Here we go again with the social media discovery, in our own territory no less. In McKinney v. Pedery, — S.E.2d —-, No. 5165   (S.C. Ct. App. Aug. 14 2013), a family law matter, a husband appealed the trial court’s ruling which had terminated his former wife’s requirement to pay permanent periodic alimony “when the court found that Husband continuously cohabitated with his paramour in contravention of section 20–3–130(B)(1) of the South Carolina Code.” Apparently, that statute requires the termination of alimony “on the remarriage or continued cohabitation of the supported spouse.” Of course, Facebook is at issue in this opinion. Our favorite paragraph of the opinion:

Wife submitted evidence to family law attorneys from Davis Law Firm [Husband’s Purported Cohabitant] kept all of her personal belongings at Husband’s residence, including her clothing, undergarments, shoes, and toiletries. Husband’s testimony that [Husband’s Purported Cohabitant] only packed an “overnight” bag when she traveled to Duncan to care for her grandchildren lends support for the conclusion that [Husband’s Purported Cohabitant] “lived under the same roof” as Husband. Further, Husband admitted that he gave [Husband’s Purported Cohabitant] an engagement ring and that [Husband’s Purported Cohabitant’s] relationship status was listed as “engaged” on Facebook prior to Wife filing for termination of alimony. We are not persuaded by Husband subsequently referring to [her] engagement ring as a “friendship ring” or by [Husband’s Purported Cohabitant] changing her relationship status from “engaged” to “in a relationship” immediately following Wife’s initiation of this action. Rather, this is evidence of Husband’s attempt to downplay their relationship and living arrangements, which we find unconvincing.

(Emphasis added).

So, there’s that.

Above, you’ll find the cover of Four Color #56, published way, way back in 1944. Prominently depicted on the cover is hero detective Dick Tracy. Now, we here at Abnormal Use aren’t criminal lawyers, but we’ve watch enough television to know that the investigating detective probably shouldn’t be touching the body with his bare hands before it’s even been removed from the scene of the crime.  What the heck? Maybe criminal procedure was a bit different back in 1944.

The Rolling Stones have started up litigation against a company alleging misusing their super famous logo.

Walter Olson has the latest on the feud between the Consumer Products Safety Commission and the manufacturer of Buckyballs.  We’ve previously written on this controversy here and here.

If you’re looking for photographs of abandoned tanks, you are in luck.

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

Above, you’ll find the cover of Superboy #90, published way, way back in 1961.  With all this talk of surveillance and privacy in the news these days, we feel compelled to share this issue, which features Lana Lang using a “time-telescope” to spy on future Superman and Lois Lane. “This horrid time-telescope which looks into the future!” Lana exclaims to herself. “It reveals that when Superboy grows up into Superman, he’ll forget me for that reporter, Lois Lane. I’d better do something about it now!” The question: Would the images set forth on the time telescope be admissible in a court of law? We doubt it.

The former members of the historic punk group Black Flag are suing each other. Those are some depositions we’d like to see.  For more, read here.

Adam Davidson of The New York Times had an interesting piece recently on the practice of keeping and billing time. Of course, it goes back to lawyers. An excerpt:

The notion of charging by units of time was popularized in the 1950s, when the American Bar Association was becoming alarmed that the income of lawyers was falling precipitously behind that of doctors (and, worse, dentists). The A.B.A. published an influential pamphlet, “The 1958 Lawyer and His 1938 Dollar,” which suggested that the industry should eschew fixed-rate fees and replicate the profitable efficiencies of mass-production manufacturing. Factories sold widgets, the idea went, and so lawyers should sell their services in simple, easy-to-manage units. The A.B.A. suggested a unit of time — the hour — which would allow a well-run firm to oversee its staff’s productivity as mechanically as a conveyor belt managed its throughput. This led to generations of junior associates working through the night in hopes of making partner and abusing the next crop. It was adopted by countless other service professionals, including accountants.

Friend of the blog Walter Olson, himself of the Overlawyered blog, had a letter to the editor published in The Washington Post. Check it out.

Here’s a warning label on one company’s football helmet: “No helmet system can protect you from serious brain and/or neck injuries including paralysis or death. To avoid these risks, do not engage in the sport of football.” How about that? For more on that label, see this piece at the ABA Journal by Debra Cassens Weiss.

Finally, don’t forget that today is THE LAST DAY to submit your nominations to the ABA Journal for its Blawg 100 competition. For information on how to submit, see here.

Let us turn to Jewell v. Aaron’s, Inc., No. 1:12–CV–0563–AT (N.D. Ga. July 19, 2013), for another social media discovery request. You know how we love to talk about such things.

The request at issue, to be served on a “randomly selected” set of 87 opt-in plaintiffs in the overtime/wage class action, was:

Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your working hours at an Aaron’s store.

At first glance, that seems like a relatively broad request, as it seeks production of all social media posts from 2009 to present.  (In fact, the phrasing of the request, particularly its reference to activity “posted on any internet Web site,” suggests that all comments to blog posts, newspaper articles, or any other website in general would also be responsive to the request.). But note that it limits the request to posts made “during your working hours at an Aaron’s store.”

Might that make the request more palatable to the court?

Let’s see.

In response to the Plaintiff’s objection to the request, the court noted as follows:

Plaintiff objects to the request as unduly burdensome because identifying, obtaining, and producing all statements posted on Facebook or other social media sites from 2009 to the present during work hours of all 87 sample opt-ins would be a “tedious and incredibly time-consuming task.” Plaintiff contends that responding to such a request would require Plaintiff’s counsel “to assist the opt-ins in making a day-by-day, hour-by-hour search of the websites, comparing the date and time of each posting with the schedule of workdays and hours to determine if they coincided.” By way of example, Plaintiff contends that Facebook does not contain a search function, Facebook posts do not contain a timestamp, and such information can only be obtained by “individually interacting with and clicking on each post.” As a result, Plaintiff “estimates” that such a task could require anywhere from 1,323 hours to 26,462 hours depending on the number of daily posts made by each opt-in plaintiff. Plaintiff offered no evidence to support these assertions.

The Court has attempted to verify the accuracy of Plaintiff’s assertions and the potential burden imposed by Defendant’s request. Facebook employs a feature that allows a user to download her Facebook data, including “timeline” information, “wall” postings, activity log, messages, and photographs directly from the website. Once downloaded, the user may view all posts/activity in a single document in chronological order with a date/time stamp.

Indeed. Defense counsel are catching onto this technique and sometimes asking Plaintiffs directly to download all of their Facebook data and produce it directly.

However, the Court didn’t buy it, noting that the “exemplar evidence” from the named Plaintiff “did not persuade [it] that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods,” which was apparently one of the issues raised in the case.  In coming to that conclusion, the Court agreed with the Plaintiff that “whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period as defined in 20 C.F.R. § 785.19.”

In the end, the Court found that the defendant’s justification was mere hope that they might uncover relevant evidence and that the burden imposed upon the opt-in plaintiffs would be too great.

Oh, well.

In the past several weeks, we have commented upon two cases involving a Facebook friendship and its effect on pending civil and criminal litigation. One matter involved a family law matter in which a judge was Facebook friends with the daughter of two competing divorce litigants. Another involved a criminal case in which a juror was Facebook friends with a relative of the victim of the homicide being prosecuted. In both of those cases, the appellate courts discussed generally the nature of a Facebook friendship, but they did not probe more deeply into the specifics of the Facebook friendships at issue. Certainly, the trial counsel in the underlying cases could have litigated the nature and depth of the social media connection more deeply (and in fairness, perhaps they did, but such details did not make it into the appellate opinion). This post will offer a few questions that can be asked to probe these issues more deeply.

When did the Facebook friendship come into being? This is an important question because the origin of the Facebook friendship in question is quite relevant. Did it occur years before the trial? Did it occur prior to or during the events being litigated? Was the friendship request instituted because of a familiarity brought about by the events being litigated? Or, did the Facebook friendship predate the events being litigated and its origin have little, if nothing to do with the matter being tried?

How can the Facebook friendship be characterized? Sometimes, judges, as local officials, maintain Facebook profiles, and it may be that throngs of citizens in the community have connected with their local officials via social media. Thus, it may be telling to know how many Facebook friends each party to the friendship has. Are there thousands, or are their dozens? This may make a difference. This is true even if the individuals are not public figures. Do the users accept every friend request they receive, or are they more discriminating? Have they simply connected via a Facebook friendship, or do they utilize that friendship to communicate further? Do they post on each other’s Facebook walls? Do they send private messages? If so, when, and how often? And, of course, have they ever communicated about the subject matter being litigated through social media?

Who instigated the Friendship request? This could also be important. Again, if one of the parties to the friendship is a judge or community figure, it may be that they are inundated with friend request, of which the friendship at issue was once one.  However, it may be that the friendship at issue was borne of a closer connection, and thus, the identity of the instigating party should be determined.

What is being published on the two profiles at issue? To adequately address this inquiry, one would need to know what the parties to the Facebook friendship might have learned from each other during the friendship itself. Are the friends able to see each other’s private profiles (which may not be accessible to members in the general public)? Have either of the parties to the Facebook friendship posted on their profiles about the events being litigated? Might one friend have seen relevant information about the case on another’s profile?

Have the two met in real life? It’s always important to determine if the parties have met IRL or, rather, if the Facebook friendship is evidence of an offline friendship, as well.

Accordingly, these are issues which should be addressed in any such inquiry.

As we previously noted, the deadline to nominate a legal blog to the ABA Journal‘s list is rapidly approaching:  it is August 9, 2013.

That’s THIS Friday, people.

The rules prohibit us from nominating ourselves, which is probably a good thing, as that spares us the embarrassment of doing so. We probably couldn’t resist the urge to do so if the rules permitted it, so thank goodness we can avoid the issue altogether.

As we’ve previously noted, there are many great legal blogs out there, and we hope that even if we are not your favorite that you will still participate in this process and nominate your favorite blog.  Some of our favorite legal blogs are:

• Popehat. Remind us to never, ever run afoul of Popehat’s Ken White, a criminal defense attorney and fierce defender of online free speech. He dedicates his time and his writing to skewering those who attempt to censor free speech on the Internet.
• The Drug and Device Law blog. The team behind this site, including Jim Beck, Stephen McConnell, Michelle Hart Yeary, John Sullivan, Eric Alexander, and Steven Boranian, clearly know their stuff.  In fact, their posts offer the type of exhaustive detail and extensive analysis that you typically don’t encounter on legal blogs. A fine resource, if you find yourself in this practice area. (Plus, McConnell knows his pop culture, so there’s that.).
• Torts Blog. Run by friend of the blog and law professor Alberto Bernabe, this is a site you need on your blogroll.
• Overlawyered. We’ve noted before that we’ve been reading Walter Olson’s Overlawyered blog for more than a decade. To be honest, we don’t know how Walter does it. He’s one of the most prolific writers and tweeters in the online legal world. A must read.
• The Law and The Multiverse blog. A blog analyzing legal issues in the comic book universe? Why didn’t we think of that? Run by James Daily and Ryan Davidson, this blog is not to be missed.
• Litigation & Trial. Every once and again, we like to leave our comfort zone and read a Plaintiff’s lawyer’s blog.  Well, there is none better than this one operated by Max Kennerly. We disagree with him, lots, in fact, but it’s always good to read opposing views.

You can complete the very brief nomination form here.  It will only take you a few moments.

Above, you’ll find the cover of Kid Eternity #16, published way, way back in 1949.  Note that Kid Eternity, apparently, “helps balance the scales of justice.” But what the heck is going on in the cover? Apparently, he doesn’t just metaphorically balance the scales of justice, he literally does it! Here’s what Wikipedia has to say about this hero:

The Kid was originally a nameless boy (who only ever remembered being called ‘Kid’ by his ‘Gran’pa’) who was killed when a U-Boat sank his grandfather’s fishing boat during World War II. Due to a supernatural mix-up, however, he was killed 75 years too soon (similar to the plot of the 1941 film Here Comes Mr. Jordan) at the time.To rectify the error, the Kid was brought back to life for another 75 years with the mission of upholding good in the world. He was given the power to summon any good historical or mythological figure or animal by saying the word “Eternity” as well as to use the same word to make himself material or immaterial and invisible. Kid Eternity was further assisted on his duties by the clerk who’d made the error, Mr. Keeper. He is sometimes shown summoning fictional figures, like Jean Valjean or the Witches in Macbeth. In Kid Eternity #2 he shows time travel ability.

Those are some pretty odd powers, we must say.

No fair! Taylor Swift now apparently knows the identify of the person who inspired Carly Simon’s “You’re So Vain.”

Without a doubt, the grossest news story of July is this one. The headline: “Flesh-eating maggots discovered in vacationing woman’s ear.”  Be forewarned. We read it earlier this week, and we’re still recovering. Can we sue anyone for mental anguish?

Lastly, Kristopher Tapley of Hitfix, in a prescient tweet, foresees the future of products liability litigation. Here we go again.

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).

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 (SeekaBrew.com 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 CharlotteBeer.com 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.

BONUS QUESTIONS:

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 CharlotteBeer.com 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.

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.