers.

AU:  What do you think is the biggest legal obstacle to small brewers in North Carolina?

DH: Up until recently, I would have said zoning. Breweries could only exist in Charlotte’s industrial areas, which really limited them in terms of locations. The City of Charlotte’s planning department, however, just passed a microbrewery text amendment that allows breweries to exist in additional districts. Shortly after, The Olde Mecklenburg Brewery announced that they’d be moving into a larger building down the street, and The Unknown Brewing Company also leased a building just three blocks away from the stadium. Let’s hope that amendment also opens doors for Free Range Brewing, Sycamore Brewing, Regimental Brewing and Dukbone Brewing Co.

Intellectual property rights continue to be an issue, and several lawsuits have been filed in recent years over trademark disputes. Waynesville’s Headwaters Brewing Company rebranded to BearWaters Brewing Company earlier this year after receiving a cease-and-desist letter from Victory Brewing in Pennsylvania. Craft breweries will typically avoid litigation, but expect these trademark disputes to rise in relation to the number of breweries. After all, there are only so many hop puns out there!

AU: What do you think is the biggest obstacle to consumers of craft beer in North Carolina?

DH: To be honest, I think consumers have it pretty good here in NC. In addition to the state’s many great breweries, NC is also home to bars and bottle shops devoted to craft beer. Some of the nation’s best breweries distribute here as well, and if you compared our selection of brands to other states I think you’d come away impressed ( is a good site for this).

Speaking personally, I would like to see our breweries here in Charlotte and the rest of NC start packaging in 12 oz. bottles or cans. I understand why they don’t, as bottling and canning lines are expensive and an investment that many young breweries just can’t make. Down the road, though, I hope it’s a lot easier to go into your neighborhood bottle shop and pick up a six-pack of local beer, as opposed to a growler of it at the brewery.

AU: What do you think has been the biggest legal victory for the craft beer movement in the Carolinas?

DH: Without a doubt, the biggest legal victory for craft beer in North Carolina’s history was when Pop the Cap was passed in 2005. Before this point, only beers at 6 percent ABV or less could be sold in the state. This kept out not just a certain craft beer here or there, but entire styles of beer. Go into any bottle shop in Charlotte and I think you’d be hard pressed to find all that many under 6 percent, though session beers are on the rise (and I’m a big fan of lower-alcohol beers, but it’s nice to have options!).

AU: Historically, North Carolina, and Mecklenburg County, in particular, established Prohibition locally before the 18th Amendment became the law of the land nationally. How did we get from there to here?

DH: Before Prohibition, the nation was dotted with small, local breweries, and only recently did the country surpass the number of breweries it boasted prior to “the great experiment.” The reason breweries are popping up all over the country is the same reason they’re thriving in Charlotte: people want to support local businesses, and they want to enjoy a well-crafted beer. Part of it can also be attributed to the aforementioned transplants, I think. The Prohibition sentiment was especially strong in “the Bible belt,” and perhaps a more diverse population helped diminish those attitudes toward alcohol.

AU: How did you come to write a book about the Charlotte craft beer community?

DH: I founded in January of 2011 out of a desire to write about beer and a way to keep all of Charlotte’s beer information in one central place, for my needs as much as anyone else’s. I went to school for journalism, and so I always tried to maintain a standard of quality writing on the site, even if I was just throwing up a quick paragraph about an event. In the summer of 2012, The History Press – publishers of beer books for cities like Asheville, Baltimore and Charleston – approached me to see if there was enough of a history here in Charlotte to merit a book. At that point, my knowledge of the beer history here started from 2009, the year the Olde Mecklenburg Brewery came to town. After doing some research, though, I discovered a healthy portion of brewing history, especially in regards to the ‘90s breweries. I was excited to pursue that further and learn more, and so I agreed to take the project on.

AU: How has the expansion of social media assisted in the growth of the craft beer movement?

DH: I think social media plays a key role in the craft beer world, though perhaps not more so than in any other industry. When I started the blog a couple of years ago, Blair (@QueenCityBeer) and I were the only ones using the #cltbeer hashtag on Twitter. Over time it really caught on, and now many of the city’s breweries, bars, restaurants and bottle shops use it to share Charlotte beer news, specials or events. It allows them to reach the true beer geeks in the area that follow the hashtag, just as it allows them to share beer-related info with people who may be unfamiliar.

I’ve come to meet so many good people just by talking about beer on Twitter or Facebook. What might seem like a cursory chat on the Internet often develops in a “real-life” friendship, and I’m very grateful to have made so many friends this way.


AU: Favorite North Carolina beer?

DH: With the number of breweries we have in the state producing great beer, it would be tough for me to choose just one. And that’s the beauty of our beer scene here in Charlotte, too: we are privileged to have a very diverse group of breweries that ensures there is something here for everyone.

AU: Favorite non-local beer?

DH: That really is a difficult question. If I had to choose a favorite, I think I’d go with Founders Brewing’s Kentucky Breakfast Stout (aka KBS). It’s brewed with coffee, chocolate and oatmeal, and then aged in bourbon barrels for a year. And yes, it’s as delicious as it sounds.

AU: Favorite style of beer?

DH: I can honestly say there’s not a style of beer I dislike. For that reason, it’s tough for me to nail down just one favorite style. The mood I’m in, the weather, what I’m doing at the time – these can all dictate the type of beer I drink. That being said, I really enjoy stouts, Baltic porters and smoked beers.

AU: Favorite beer related website?

DH: I regularly visit Beer Pulse for beer news, Oh Beautiful Beer for beer design and Good Beer Hunting for its unique photos and writing. Oh, and First We Feast offers a really fun look at beer (and food) through a pop culture lens.

AU: Favorite song about beer?

DH: It’s not exactly a testament to the responsible enjoyment of fine beverages, but I’ll go with Sublime’s “40 oz. to Freedom.” I was a fan of Sublime well before I could (legally) drink, so it’ll always hold a special place in my heart.

BIOGRAPHY: Daniel Hartis is the founder of and the author of Charlotte Beer: A History of Brewing in the Queen City. His next book, Beer Lover’s The Carolinas, will be published by the Globe Pequot Press in January 2014. When he’s not writing about beer, he enjoys spending time with his wife and two children. You can follow him on Twitter at @CharlotteBeer.

Thoughts on the National Foundation for Judicial Excellence and its Ninth Annual Symposium

The National Foundation for Judicial Excellence just concluded its Ninth Annual Symposium, “From Jurisdiction to Jurisprudence:  Emerging Issues in State and Federal Constitutional Law.  Over 80 state court appellate judges from across the United States attended the event in Chicago.  Headline speakers included Rod Smolla, acclaimed First Amendment Scholar and noted appellate lawyer; Professor Richard Epstein of New York University School of Law and Professor Akhil Reed Amar of Yale University Law School, both known nationally as preeminent constitutional scholars.  The NFJE was created nine years ago for the purpose of providing and preserving an independent and well-educated judiciary.  The Board of the NFJE strives to provide an educational opportunity for State Appellate Court Judges that are on cutting edge legal issues from the point of view of Civil Defense Bar and Corporate America.

Recently, I was speaking to a group about the group, and I was asked, “Why are you willing to volunteer so much of your time to the NFJE?”  The answer to that question lies in the words of President Theodore Roosevelt, spoken during his Inaugural Address on March 4, 1905.  “Much has been given to us,” President Roosevelt said, “and much will rightfully be expected from us.  We have duties to others and duties to ourselves; and we can shirk neither.”

The Board and the Program Committee of the NFJE are made up of lawyers who give generously of their time, talent and treasure.  Each NFJE Symposium is a labor of love and our volunteers feel an obligation to improve our civil justice system.  Every citizen of the United States has a right to the peaceful resolution of their civil disputes.  As lawyers, we have the honor of advocating for our clients in matters brought before our state courts.  However, as officers of the court, we also have a duty to ensure that our courts are up to the tasks of making the right decisions, at the right time, in each and every case.  Our society is premised upon the rule of law and it is essential that our citizens have confidence in the ability of our courts to decide properly the matters brought before them.  The Constitution of the United States of America was established “. . . in Order to form a more perfect Union, establish Justice, insure domestic Tranquility… promote the General Welfare, and secure the Blessings of Liberty to ourselves and our Posterity . . .”  At the NFJE, we believe that a well-educated judiciary is the key to preserving the constitutional rule of law and our civil just system.

Executing the mission of the NFJE is no small endeavor.  Our successes flow from our strong Board, excellent Program Committee, and generous contributions from thousands of civil defense trial attorneys across the country.  Our volunteer lawyers shirk neither their duty to themselves nor to the civil justice system.  We believe that we are providing the judiciary with an educational opportunity that is vital to this grand democratic experiment and true to another one of President Theodore Roosevelt’s exhortations, “There is no good reason why we should fear the future, but there is every reason why we should face it seriously, neither hiding from ourselves the gravity of the problems before us nor fearing to approach these problems with the unbending, unflinching purpose to solve them aright.”

[Editor’s Note: Mills Gallivan served as the President of NFJE during this Symposium (July 2012 to 2013), and he will serve as Chairman of the Board in 2013-2014.]

Facebook, Subpoenas, and Brady v. Maryland in Texas

You know how we here at Abnormal Use adore court opinions and social media.  Accordingly, we couldn’t resist sharing this very recent Texas state court appellate opinion, arising from a forgery conviction, in which the issues at hand were Brady v. Maryland and Facebook.

The opinion in question is Futch v. State, No. 10-11-00283-CR (Tex. App. – Waco July 18, 2013, no pet. h.) [PDF].

Apparently, just before opening statements, the following lenghthy exchange took place (as set forth in the opinion):

[Defense Counsel]: Yes. Judge, a few minutes ago [Prosecutor] made a Brady type disclosure to me. I don’t want to run the risk of misstating what he told me.

If you’ll tell the judge.

[Prosecutor]: I’ll do it. Judge, there was one witness that was on our subpoena list. Her name is Sarah Parrish. She drifts. She’s very difficult to find. She’s not stable. The subpoena on her actually was never served. It went to Coryell County with her last known address, and they told us—they sent it back, “Unable to serve subpoena.” She showed up today. Her remark to me was much like it was to the officers the night of this – when the defendant was arrested, that he had permission from the check holder. She, technically, was never served by subpoena. I saw her at lunch and I talked with her at lunch, and she said, “Are you going to need me right now?” I said, “no,” and she said, “Could I go get lunch and then come right back or be back by 1:30?” I said, “sure,” because I don’t really have any desire to call her to the stand. As soon as I saw [Defense Counsel] after that, I let him know what she had said, and that’s the gist of it. I mean, quite honestly, I find her completely untruthful, and I don’t see any need to call her. That’s why – in the interest of fairness and disclosure, I wanted to give him everything we had on that. Today is the first chance I’ve ever had to talk to her, at lunch.

THE COURT: She never actually got served with the subpoena?

[Prosecutor]: No. She just showed up today, because the way the officer –the only way the officer – she has no phone number, she has no permanent address that we can find her at, and either one of the deputies or investigators from Coryell County or another police officer – I’m not sure –sent her a Facebook message. That’s what her mom said was the only way to get in touch with her was to send her a Facebook message and wait. They didn’t know if they would have her here in time or not. That’s what they were told. They sent her a Facebook message, and she told me she got it, I guess, this morning, and she showed up.

THE COURT: Modern culture, nothing like it.

[Defense Counsel]: Judge, for the record, I’ve been looking for her, myself, for two months. I turned every rock I could, including using the Facebook …. We have not had any response at all. Now, this is a very crucial element of the offense, of course. We don’t have the witness. We don’t have any means to get her.

[Prosecutor]: She said – the best I can say is she said she’d be back at our office at 1:30, and we were over here before 1:30, and I said I’d come back for her if we needed her.

THE COURT: [Defense Counsel], did the defense issue a subpoena for her also?

[Defense Counsel]: No. I didn’t know where to issue it, Judge. I didn’t know where to send it.

THE COURT: So what is it you’re suggesting that I do about it?

[Defense Counsel]: Well, I want to get this crucial piece of evidence before the jury. I mean, it’s a crucial part of their case. I don’t want to break any rules of decorum or anything like that, Judge, but I want to get some guidance from the Court about how to do it.

THE COURT: Well, my suggestion is to find the witness.

[Defense Counsel]: I don’t know where to look.

THE COURT: I don’t either.

[Prosecutor]: I mean, she may be back at our office. Like I said, we left at 1:15.

[Defense Counsel]: Well, you know, I can’t get in the DA’s office without an escort, Judge.

THE COURT: Find out if she’s back in you-all’s office. If she is, serve her with the subpoena.

[Prosecutor]: Okay.

[Prosecutor # 2]: We don’t have a subpoena for her anymore. Right?

[Prosecutor]: It came back not returned. I don’t have another one to hand her now. It has come back unable to locate.

THE COURT: Where is the original subpoena?

[Prosecutor]: To be honest, I don’t know. I handed it to my investigator. It was sent to Coryell County.

[Prosecutor # 2]: It was sent to Coryell County, and they sent the return back.

THE COURT: Well, if she’s over there and she comes to your office, have her brought over here. Escort her with an officer, if you have to, and I’ll talk with her.

[Prosecutor # 2]: Okay.

[Prosecutor]: Do you want me to go look right now before we get going?

THE COURT: You can call. I want to get the jury in here.

[Prosecutor]: Okay.

On appeal, Futch contended “that the State’s suppression of evidence favorable to his defense violated the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution or Article 1, Section 19 of the Texas Constitution” and that the State withheld oral testimony in violation of [Brady] by dismissing a witness who had voluntarily come to court to testify for the State. However, the court of appeals found that Futch did not preserve the issue for review.  Specifically, the court held that Futch’s attorney’s generalized reference to a “Brady type disclosure” and failure to object or otherwise move for a continuance waived the complaint. Now, as a civil litigation blog, we are more interested in the social media component of this case than the criminal procedure angles. However, we all must serve subpoenas, and we all face encountered difficult to locate witnesses whose online presence may be the only evidence of their whereabouts. Accordingly, FYI.

Reader Mail: Lawyer Sues Apple Over Porn Addiction

From time to time, we here at Abnormal Use receive recommendations on potential posts from our dear readers. Typically, readers alert us to wacky product lawsuits or hot coffee accidents. Such cases are right up our alley.

Other times, our readers think highly enough of us to send us cases like this one.

According to a report from Above the Law, a Tennessee attorney has sued Apple seeking protection for his porn addiction. That’s right. Apple created a porn addiction, and our readers thought we would be the perfect ones to write about it. They were correct, we suppose.

At first glance, the suit obviously sounds ridiculous. “Porn” addictions can be bred from anything. It depends on the user, not the vehicle bringing the access. On the other hand, the suit does raise some novel ideas. The plaintiff requests that Apple sell all products with a pre-installed porn blocker which can only be unlocked with a waiver filed with the company. The idea is not completely insane; however, we assume most people would prefer not to leave a paper trail granting them access to pornography. Plus, we would not envy the Apple employee charged with the handling of such waivers, as certainly, that worker would be inundated with paperwork.

Nonetheless, the plaintiff’s suit appears to be misplaced. The actual vehicle for the transmission of pornography in this case is the Internet itself – not Apple products. If Internet access to explicit material is a problem, then the proper target is much larger than Apple. Porn blockers on Apple computers will hardly prevent such access when the Internet is now as accessible as a water fountain.

We will monitor this suit as it moves forward, but we know how this one will probably end. The plaintiff will most likely get a legal lesson on not blaming other for his lack of self-control. If that weren’t the case, then porn-access litigation would snowball out of control (making the asbestos litigation look small by comparison). No one wants to pick up a catalog full of Victoria Secret models wearing overcoats.

(Hat Tip: Jim Beck of the Drug and Device Law blog).

Friday Links

Above, you’ll find the cover of Manhunter #21, published not so long ago in the halcyon days of 2006.  We see Kate Spencer, Manhunter’s alter ego, with her costume falling from her briefcase.  Get this! She’s an Assistant United States Attorney by day.  Here’s an excerpt from her character biography on Wikipedia:

Kate Spencer is a federal prosecutor who grows increasingly tired of seeing guilty criminals evade punishment. Copperhead, a supervillain on trial for multiple murders and cannibalism, avoids a death sentence and escapes from custody after killing two guards. An angry Kate takes matters into her own hands, stealing equipment from an evidence room and killing Copperhead. Calling herself Manhunter, Kate blackmails a former weapons manufacturer for numerous villains named Dylan Battles — who is in the Witness Protection Program — into building, maintaining, and upgrading her armor, weapons, and gadgets.

How about that?

Via his Twitter account, our own Stuart Mauney directs us to this article, entitled “Epidemic of Depressed Lawyers!“, by trucking lawyer Mark Perkins. As you may recall, Stuart has written on similar topics right here at Abnormal Use. In fact, not too long ago, Stuart served as the Chair of the SC Bar HELP Task Force, educating lawyers and judges about substance abuse and mental health issues in the legal profession. If you’d like to follow him on Twitter to learn more about these or other legal issues, you can do so here.

More evidence that Susan Saladoff’s “Hot Coffee” documentary is having an effect on the population. Sigh.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Illinois Federal Court Compels Production of Plaintiffs’ Facebook Data

From a very recent court opinion: “Postings on Facebook and other social media present a unique challenge for courts, due to their relative novelty and their ability to be shared by or with someone besides the original poster. Nonetheless, a court may compel production of a party’s Facebook information if the party seeking disclosure makes a threshold relevance showing.”

You think? Well, sometimes, but not always. Traditional discovery rules and jurisprudence remains helpful in such inquiries.

The quote above is from Higgins v. Koch Development Corp.,  No. 3:11–CV–81–RLY–WGH (S.D. Ind. July 5, 2013).

Note: That opinion was released on July 5, which was a Friday, if you recall.  Someone didn’t take a three day weekend, apparently.

The fact of the case were these: In 2009, the Plaintiff’s visited a water amusement park.  One of the attractions at the park, the “Bahari River,” had  “muratic acid and liquid bleach filtered into the water by a filter pump that was connected to a breaker.”  The Plaintiffs alleged that they suffered toxic chemical injuries and pulmonary problems as a result of improper maintenance of the filters and pumps.

At their depositions, the Plaintiffs confirmed the existence of their Facebook pages (of which defense counsel was no doubt previously aware).  Interestingly, the Plaintiffs agreed to capture and preserve their complete profile history using the “Download Your Information” function (although they apparently did not produce this information to the defense, which prompted a motion to compel).  The opinion does not reveal when they actually preserved the information – whether it be in the deposition room itself or sometime later. In refusing to produce the Facebook data, the Plaintiffs invoked the traditional arguments (overbreadth, irrelevance) but also argued that the production of the data would violate the privacy rights of non-parties whose images became part of the Plaintiffs’ profiles via tagging.

The court quickly disposed of the relevance objection, noting that the specific claims made by the Plaintiffs in the lawsuit made the information contained on their social media profiles relevant indeed.  As the court observed, “Koch claims that [Plaintiffs’] Facebook content may reveal relevant information as to the extent their injuries have impacted their enjoyment of life, ability to engage in outdoor activities, and employment, along with their claims regarding permanent injuries, lack of pre-existing symptoms, and impairment of future earnings capacity. Since the extent of [Plaintiffs’] losses in these areas directly impacts the appropriate damages award, the court finds this information relevant.” No surprise there, especially if the Plaintiffs used Facebook as much as the opinion suggested they do.

Sophisticated as to Facebook’s privacy settings, the Plaintiffs also claimed the request violated their privacy rights (as they had made their profiles as private as Facebook allows them to be).  This is argument, of course, is particularly weak, as Plaintiffs clearly put their lifestyles at issue in bringing the suit and alleging those damages, and thus, the mere fact that they have shielded relevant data using Facebook’s privacy settings does not relieve them of an obligation to produce relevant information.  In rejecting Plaintiffs’ argument on these grounds, the court noted that Plaintiffs “cite[d] no cases supporting the proposition that setting a Facebook profile to ‘private’ entitles a person to a greater expectation of privacy or can act as a shield to discovery.”

This, of course, leaves us with the most interesting argument Plaintiffs made: that the request violated the privacy of non-parties. You’ve got to give the Plaintiffs’ lawyers points for creativity on that one. Essentially, Plaintiffs argued that their friends – other Facebook users – posted comments on Plaintiffs’ Facebook walls or appeared on Plaintiffs’ Facebook timeline by being tagged in photographs or posts in which Plaintiffs were also tagged.  Unpersuaded, the court characterized this argument as “unfounded,” citing another court which had already reached the conclusion that tagged photographs are discoverable if relevant because “once the plaintiff was tagged in the photos, they became in the plaintiff’s “possession, custody, or control.”

Clearly, this is the right result.  In light of the resistance the Plaintiffs exhibited in producing these profiles, we suspect there is some good impeachment available for the defense to find.