Archive for the ‘blogs as evidence or authority’ Category

Taking Judicial Notice of Blogs

Friday, November 9th, 2012

Daylight exterior

This is the Stanley Mosk Courthouse in Los Angeles. Under the Ragland case, my picture of it here does not permit it to take judicial notice of itself. (Photo: EEJ)

A new California case concerns whether a court can take judicial notice of a blog.

When a court takes “judicial notice” of something, it gives a party a pass on proving something with testimony. So, for instance, you can get a court to take judicial notice of the fact that November 6, 2012 was a Tuesday. You won’t have to produce a witness to testify as to that.

So, how about taking judicial notice of blogs?

This won’t come as a shocker. A court can take judicial notice of the existence of a blog, but not the truth of factual assertions made on the blog. (Can you imagine if it were otherwise!?)

Here’s what the court said in Ragland v. U.S. Bank National Association, 209 Cal.App.4th 182 (Cal. App. 2012):

As evidentiary support for the request for judicial notice, Ragland offers 12 exhibits, [including] printed pages from various Web sites and blogs (exhibits 2–6 and 8–12)[.] Ragland’s request for judicial notice requires us … to take judicial notice of, and accept as true, the contents of those exhibits. While we may take judicial notice of the existence of … Web sites, and blogs, we may not accept their contents as true.

Id. at 193.

Presumably, the court can also take judicial notice not only of the existence of the blog, but also the fact that certain statements exist on the blog. That makes sense, since the judge and all parties can independently access a blog just by using the internet.

But blogs can and do change. There’s clearly a separate question as to what is required as proof that a blog said a certain thing on a certain date. That presumably requires testimony in the form of an affidavit or declaration – though that’s not hard to do.

Ugly Blogging from Coyote Ugly CEO Not Actionable

Wednesday, September 26th, 2012

Coyote Ugly Nashville logoSometimes, it takes a federal judge to explain something that ought to be common sense.

Misty Blu Stewart learned this the hard way, in her ongoing class action lawsuit under the Fair Labor Standards Act against her former employer, Coyote Ugly Saloon.

Stewart claimed that an expletive-laced blog post by Coyote Ugly CEO Liliana Lovell was retaliation against Stewart.

The only problem? Stewart no longer worked for Coyote Ugly at the time of the post.

According to the court: “Under the FLSA, an ‘employee’ is defined as . . . any individual employed by an employer.’” As such, her retaliation claim had to be denied.

Here’s a quick chronology, as set forth in the relevant court opinion, Stewart v. CUS Nashville, LLC, No. 311-cv-0342, 2012 WL 4049968 (M.D. Tenn. Sept. 13, 2012):

  • Sometime before April 7, 2011, Stewart and Coyote Ugly Saloon in Nashville part ways (the post in question, and the court opinion itself, refer to Stewart as having been “terminated”).
  • On April 7, 2011, Stewart files suit, alleging FLSA claims “arising out of Coyote Ugly’s alleged operation of an illegal tip pool and its failure to compensate its employees for work performed off-the-clock and during overtime hours.”
  • On or about May 11, 2011, Lovell creates the offending post on the Coyote Ugly website, saying in reference to Stewart and her lawsuit, “my thoughts are f* *k that b* *ch.”
  • On Feb. 13, the court certifies a class action, with two classes whose parameters track the claims Stewart made in her initial complaint
  • On July 31, Stewart files a motion to amend her complaint to, among other things, add a retaliation claim, based on Lovell’s post.

So, in simple terms, Stewart was essentially telling the court: “Judge! The Defendants just called me a name!”

The hoped-for response from the judge would have been something along the lines of “Defendants, stop calling Plaintiff that name! Just for that, you’re getting a timeout . . . to the tune of several thousand dollars!”

Instead, the only thing the judge could do, having been told of Defendants’ name-calling, is simply to say, “OK. So what? Sticks and stones, Plaintiff, sticks and stones.”

So, just to wrap things up:

  • Stewart is still not a Coyote Ugly employee.
  • Coyote Ugly is still facing the class action suit Stewart brought.
  • Employer retaliation still cannot be effected against people who are not employees.

EEJ’s thoughts:

Even if blogging “f* *k that b* *ch” doesn’t create retaliation liability, it’s still bad news for the defendants. You can bet Stewart’s attorney is working on a plan to make the blog entry admissible evidence for one of the remaining claims. Even if this kind of wash-your-mouth-out blogging doesn’t get you a time-out from the judge, it sure won’t win you friends in the jury box.

Jury Instructions Regarding Blogs, Twitter, and Facebook

Wednesday, January 11th, 2012

New trends in how juries are being instructed about social media have been a recurrent topic on this blog. I thought it might be interesting to let you see that those Jury instructions actually look like in the flesh.

These particular jury instructions come from a Missouri automobile-collision negligence case, Molina v. Harlan. The full instructions comprise 1641 words. (I’ve put the whole set of instructions in the Blog Law Blog library.) The portion concerning juror research or communication about the case is 335 words (so, it’s a little more than a fifth of the whole thing).

One thing that strikes me as kind of funny, right off the bat, is that even as the instructions are an attempt to stay in step with the times, they show an old-school haplessness with punctuation and capitalization. Not only do they capitalize “Internet,” but they lowercase and place in quotes “‘facebook’,” “‘myspace’,” and “‘twitter’.”

What’s up with that? Does the court think that “facebook” is some kind of slang that the young kids are using? It’s very odd.

And, of course, another sign of out-of-touchness is any reference at all to Myspace.

(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE

Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure, or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case, or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.
If any of you break these rules, it may result in a miscarriage of justice and a new trial may be required.

Social Media Gotchas in Court – Plus: Professor Goldman’s Innovation Giveaway

Friday, January 6th, 2012

refrigeratorProfessor Eric Goldman has been keeping a list of cases in which a person’s social media has been used as evidence against them, or, as he puts it, when litigants say “one thing in court and another when talking to their friends online.”

In the latest case, a workers comp claimant, who says he is in excruciating pain after a refrigerator fell on him, put pictures on Facebook and MySpace that show him drinking and partying. To try to get the photos excluded from evidence, the claimant attempted to seize the moral high ground, arguing that the use of the pictures in litigation was “a disgrace to the dignity of the workers’ compensation proceedings and the legal system.”

Nice try.

The court allowed the evidence.

Confronted with this case, Goldman offers the following:

Now that Facebook can do facial recognition, it should next develop a tool to automatically detect photos depicting alcoholic drinks and give users a way to automatically opt-out of those photos!

Goldman’s quite a guy, huh? Instead of trying to grab some quick cash by applying for a software/business-method patent on this, he’s offered it up as a public service. Someone note this down so that Goldman’s post can be used as prior art to block patent-hungry Facebook if and when they apply for a patent on “Method of Shielding Workers Comp Claimants from Impeaching Photos of Boozing”.

Here’s the full list of social-media-evidence-gotcha cases Professor Goldman has collected:

The ALL CAPS Defense to Defamation

Monday, October 3rd, 2011

Sucks VERY Corrupt Liar EXPOSEFollowing up on Obsidian Finance Group v. Cox, should we go ahead and Confront the ELEPHANT IN THE ROOM?

The case introduces an underappreciated strategy for sidestepping defamation liability. Call it the ALL CAPS libel defense.

If you look closely at the decision, the key behind Cox’s victory seemed to be her wild use of ALL CAPS, Title Caps, and bold typeface, combined with a strong helping of over-the-top invective and continual references to forthcoming proof.

Take a look at this analysis from U.S. District Judge Marco A. Hernandez [pdf]:

Finally, the statements are not sufficiently factual to be susceptible of being proved true or false. Cox repeatedly poses her statements as questions or asserts that she will prove her accusations. For example, she asserts that “a Whole Lot” of the “Truth” is “Coming Soon,” that she “intend[s] to Expose every Dirty Deed,” that Padrick “WILL BE EXPOSED,” that “YOU [meaning Padrick] will BE Indicted SOME TIME, someday,” and that she “WILL PROVE IT ALL.” Padrick Decl. at pp. 1-13. She tells the reader to “STAY TUNED,” and she asks “Kevin Padrick, Guilty of Tax Fraud?” Id. She also states that Padrick is a “cold hearted evil asshole” and is a “Cruel, Evil Discriminating Liar.” Ex. 1 to Padrick Decl.

Defendant’s use of question marks and her references to proof that will allegedly occur in the future negate any tendency for her statements to be understood as provable assertions of fact. Her statements contain so little actual content that they do not assert, or imply, verifiable assertions of fact. They are, instead, statements of exaggerated subjective belief such that they cannot be proven true or false.

Considering all of the statements in the record under the totality of circumstances, the statements at issue are not actionable assertions of fact, but are constitutionally protected expressions of opinion. Plaintiffs’ motion for summary judgment on the liability of the defamation claim is denied.

One way of thinking about this is that Cox’s unconventional style underminded her own credibility to an extent that the court was loathe to treat her allegations seriously enough to make them the basis of a libel case. I’m sorry if that’s harsh. (I know Ms. Cox will probably read this.) But that’s how I interpret the judge’s ruling.

So, I guess the lesson is that if you are going to defame someone, (1) put your foot on the gas, (2) put your pinky on the shift key, and (3) DON’T HOLD BACK!

Hyperbolic “____sucks.com” Blog Cleared of Defamation Liability

Wednesday, September 28th, 2011

The Mark O Hatfield U.S. Courthouse in Portland, Ore. (Photo: EEJ)

An interesting case out of Oregon has held that because of the “looser, more relaxed communication style” of blogs, it was not defamatory for blogger Crystal Cox of obsidianfinancesucks.com to accuse bankruptcy trustee Kevin Padrick of various forms of perfidy.

Cox’s blogged allegations against Padrick includeed money laundering, perpetrating “fraud on the courts,” and engaging in various “illegal activity.”

Most stunning to me, however, was that in one post, Cox strongly implied that Padrick had engaged in “Solar Tax Credit Crimes.” If that doesn’t sound reputation-harming to you, consider the geographical context: This took place in Portland, Oregon, my friends.

True story: P-Town is so environmentally conscious, that even at McDonald’s, after you bus your own table, you have to separate out your recyclables.

So I can only imagine that for Porlanders, Solar Tax Credit Crimes are right up there with murder, arson, and aggravated failure to compost.

But Cox didn’t merely imply things. Cox blogged that Padrick was a “Thief,” a “CRIMINAL,” and a “Corrupt Attorney.”

If you were taking a law school exam, you would quickly identify those statements as being factual assertions, which, if provably false and reptuation harming, could give rise to a claim for defamation.

But the federal court in Oregon took a more realist approach. It concluded that, under the totality of the circumstances, a reasonable reader could not have regarded the statements as provably false assertions.

Why not?

The court said that “the extensive use of hyperbolic and figurative language, and the posting of several questions rather than statements,” tended to show that Cox’s statements were not reasonably to be regarded as provable factual assertions.

What’s more, it mattered that the medium at issue was a blog. The court’s August 23 order, according to the RCFP report, explained: “Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact[.]”

Yikes. If this is a victory for blog freedom, it sure comes with a sting.

More:

UN Report: Internet as Human Rights Issue

Monday, June 27th, 2011

Blue flag of the United NationsThe United Nations Human Rights Council has published a report [pdf] by Special Rapporteur Frank La Rue on the promotion and protection of the right to freedom of opinion and expression. The document is heavy on analysis of online expression, looking at the internet as a human rights issue.

I’ll post various key excerpts on more specific topics in coming days. But first, here are some key excerpts of the report regarding the importance of the internet for free expression. There is a lot of good sense in here. Most importantly, the internet strongly identified as implicating human rights issues. Additionally, we get the counsel that because the internet is special, it deserves freedoms from regulation that traditional forms of media may not enjoy.

These excerpts are from paragraphs 2, 19-23,

The Special Rapporteur believes that the Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies. Indeed, the recent wave of demonstrations in countries across the Middle East and North African region has shown the key role that the Internet can play in mobilizing the population to call for justice, equality, accountability and better respect for human rights. As such, facilitating access to the Internet for all individuals, with as little restriction to online content as possible, should be a priority for all States. …

Very few if any developments in information technologies have had such a revolutionary effect as the creation of the Internet. Unlike any other medium of communication, such as radio, television and printed publications based on one-way transmission of information, the Internet represents a significant leap forward as an interactive medium. Indeed, with the advent of Web 2.0 services, or intermediary platforms that facilitate participatory information sharing and collaboration in the creation of content, individuals are no longer passive recipients, but also active publishers of information. Such platforms are particularly valuable in countries where there is no independent media, as they enable individuals to share critical views and to find objective information.

Indeed, the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression, as guaranteed by article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. …

… the framework of international human rights law remains relevant today and equally applicable to new communication technologies such as the Internet.

The right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an “enabler” of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly. Thus, by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights.

The vast potential and benefits of the Internet are rooted in its unique characteristics, such as its speed, worldwide reach and relative anonymity. At the same time, these distinctive features of the Internet that enable individuals to disseminate information in “real time” and to mobilize people has also created fear amongst Governments and the powerful. This has led to increased restrictions on the Internet through the use of increasingly sophisticated technologies to block content, monitor and identify activists and critics, criminalization of legitimate expression, and adoption of restrictive legislation to justify such measures. In this regard, the Special Rapporteur also emphasizes that the existing international human rights standards, in particular article 19, paragraph 3, of the International Covenant on Civil and Political Rights, remain pertinent in determining the types of restrictions that are in breach of States’ obligations to guarantee the right to freedom of expression.

However, in many instances, States restrict, control, manipulate and censor content disseminated via the Internet without any legal basis, or on the basis of broad and ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is clearly unnecessary and/or disproportionate to achieving the intended aim, as explored in the following sections. Such actions are clearly incompatible with States’ obligations under international human rights law, and often create a broader “chilling effect” on the right to freedom of opinion and expression.

In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate.

Similarly, while the protection of children from inappropriate content may constitute a legitimate aim, the availability of software filters that parents and school authorities can use to control access to certain content renders action by the Government such as blocking less necessary, and difficult to justify.12 Furthermore, unlike the broadcasting sector, for which registration or licensing has been necessary to allow States to distribute limited frequencies, such requirements cannot be justified in the case of the Internet, as it can accommodate an unlimited number of points of entry and an essentially unlimited number of users.

Lisa Di Valentino: An Annotated Bibliography of Open Access and Legal Publishing

Monday, March 28th, 2011

Lisa Di Valentino has posted to SSRN Open Access and Legal Publishing: An Annotated Bibliography. This seems to me like an enormously useful document.

Di Valentino is a research assistant and J.D. candidate at University of Western Ontario where she works with the Faculty of Information and Media Studies.

The issue is near and dear to my heart. One key question implicates blogs: whether publishing in print law journals does more or less to contribute to scholarly discourse than blogging. Di Valentino finds that “there is a theoretical approval of open access publishing for legal scholarship, but a certain amount of resistance in practice.” I’d have to agree with that.

Here’s the abstract:

Several commentators argue that the law review is well-suited to open access publishing, although it has not been embraced quite as enthusiastically as it might be. Others assert that self-publishing will signal end of the law review as we know it. Some authors express concern that the rise in blogging will have little positive effect, or indeed a detrimental effect, on the general quality of legal scholarship. These views are countered by those who believe that blogging and collaborative editing provide opportunities and benefits to students and scholars and that the new methods of communicating will give rise to new methods of evaluating works.

Other issues are brought up such as the demographics of the audience for legal writing, the responsibilities of the legal scholar, the use of open access in legal education, the benefits of university repositories, and advice for young professors who are considering publishing in open access journals.

A few of the articles were written before the open access campaign gained momentum around 2006-2007. These articles are included to demonstrate the history of and impetus behind the open access movement.

The conclusion one might draw from the following articles is that there is a theoretical approval of open access publishing for legal scholarship, but a certain amount of resistance in practice. However, open access publishing is gaining in popularity, and it is possible that the next generation of legal scholars, accustomed to finding information online, will embrace open access as the standard manner of publishing.

Federal Criminal Defendant Cites Blog’s Reposted Newspaper Story in Appellate Brief

Monday, July 19th, 2010

While Righthaven is suing people left and right for reposting newspaper articles, a federal criminal defendant from North Carolina has cited to a blog’s reposted version of a newspaper article in an appellate brief to the Fourth Circuit.

The case is United States v. John Douglas Bird, Jr., No. 09-4806. The blog is AntiPolygraph.org News, and the paper is the Asheville Citizen-Times.

Here is the portion of the brief’s table of authorities that cites the blog’s repost:

Other Authorities:

* * *

Jon Ostendorff, DA: No Assault Evidence Found Against SBI Agent, Asheville Citizen-Times, Dec. 2, 2009, (accessed on January 25, 2010, at http:// antipolygraph.org/blog/?p=373) … 11

Note: That link won’t work, but this will: https://antipolygraph.org/blog/?p=373.

Indeed, as you might expect from the fact that the brief cited the blog, the Asheville Citizen-Times story is no longer available for free on the newspaper’s website. There is a $3.95 charge to access it from the archives.

Bird is represented by the Federal Defenders office in Charlotte, North Carolina.

Blog Post Accusing Town Officials of Sexism Helps Discrimination Claim Survive

Friday, July 16th, 2010

An opinion from a federal court in New York has cited blogged accusations of sexism as part of a set of allegations sufficent to uphold a constitutional equal-protection gender discrimination claim brought by a real estate developer against government officials. The complaint stems from rejected requests for zoning changes.

The case is Catcove Corp. v. Heaney, No. 08-CV-4156 (JS)(ETB), E.D.N.Y., Seybert, J., presiding. The opinion is at 685 F.Supp.2d 328. Here is the excerpt about the blog post:

Plaintiffs also allege an Equal Protection violation based upon sex discrimination. Specifically, Plaintiffs allege that: (1) Mr. Heaney “possessed [ ] a clear bias against women,” and that “women were discriminated against” within Southampton; (2) in a local blog report, “several women” described “Heaney and his administration’s ‘Neanderthal’ Town Legal Staff-to be disrespectful, misogynistic and crude”; (3) Mr. Heaney “discriminate[d] against Ms. Gotthelf because she is female” and wanted “to force her to sell her properties” to his “male friends,”; (4) Mr. Murphee said that he liked Plaintiffs’ proposed project, but “wanted a real developer to develop it”; and (5) Messrs. Heaney and Murphree coerced Plaintiffs to sell a different property to one of “defendants’ ‘good old boys.’ ” (Amend. Compl. ¶¶ 32, 35, 41, 46, 51). Given these allegations, the Court will permit Plaintiffs’ sex discrimination claims against Mr. Heaney and Mr. Murphree to survive-for now. With respect to Mr. Heaney, Plaintiffs have pled enough factual allegations to suggest that Mr. Heaney possessed an animus towards women and favored male developers over Ms. Gotthelf. These allegations (and reasonable inferences drawn therefrom) suffice to set forth a “plausible” claim against Mr. Heaney, albeit barely.

Also interesting in the opinion: other parts of the lawsuit – ones not concerning blogs apparently – led the judge to impose Rule 11 sanctions on the plaintiff. Claims against certain defendants were, according to the court, “utterly lacking in support.”

It’s not every day you see Rule 11 used.

The court was merciful however, saying that “only mild sanctions” were warranted, leveling a $1,000 fine.