As you know, we here at Abnormal Use often remark upon social media evidence in litigation and attempts to authenticate such evidence in an employment discrimination case.

Here are some thoughts from the U.S. District Court for the Southern District of Indiana on social media evidence authentication:

These exhibits purport to be Facebook conversations between Plaintiff and [the defendant’s former] employees in support of her reduction in force allegations. She appears to have re-typed the conversations on clean sheets of paper and submitted them as her evidence. There is no documentation from Facebook detailing these conversations or any other indicia of reliability; consequently, the exhibits are unreliable and will not be considered.

See Maddox v. Meridian Sec. Ins. Co., No. 1:13–cv–01551–RLY–DML (S.D. Ind. June 30, 2015).

Ouch. As you might suspect, the Plaintiff was pro se.

If you have been paying attention to social media of late, you have no doubt heard about Devorise Dixon and his KFC rat.  If you are slightly braver, then you have seen the pictures, which can be found here.  And if you don’t have short term memory loss, then you are skeptical.

Recently, Mr. Dixon took to social media, posting the image of the rat and claiming, “I went to KFC bought a 3-piece chicken tender! As I bit into a piece of it I noticed that it was very hard/tough and rubbery! Which sent this deep chill throughout my body. I looked down at it and saw that it was a cooked rat!!! Made me feel sick! Never new chicken was shaped like rat’s and had tails! Bought this from KFC on Wilmington and 120th in the shopping center! WATCH WHAT YOU EAT PEOPLE ARE SICK OUT THERE!” [His typos, not ours.]

As all viral horror stories go, the story exploded.  According to Mr. Dixon, he received a fried rat in his chicken fingers order from a KFC in Watts, California.  Additionally, Mr. Dixon has claimed that KFC apologized to him and that the manager admitted he was served a rat.  Mr. Dixon believes “IT’S TIME FOR A LAWYER!!!”  He also encourages people to “BESAFE DON’T EAT FAST FOOD !!!” KFC took to Facebook and stated that it was investigating the matter and at this time had no evidence to support Mr. Dixon’s claim.  Additionally, KFC claims it is aggressively trying to reach Mr. Dixon.

Immediately, skeptics took to debunking Mr. Dixon’s claim, including this image, the poster of whic believes that the whole thing is bogus.  Regardless of whether or not his claims are bogus, Mr. Dixon has catapulted into Internet fame.  We will always remember Anna Ayala, who you will remember more famously for alleging that she found a severed finger in her Wendy’s chili. While we wait for this story to develop, check out this list of the 10 fast food lawsuits.

Our editor, Jim Dedman, is in Chicago today for the DRI Product Liability Committee Fly-In. You may remember that he is chair of that committee’s newsletter section. If you’re there, too, say hello! Because this is Friday Links, we tried to find an appropriate comic book cover depicting Chicago. However, we were unsuccessful. So instead, we bring you the cover of Kicking Television: Live in Chicago, Wilco’s 2005 live album recorded in the Windy City. In fact, according to Wikipedia, the album was recorded May 4 through 7, 2005, ten years ago this week. How about that?

Okay, if you’ve not seen the news story about the police officer suing Starbucks for spilling his free cup of coffee on himself, please see here. Apparently, he testified for eight hours on the stand at trial this week.

Are you following Abnormal Use on Facebook? If not, please join the discussion over there, as we’d love to have you! See here.

Our favorite tweet of late comes from our own Stuart Mauney:

Do not ask me if I want to eat in bar when I have a reservation at your restaurant. I don’t care if it is same menu & service.

— C. Stuart Mauney (@stuartmauney) April 27, 2015

According to the old axiom, there is no cure for the common cold.  Nonetheless, cold medications dominate the shelves of any pharmacy.  While there may be no “cure,” pharmaceutical companies have made billions of dollars offering products aimed at relieving cold symptoms.  At least, in theory.  According to a class action lawsuit filed in the British Columbia Supreme Court, the claims of Canada’s best selling cold medication aren’t worth snot.

The proposed class filed suit against Valeant Pharmaceuticals and Afexa Life Sciences way back in 2012 alleging that the companies misled consumers into believing that the cold medicine known as Cold-FX could bring “immediate relief” for cold and flu symptoms.  According to the complaint, the defendants commissioned research which they represented to consumers as providing “science” to back the product.  While the research may support a claim that Cold-FX may reduce the frequency, duration, and severity of cold and flu symptoms, the science allegedly did not support the “immediate relief” representation.  Moreover, the plaintiffs allege that the defendants omitted the fact that research participants took Cold-FX over periods ranging from 2-6 months and that prolonged use of the drug was necessary to experience any added benefits.  Valeant and Afexa have since removed and representations regarding “immediate relief” from product packaging.  However, there are still no disclosures about how long the drug must be administered.  Back in February, the plaintiffs moved to amend their pleadings to assert additional causes of action for fraud, fraudulent misrepresentation, and deceit.

According to a report from the National Post, the defendants filed an affidavit in support of their product in which the cited their popularity on social media.  Apparently, Cold-FX has  24,000 likes on Facebook and 26,000 mentions on Twitter. One comment said, “Cold-FX is like some miracle pill,” and another claimed it “knocked my cold away.”  Case closed.

We here at Abnormal Use are interested to see what will come of this lawsuit. As people who often find themselves falling victim to colds, we would sure love to find a product that actually could provide “immediate relief.” We assume nothing like this exists now nor will it ever be created. As such, when we see a product claim that it provides “immediate relief,” we take it as mere puffery. Of course, maybe they haven’t heard of the old axiom in Canada.

The craft beer community is a passionate one. Bell’s Brewery makes fantastic beer, and as you probably know, it is a popular name in the craft brew world. However, Bell’s has been garnering negative press lately for its perceived bullying of a smaller Asheville, North Carolina area brewery in a trademark dispute.

Since we here at Abnormal Use maintain offices in both of the Carolinas, we felt compelled to comment upon this matter.

At issue is a brewery named Innovation Brewing. So, where’s the dispute? The names Innovation Brewing and Bell’s Brewery are so dissimilar that no one could possibly confuse the two, right? Well, not according to Bell’s, which believes there is a risk of confusion between the companies in light of an unregistered slogan that Bell’s has used in some marketing materials: “Bottling innovation since 1985.”

Okay. Seriously, how drunk would a customer have to be before trying to buy a Bell’s IPA and accidently ordering an Innovation Brewing IPA?  “Out of this world” drunk, according to the co-founders of Innovation Brewing.  In a statement issued on Facebook, the co-founders stated: “We do not believe that any human on Earth would confuse Innovation Brewing with Bell’s Brewery, despite their slogans.”

As for that backlash from the passionate craft beer community? At least one bar in Asheville, North Carolina stopped serving Bell’s shortly after news of the legal dispute became public.  There’s also a petition started by craft beer enthusiasts called the “Secret Beer Group” asking Bell’s to drop the matter. The petition has over 5,000 supporters.  And just for good measure, there’s some gem posts on the beeradvocate.com message boards with comments such as: “I’m calling bully and [BS] on Bell’s. No one in their right mind would ever confuse this.” We’ll be keeping our eyes on this one . . . .

If you’ve not seen the legal comedy, From The Hip, you need to do so immediately. A fun relic of the 1980’s, it was written, in part, by David E. Kelley, who would go on to create TV’s “Ally McBeal” and “Boston Legal.” Let’s just say that the protagonist, played by Judd Nelson, could not get away with most of his antics in a real courtroom.

Claims the writer Jesse Singal: “You’ll Be Less Stressed If You Check Your Email Less Frequently.” Is that supposed to be a good thing? How can one check email less frequently? Is that even possible? Why would one want to venture out into the world when one might risk missing an email?

Vinyl alert: If you’re in South Carolina tomorrow, you may want to visit the Greenville Record Fair.

We’d be remiss if we didn’t alert you to the fact that the Greenville County Bar Association has now joined Twitter. Behold:

New year, new outreach. The attorneys of the Greenville County (SC) Bar Association are pleased to be on Twitter. Follow along.

— Greenville Bar Assoc (@GvilleBarAssoc) January 10, 2015

We here at Abnormal Use and Gallivan, White, & Boyd, P.A. hope that everyone has a wonderful Christmas yesterday. With that in mind, we’ve got time for one more Christmas themed comic book cover, so we direct your attention to that of The New Archies #21, published not so long ago in 1990. As you can see, the Archie gang is up to its usual set of tricks.

Last week, on December 17, we published a piece about the U.S. Navy’s new laser weapon. In so doing, we referenced – and included a picture of – Dr. Evil. Well, just three days later, on the final episode of “Saturday Night Live” of the year, Dr. Evil returned. How about that?

Speaking of which, this is our last edition of Friday Links of 2014.

Behold: “6 Predictions For Law Firm Marketing in 2015” from the LexisNexis Business of Law Blog.

Congratulations to GWB shareholder Ron Wray on his election as president of the South Carolina Defense Trial Attorneys Association. For more information, please see here.

Don’t forget: You can follow us on Twitter here and on Facebook here!

So, now that we’re well into December, we can stray a bit from our mission to post legally themed comic book covers and instead focus on holiday themed comic book covers. Above, you’ll find the cover of Green Lantern #18, published way, way back in 1945. This is the original Green Lantern, of course, not the newer version you may have seen depicted more often in popular culture. And as for his sidekick, Doiby Dickles, we’ve written about him before here.

There is going to be a new narrative television series about the O.J. Simpson trial. Too soon, we say.

It’s Christmas, so we must direct you back to Stuart Mauney’s immortal 2011 post: “Lawsuit of the Day: Grandma’s Estate v. Santa and His Reindeer.” We can’t believe that it has been three years since we first posted it here at Abnormal Use. Don’t forget: You can follow Stuart on Twitter here.

You can still vote for Abnormal Use in the ABA Journal‘s Blawg 100 poll! To do so, click here (and you can find us in the “Tort/Consumer” category). We would very much appreciate your support.

Don’t forget: You can follow Abnormal Use on Facebook here and on Twitter here. Drop us a line sometime, will you?

We here at Abnormal Use love coffee. Not just commenting upon the products liability implications of it, but drinking it, as well. Well, we couldn’t resist sharing these findings of fact from a recent federal trademark case in California, that being Starbucks Corp. v. Heller, No. CV 14–01383 (C.D. Cal. Nov. 26, 2014). Behold, as there is now federal authority on the following:

4. Starbucks is a leading purveyor of fine Arabica coffee. The company, which began in 1971 as a single, Seattle-based dry goods store, has grown to approximately 12,000 retail locations in the United States, and more than 8,000 retail locations in over 60 foreign countries.

5. Starbucks owes its worldwide success to its strong reputation for fresh-roasted specialty coffees, brewed coffees, espresso beverages and other products and services it provides. Starbucks is also widely recognized for its knowledgeable staff and superior service.

…

11. The Starbucks Facebook page has more than 37 million likes and more than 20 million visits. The Starbucks Twitter account has more than 6 million followers. Both platforms prominently feature the Starbucks Marks.

 

12. Numerous television programs and movies have prominently featured the Starbucks Marks, including Parks & Rec, The Voice, Ellen, Real Time, The Devil Wears Prada, Zoolander, License to Wed, The Proposal, Clueless, 127 Hours, and You’ve Got Mail.

(footnotes and citations omitted).

Accordingly, if you need a citation for the proposition that Starbucks was prominently featured in Zoolander, this is your case.

As you may recall, we’ve previously noted that courts are becoming a bit more skeptical of social media discovery requests.

Well, the latest example of this trend comes from a federal court in Tennessee.

In Horsnell v. Young Men’s Christian Ass’n of Middle Tennessee, No. 3:13–1130 (M.D. Tenn. Dec. 1,2014), the Plaintiff alleged violations of FMLA and other statutes as well as a retaliation claim. The court was called upon to review certain discovery requests after the defendant filed a motion to compel. Apparently, in response to a particular discovery request, the Plaintiff produced some limited social media data. Dissatisfied with the response, the defendant filed a motion to compel, and the court found as follows:

By its motion, [Defendant] seeks an order compelling Plaintiff to provide certain nonpublic information contained on Plaintiff’s Facebook and LinkedIn accounts. Apparently, Plaintiff has produced certain limited information publically available on these two social networking sites.

This Court has previously found that an adverse party does not have a generalized right to rummage through information that a party has limited from public view on a social networking site. Rather, there must first be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, a discovering party would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account. The undersigned finds that Defendant has failed to make a sufficient threshold showing to support an order requiring Plaintiff to produce copies of nonpublic information from his Facebook and LinkedIn sites, and to that extent Defendant’s motion to compel further response to Interrogatory No. 13 is DENIED.

(quotations and citations omitted).

And that’s it. No longer a novel issue, the breadth and appropriateness of social media discovery requests is now addressed by courts in two paragraphs.

Keep this in mind, folks.