Evidence Outside the Box

A trial is conducted in a box. 

Literally and figuratively. 

The literal box is the windowless room in a government building in which the trial is conducted. 

The figurative box is drawn by the judge, who admonishes jurors that they are only to consider the evidence admitted inside the courtroom and shall not conduct research or consider information beyond the evidence admitted in the trial.

Yeah, right.

Okay, when these rules were framed, to research a party in the case, a juror would need to travel to a good library, search through index cards, talk to a research librarian and wander the shelves to pull information not received in the trial.  This would involve driving, parking, a fair amount of time and relatively low likelihood of discovering information about either party.  I suspect the box boundaries were well intact.

Now, however, if a juror is not checking out the parties to the lawsuit on their phone while in the courtroom, they are likely looking them up on a computer outside the courtroom before they render their verdict.

Did you?  Does your client, or the other side, communicate on social media or electronic messaging apps?  Are articles about your client the Internet?  Would a search reveal the other civil or criminal actions in which they have been involved?  I hope you did because it is likely your jury has.

I have someone conduct Internet searches on each of the parties at the outset of any case.  If there is useful information about the other side, I get an outside investigator to preserve the evidence.  If there is adverse information, or embarrassing or negative posts, about my client, I look to see whether this can be lawfully removed.  If not, I consider the risk the other side, or a jury, could find the same information.

If one finds adverse information about the other side, such as a social media post with useful admissions, evidence one would like to admit “inside the box,” what to do?  What if you or the client makes a “screen capture” of the evidence?  If the attorney makes the screen capture, then s/he potentially becomes a witness to authenticate the documents.  If the client or an investigator converts a post rich with metadata into a static image that strips this information, this removes the attorney-as-witness problem but still creates a potential authentication issue.  Courts are resisting admission of static screen captures where the information was not exported in a format that preserves metadata, and where the witness cannot authenticate that the other party created the post.  In United States v. Vayner, 769 F.3d 125 (2nd Cir. 2014), the trial court erred in admitting a printed copy of a web page where the government could not authenticate that the defendant had created the post.  See also Moroccanoil, Inc. v. Marc Anthony Cosmetics, Inc., 57 F.Supp.3d 1203, 1213 n.5 (C.D. Cal. 2014) (screenshots of Facebook posts not properly authenticated).  In Edwards v. Junior State of America Foundation, No. 4:19-CV-140-SDJ (E.D. Tex. 2021), where the authenticity of Facebook messages was at issue, the plaintiff failed to honor the request to preserve and produce the messages in HTML or JSON format, which would preserve the metadata, and the court issued evidentiary sanctions. 

The ability to file and retrieve case documents online has saved time, expense and reams of paper.  Yet have you considered the possibility that a jury could find documents in the case file on the Internet?  Granted, to retrieve a document from PACER or a state court website requires payment, however, the titles of documents can be read for free.  I would reconsider calling a pretrial motion, say, “Motion in Limine to Exclude [Really Damaging Stuff I Hope the Jury Will Not Hear].”  “Motion in Limine No. 1” is likely the better caption.

Before trying any case, know what may be found “outside the box.”  If you want to bring online evidence into the box, preserve it correctly.  Failure to take these steps will limit your effectiveness inside the box.