Blogging for evidence
By Chris W. McCarty

Jury members take their seats. Just before a short recess, your opponent finished her direct examination of the defendant. This case involves an auto-accident, a classic he said, she said situation. The defendant ran a red-light, yet denied it on direct.

Standing up to cross, you look down for one last read. In one hand, you hold a printout of a statement the defendant made a few days after the wreck: “It was my fault. I ran a red-light.”

The catch? You pulled that quote from the defendant’s MySpace blog.

Blog nation
In the case of In re Ramon Stevens, the California Court of Appeals defined “blog” as “[a] Web site (or section of a Web site) where users can post a chronological, up-to-date e-journal entry of their thoughts.”[1] When attempting to describe what exactly a blog might offer potential users, the popular blogging service Blogger offers a more expansive definition:

A blog is a personal diary. A daily pulpit. A collaborative space. A political soapbox. A breaking-news outlet. A collection of links. Your own private thoughts. Memos to the world.[2]

Blogs not only tell us what their authors do; they also tell us what their authors think. And those thoughts can be as random as the people responsible for them.

Although we are not always sure what to make of blogs, we do know they are multiplying. According to recent statistics, a new blog comes online every second of every day.[3] Further, blogs both new and old produce an average of 50,000 new posts every hour.[4]

To the world, blogs illustrate a growing movement from the private to the public. Where once teenage girls poured their hearts into leather-bound diaries, they now splash them across MySpace pages in big, pink letters.

To lawyers, on the other hand, blogs represent a source of largely underutilized information.

Public invitation
Obviously, blogs often contain personal information. This is the type of information that, in normal circumstances, would lead lawyers head-on into privacy issues. So far, however, courts have remained clear that the Internet is not a private forum, but a public one.[5]

For example, in United States v. Gines-Perez, a 2002 opinion out of the U.S. District Court for the District of Puerto Rico, Judge Daniel Dominguez remained “convinced that placing information on the information superhighway necessarily makes said matter accessible to the public[.]”[6] After noting the lack of clear precedent to support his opinion, Judge Dominguez still found it “obvious that a claim to privacy is unavailable to someone who places information on an indisputably, public medium, such as the Internet, without taking any measures to protect the information.”[7]

In Guest v. Leis, a 2001 Sixth Circuit opinion, Judge Alan Norris offered similar sentiments regarding privacy and the Internet.[8] During an online obscenity investigation, authorities seized two computer bulletin board systems.[9] In responding to bulletin board members’ allegations that said seizures violated the Fourth Amendment, Judge Norris dismissed their arguments by noting that “[u]sers would logically lack a legitimate expectation of privacy in the materials intended for publication or public posting.”[10]

By applying current case law to your car wreck defendant, it is clear that her MySpace blog is just as much your space as it is hers.

Hard evidence
Perhaps the most public, and controversial, use of blog evidence in civil litigation involves Washingtonienne, a blog written by former United States Senate assistant Jessica Cutler.[11] In Steinbuch v. Cutler, a 2006 case from the United States District Court for the District of Columbia, plaintiff Robert Steinbach sued Cutler for invasion of privacy and intentional infliction of emotional distress after Washingtonienne posted entries “detailing [their] social and sexual activities[.]”[12] After a recent amended complaint added co-defendant Ana Marie Cox, author of the widely popular blog Wonkette, the case remains ongoing and promises to offer great insight not only into the dalliances of Washington elite, but also into modern jurors’ readiness to hear and evaluate blog-based evidence.

Outside of defamation and invasion of privacy suits, we are hard pressed to find civil litigators harnessing the Internet with any degree of success. For example, in Nicholson v. City of Chattanooga, a 2005 civil rights case from the U.S. District Court for the Eastern District of Tennessee, the plaintiff garnered very little weight with “an unidentified and unauthenticated document purporting to be an internet ‘web blog[.]’”[13] Judge R. Allan Edgar noted that the blog “purport[ed] to be … written by one of the emergency medical professionals sent to the scene of the shooting” at issue.[14] However, although the information cited may have appeared useful, Judge Edgar immediately diffused any usefulness by questioning the blog’s origin and author.[15]

As Nicholson seems to illustrate, the key question is not if lawyers should introduce blog-based evidence, but how lawyers should introduce blog-based evidence.

Careful introduction
One word immediately comes to mind when suggesting the introduction of blogs into evidence: hearsay. To understand how we can avoid this pitfall, let us again revisit your car wreck defendant.

Obviously, the first time the defendant’s blog is mentioned on cross, opposing counsel will barely leave her seat before shouting a hearsay objection. Assuming that many judges will be unfamiliar with the word blog, let alone its introduction into evidence, it may be wiser to begin this process during discovery rather than at trial.

It would unwise to inquire about blogs within interrogatories or requests for production. This offers an opposing party the opportunity to delete harmful blog entries. At deposition, however, you can either pull up the blog immediately on a laptop or simply call a member of your staff and have him/her save a copy of the blog’s archives to his/her computer.

Luckily for you, the defendant was questioned about her blog at an earlier deposition. While proceeding through your usual line of questions, you discovered that the defendant keeps a blog. Not yet knowing what you may find on this blog, yet astutely foreseeing a possible hearsay objection at trial, you proceed with the following questions:

• Does this blog have a name or title? Please spell it.
• What is its full web address?
• How long have you kept this blog?
• To view your blog, does a person need a password?
• If so, who has one?
• If not, does that mean anyone may view it?
• To post on your blog, do you need a password?
• Does anyone else have your blog’s password?
• Has anyone else ever posted on your blog?
• If something is written on your blog, you wrote it, is that correct?

The foregoing questions should protect you from any arguments opposing counsel may make regarding origin, author and access, but you are still not completely out of the woods as to hearsay.

In attempting to prove that the defendant ran the red light, you are offering the blog entry as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”[16] By the simplest of definitions, this is hearsay. Thus, to avoid your opponent’s objection, you must rely on a hearsay exception.

Here, the defendant’s blog entry about running the red light should come in as an admission by a party-opponent: “A statement is not hearsay if … [t]he statement is offered against a party and is … the party’s own statement, in either an individual or a representative capacity.”[17] By taking the time to establish origin, author and access during the defendant’s deposition, you can now qualify the blog entry as the defendant’s “own statement” in an “individual” capacity, thus clearly qualifying under the exception.

Despite the foregoing, what should happen if the judge sustains your opponent’s hearsay objection? In terms of the blog’s introduction into evidence, you are now blocked. Yet the important portion pertaining to running the red light can still come in to impeach. “A basic rule of evidence provides that prior inconsistent statements may be used to impeach the credibility of a witness.”[18] Thus, as the defendant’s blog entry remains inconsistent with her previous testimony on direct, it can and should be used to impeach.

Conclusion
The fictional defendant’s red light entry represents the mere tip of the iceberg in terms of ways in which blogs can be utilized during litigation. Imagine knowing that you could have access to the opposing party’s personal diary, yet choosing not to look.

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Notes

1. In re Stevens, 119 Cal. App. 4th 1228, 1236 (Cal. Ct. App. 2004) (citing Netlingo: The Internet Dictionary (June 11, 2004), at http://www.netlingo.com/inframes.cfm).
2. http://www.blogger.com/tour-start.g
3. It’s the links, stupid: Blogging is just another word for having conversations, The Economist (Aug. 20, 2006), at http://www.economist.com/surveys/ displaystory.cfm?story_id=6794172.
4. Id.
5. See Four Navy Seals & Jane Doe v. AP, 413 F. Supp. 2d 1136, 1147 (S. D. Cal. 2005); see also United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004); Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001).
6. United States v. Gines-Perez, 214 F. Supp. 2d 205, 225 (D.P.R. 2002). The decision was later reversed and remanded by the First Circuit, but not based on Judge Dominguez’s Internet privacy analysis. See United States v. Gines-Perez, 90 Fed. Appx. 3 (1st Cir. 2004).
7. Gines-Perez, 214 F. Supp.2d at 225.
8. Guest, 255 F.3d at 333.
9. See Id, at 330-332.
10. Id, at 333.
11. See Steinbuch v. Cutler, 463 F. Supp. 2d 4 (D.D.C. 2006).
12. Id.
13. Nicholson v. City of Chattanooga, No. 1: 04-CV-168, 2005 U.S. Dist. LEXIS 42041, *21 (E.D. Tenn. 2005).
14. Id.
15. See Id.
16. Fed. R. Evid. 801(c).
17. Fed. R. Evid. 801(d)(2)(A).
18. United States v. Hale, 422 U.S. 171, 176 (U.S. 1975).

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As an associate with Lewis, King, Krieg and Waldrop in Knoxville, Chris W. McCarty practices in the areas of employment, education and general civil litigation. A graduate of the University of Tennessee College of Law, McCarty was twice selected to the school’s National Trial Team and, with his partner, won the 2006 Ray Jenkins Trial Competition. He can be reached at cmccarty@lewisking.com