FITBIT, FACEBOOK, AND MORE: USING TECHNOLOGY TO YOUR ADVANTAGE AT THE

CLAIMS LEVEL AND IN LITIGATION

by

Samantha J. Orvis

Garan Lucow Miller, P.C.

Genesee County Office

10801 S. Saginaw, Bldg. D

Grand Blanc, MI 48439

Phone: (800) 875-3700

Fax (810) 695-6488

Sorvis@garanlucow.com

GARAN LUCOW MILLER SPRING BREAKFAST SEMINAR

MAY 23, 2018

D e t r o i t ● T r o y ● P o r t H u r o n ● G r a n d B l a n c ● L a n s i n g ● A n n A r b o r

G r a n d R a p i d s ● T r a v e r s e C i t y ● M e r r i l l v i l l e , I N

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Fitbit, Facebook, and More: Using Technology to Your Advantage at the Claims Level

and in Litigation

ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION (ESI)

I. Obtaining and Preserving Information

i. Send discovery preservation letters from the outset of litigation – applies to not just traditional electronically stored information, but also to social media postings and wearable device logs/data

ii. Ask questions via interrogatory and deposition to help with authentication

iii. Include discovery requests for wearable device data or social media account information

iv. Must establish ownership/control a. Narrow user down to admit use of social media

account (or health data app etc) in question b. Need to admit what device used c. Ask if they posted the content specifically

v. When locating content, you need to preserve it. Can be challenging given changing technology and static nature of site content.

a. When printing hard copy, make sure to include header/footer with date/time stamp, record of website address of document

II. Evidentiary Rules

i. Foundation

a. Laying a foundation – who obtained the information?

1. Witness will need to testify that he/she printed out the information, that he/she recalls its appearance, and it is recognized as such

b. Consider experts in ESI to analyze data from wearable devices, social media sites, or other smart technology

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ii. Authentication (MRE 901) a. Need proof of ownership – critical to authentication

1. Have to show not only that the person owns the account, but that they authored the content/post

2. Why authentication is such a big deal a. Parody accounts – reflect comments or views

of someone pretending to be someone else 3. More challenging ways to obtain information to

authenticate: a. Search computer of person who allegedly

created profile and posting; examine computer internet history and hard drive if used to determine if computer used to originate the profile/posting in question;

b. Search computer applications and obtain information stored on clouds or by health applications

c. Subpoena the companies directly that links establishment of profile/accounts/data to person

SOCIAL MEDIA ACCOUNTS

I. Case Law – Admissibility of Electronic Evidence

a. Michigan

i. People v. Dunn, 2016 Mich. App. LEXIS 942, 2016 WL 2771980 (unpublished)

1. Social media posts by “Sean Smoke” – criminal defendant; Friends of defendant confirmed it was his alias and his Facebook account

2. Court held that this was sufficient evidence to establish that the posts were made on a page belonging to defendant. See MRE 901(b)(1). See also Campbell v State, 382 SW3d 545, 550 (Tex App 2012) (recognizing that one of the problems with authenticating social media postings is that "anyone can establish a fictitious profile under any

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name"); Smith v State, 136 So 3d 424, 432 (Miss 2014) (same).

ii. People v. Thomas, 2016 Mich. App. LEXIS 1649, 2016 WL 4645822 (unpublished)

1. Criminal defendant argues Facebook posting admitted into evidence without proper foundation.

2. Court disagreed: A witness who had personal experience with the defendant’s Facebook page testified that the evidence at issue undoubtedly was what the prosecution claimed. i.e. a screen shot from his Facebook page; Although there was testimony from a witness that speculated that page could have been hacked and comment posted by someone else, speculation unsupported by evidence.

3. Court did not abuse discretion by admitting the Facebook page and comment into evidence.

4. The authentication requirement "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." MRE 901(a). One way of authenticating evidence is by the testimony of a witness with knowledge of the evidence, MRE 901(b)(1). "'It is axiomatic that proposed evidence…need [not] be free of weakness or doubt. It need only meet the minimum requirements for admissibility.'" People v McDade, 301 Mich App 343, 353; 836 NW2d 266 (2013), quoting People v Berkey, 437 Mich 40, 52; 467 NW2d 6 (1991).

iii. People v. Fakher Haydar Al-Yasiry, 2016 Mich. App. LEXIS 1584 (unpublished)

1. Criminal Defendant argued that proper foundation for admitting Facebook photograph not established

2. Court found only necessary foundation was for admission of photograph – someone familiar from personal observation testifies that photograph is an accurate representation

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iv. Yousif v. State Farm Mut. Auto. Ins. Co., 2018 Mich. App. LEXIS 395, 2018 WL 1073273 (unpublished)

1. Suit for first party PIP benefits. Trial court granted MSD for Defendant State Farm and Plaintiff appealed court order denying his motion for reconsideration.

2. Defendant filed MSD based on Bahri (fraud) because Facebook posts contradicted plaintiff’s claims of injury and physical limitations/disability. Court of appeals affirmed.

3. Court did not take up evidentiary issues associated with potential admissibility of social media/Facebook posts at time of trial.

b. Other Jurisdictions

i. Trail v Lesko (Pennsylvania) – Both parties sought access

to the other’s social networking accounts, but the court denied the requests due to intrusive nature not offset by showing that discovery would assist parties in presenting their cases. Pennsylvania Court Rules (Rule 4011, limits scope of discovery) cannot be in bad faith; or cause unreasonable annoyance, embarrassment, oppression, burden, or expense…

1. A requesting party must show “sufficient likelihood” that such an account would include relevant information that is “not otherwise available” before being granted access to it.

2. In determining whether an intrusion is unreasonable, courts to consider the level of intrusion weighed against potential value of discovery to party seeking it.

ii. Griffin v State (Maryland) - Criminal case where trial judge found to have abused discretion in allowing admission of evidence from defendant’s girlfriend’s MySpace profile, without proper authentication.

1. State identified only the date of birth of the creator and her visage in a photograph on the site (not enough to authenticate)!

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2. Maryland Court Rules (Rule 5-901) Requirement of authentication or identification

iii. Tienda v State (Texas) – Court properly admitted the contents of social networking web pages under Tex. R. Evid. 901 because there was evidence to support a finding that the exhibits were what they purported to be—web pages which defendant was responsible for; there were numerous photographs of defendant with his unique arm, body, and neck tattoos.

1. Considered extrinsic and circumstantial evidence to support a finding that the web pages belonged to the defendant and that he created/maintained them.

2. Evidence can be authenticated by direct testimony from witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence.

3. Texas Court Rule (901) Authenticating or Identifying Evidence

iv. Smith v State (Mississippi) – Facebook messages purporting to be from criminal defendant were not properly authenticated, but admission of Facebook messages was harmless beyond reasonable doubt, so judgment of conviction confirmed.

1. Electronic evidence can be authenticated by traditional means and is adequately covered by current rules of evidence

2. Miss. R. Evid. 901 – Authenticating or identifying evidence.

3. Automated messages are not hearsay because messages sent within Facebook and sent via email notification, are not statements – a statement is defined as an assertion of a person

v. Romano v Steelcase Inc. (New York) 1. Defendant sought information and access to

plaintiff’s social networking pages and accounts, relevant to nature and extent of injuries being claimed in suit

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2. The court determined there was a reasonable likelihood the private portions of the plaintiff’s pages might then contain further evidence relating to her activities and enjoyment of life, all of which were material and relevant to the defense.

3. No reasonable and legitimate expectation of privacy when posting things on a sharing forum

Cases outlined above are attached in full text for reference.