Evidence – Page 3 – Attorney Evan Brown

September 2, 2008 Evidence, Litigation, Miscellaneous

Slamming Wikipedia’s reliability not enough in immigration case

Badasa v. Mukasey, — F.3d —, 2008 WL 3981817 (8th Cir. Aug. 29, 2008)

Illegal alien Badasa sought asylum in the United States. To establish her identity, she submitted to the Immigration Judge a “laissez-passer” issued by the Ethiopian government. Opposing the application for asylum, the Department of Homeland Security submitted a number of items, including a Wikipedia article, to show that a laissez-passer is merely a document issued for a one-time purpose based on information provided by the applicant. The Immigration Judge was not convinced that the laissez-passer established Badasa’s identity, and denied the application for asylum.

Badasa appealed to the Board of Immigration Appeals, which agreed that asylum should be denied. It soundly criticized Wikipedia’s reliability to establish the meaning of the document at issue, but found there was enough other evidence to support the Immigration Judge’s conclusion that Badasa had failed to establish her identity. But the Board of Immigration Appeals failed to discuss this other evidence, therefore running afoul of the administrative law textbook case of SEC v. Chenery, 318 U.S. 80 (1943).

So the Eighth Circuit sent the case back to the Board of Immigration Appeals to make additional findings. The court observed that the Board of Immigration Appeals found that “Badasa was not prejudiced by the [Immigration Judge’s] reliance on Wikipedia, but [the Board of Immigration Appeals] made no independent determination that Badasa failed to establish her identity.” In short, the Board of Immigration Appeals had focused only on why the use of Wikipedia made the case less “solid,” and did not address the lack of solidity found in any of the other evidence connected with the laissez-passer used to establish identity.

June 25, 2008 Evidence

Company’s own website provided evidence of claimed trademark’s genericness

Boston Duck Tours LP v. Super Duck Tours LLC, —F.3d—, 2008 WL 2444480 (1st Cir. June 18, 2008)

Boston Duck Tours has been providing tours of Boston in amphibian vehicles (called “ducks” but spelled DUKWs) since 1993. After a competitor moved into town in 2007 calling itself Super Duck Tours, Boston Duck Tours filed suit for trademark infringement. The district court enjoined Super Duck from using its mark and logo. Super Duck sought review with the First Circuit Court of Appeals. On appeal, the court reversed.

It held that the lower court erred in finding that the term “duck tour” was not a generic term outside the protection of trademark law. In reaching this decision, the appellate court reviewed evidence of Boston Duck’s own use of the term in a generic sense, including on its website. For example, a sentence read, “[c]ontrary to local belief, the unique idea of a [d]uck [t]our did not originate in Boston.”

The case should serve as a warning to brand owners to ensure (apart from not selecting a generic term in the first place) that they use their marks in a manner that avoids “genericide”.

April 26, 2008 DMCA, Evidence, Uncategorized

Emails held sufficient to amend employment contracts in NY

[Brian Beckham is a contributor to Internet Cases and can be contacted at brian.beckham [at] gmail dot com.]

The New York Court of Appeals, 1st Division recently upheld a lower court ruling that a series of “signed” emails is a sufficient writing to modify a contract.

Plaintiff Stevens sold his business (L-S) to Defendant Publicis under two contracts: a stock-purchase agreement including an initial up-front payment, and an employment contract whereby Plaintiff would continue as Chairman and CEO of the new company (PDNY) for three years with additional contingent fees based on earnings. Shortly after the acquisition, problems arose, including loss of a major client and failure to meet revenue and profit targets. Approximately halfway into the three-year term, Plaintiff was removed as CEO and presented 3 options for continued employment. The then-acting CEO of PDNY (Bloom) exchanged a series of emails with Plaintiff. The culmination of this exchange was an email from Bloom on behalf of PDNY describing his understanding of the parties’ terms regarding Plaintiff’s new role at PDNY that Plaintiff’s time would be allocated 70% towards new business development, 20% in maintaining former L-S clients, and 10% devoted to management/operations of PDNY.

Plaintiff responded the next day by email stating: “…I want to thank you again for helping me…That being said, I accept your proposal with total enthusiasm and excitement…” Bloom for PDNY replied the same day: “I am thrilled with your decision…all of us will continue to work in the spirit of partnership to achieve our mutual goal.”

The bottom of each email had the typed name of the sender.

The lower court held, and the Court of Appeals sustained that the parties had agreed in writing (by their emails) to modify Plaintiff’s duties under his employment contract, specifically because both sides expressed their unqualified acceptance of the modification to the contract. (Bloom’s email set forth the terms of the proposed contractual modification, Plaintiff accepted those terms by his email, and Bloom’s reply memorialized that acceptance). Plaintiff also confirmed his acceptance of the modified contract terms in another email to PDNY’s COO.

The Court of Appeals held that Plaintiff’s (and Bloom’s) emails “constitute ‘signed writings’ within the meaning of the statute of frauds, since plaintiff’s name at the end of his e-mail signified his intent to authenticate the contents.” Moreover, the signed writings (the emails) satisfied a requirement of the original employment contract that any modifications must be signed by all parties, i.e., the several emails served as counter-signatures. The same result may not have been reached in a different state, but at least in NY, “signed” emails can be valid for contract purposes.

Case is: Stevens v. Publicis, S.A., 602716/03.

January 28, 2008 Computer Crime, Evidence

Social networking evidence presents challenge in prosectuion over alleged threats made after Virgina Tech shootings

U.S. v. Voneida, 2008 WL 189667 (M.D. Pa. January 18, 2008)

Professor Goldman kindly emailed me a copy of the U.S. District Court for the Middle District of Pennsylvania’s decision in the case of U.S. v. Voneida. This criminal prosecution arose out of some postings that defendant Voneida is alleged to have made on his MySpace page about last April’s Virginia Tech shootings.

The court approached the case with all the awe for the Internet suitable for 1994:

[Voneida’s statements] did not occur in a moment, like words being spoken; nor were they sent from one place to another once and only once, like mailing a letter, broadcasting a message over television or radio, or even sending an email. Rather, Defendant’s comments were communicated, and had the potential to reach an audience, for at least nine days. This is one of the ways in which speech on the internet, and on social networking sites in particular, challenges existing methods of legal analysis.

In this case, the feds claimed that Voneida’s postings ran afoul of 18 U.S.C. 875(c), which prohibits the transmitting in interstate commerce of “any threat to injure the person of another.” Voneida filed a motion in limine requesting that several pieces of evidence be excluded at trial.

One of the pieces of evidence that Voneida wanted kept out was an email message that a student in Pennsylvania sent to university authorities to report the postings. The court denied Voneida’s request on this point.

The court held that in determining whether Voneida’s statements were “true threats,” it would be instructive for the jury to consider the effect of the statements on their audience. Addressing this point, the court observed the following about an online “audience”:

Even if [the student who reported the postings] was an unintended viewer, the context of the internet and social networking sites like Myspace.com may make her part of Defendant’s audience regardless of his intent to reach her as opposed to others. As a part of his audience, her response to his comments is relevant and properly considered when evaluating whether they are “true threats.”

A few more facts would be interesting. What if a social network participant adjusts his profile settings to allow only “friends” see the content? Would the so-called “audience” still be the world at large? To what extent can a publisher technologically constrain his or her audience?

October 27, 2006 Electronic Discovery, Evidence, Litigation, Privacy

Parties must use neutral forensics examiner in file-sharing case

Case highlights important privacy interests in electronic discovery dispute.

From Ray Beckerman, we learn of the U.S. District Court for the Eastern District of Texas’s decision on a motion to compel discovery filed by the recording industry against an accused file-sharer. While the defendant will have to submit her hard drive for forensic examination to see whether she had any copyrighted sound recordings stored on it, she will not have to turn it over to the recording industry’s forensic expert.

Instead, seeking to “balance the legitimate interests of both sides,” the court ordered the parties to select a neutral computer forensics expert to conduct the inspection. Such an approach, the court found, would protect the disclosure of the defendant’s personal information, such as personal correspondence, household financial matters, school homework, and perhaps attorney-client privileged information.

Although in theory this sounds like a reasonable approach to protect the confidentiality of the defendant’s information, one could be troubled by a particular part of the court’s decision. The order states that “the Plaintiffs shall have the right to suggest hard drive search methodologies to the neutral expert and the expert shall make every effort to utilize those methodologies.”

But there is nothing in the order giving the defendant the right or opportunity to object to those methodologies. With an obligation to “make every effort” to comply with the suggestions of the plaintiffs, just how neutral is that forensic examiner really going to be?

Sony BMG Music Entertainment et al. v. Arellanes, No. 05-CV-328 (E.D. Tex., October 27, 2006).

December 20, 2005 Computer Crime, Evidence, Privacy

Kansas Supreme Court overturns conviction because hard drive was searched without valid warrant

Agents of the Kansas State Gaming Agency visited Zeke Rupnick in his office, and questioned him about allegations that he was illegally in possession of confidential business information. The agents seized his laptop computer, and a magistrate in a different county issued a warrant authorizing the search of the hard drive’s contents. Rupnick was convicted of felony computer crime based on the evidence obtained from the laptop.

Before trial, Rupnick sought to suppress the evidence contained on the computer, claiming violation of his Fourth Amendment rights. The trial court denied the motion to suppress. Rupnick sought review with the Kansas Supreme Court, which overturned the conviction.

The court held that the initial seizure of the laptop computer from Rupnick’s office without a warrant was justified, on the basis of probable cause plus the exigent circumstances presented by the possibility that Rupnick could easily delete the relevant data. The later warrant and search of the laptop, however, provided the basis for the reversal of the conviction.

The court began its analysis of the legality of the search by answering the question, which was one of first impression before the court, of whether a warrant must be obtained before the government may search the contents of a personal computer. In answering the question in the affirmative, the court looked to the Tenth Circuit cases of U.S. v. Carey, 172 F.3d 1268 (10th Cir. 1999) and U.S. v. Walser, 275 F.3d 981 (10th Cir. 2001).

In this case, the agents had indeed obtained a warrant before searching the contents of the laptop’s hard drive. However, the warrant failed to comply with the relevant Kansas statute (K.S.A. 22-2503), which requires that the search warrant be executed in the judicial district in which the magistrate judge resides. Because the magistrate that issued the warrant did not reside in the county in which the warrant was executed (i.e., where the search of the hard drive was made), the warrant was invalid, and the search was unlawful.

Despite the government’s argument that the defect in the warrant was a mere “technical irregularity,” the court strictly enforced the statute. The felony conviction was reversed and remanded for further proceedings.

State v. Rupnick, — P.3d —, 2005 WL 3439897 (Kan., December 16, 2005).

[Text of opinion]

June 20, 2005 Evidence

Pennsylvania court addresses authentication of instant messages

(This was a juvenile delinquency proceeding, thus the names of the parties involved are abbreviated with initials.)

F.P. suspected that Z.G. had stolen a DVD from him. One day in September 2003, as Z.G. was getting off the school bus, F.P. approached Z.G. and “struck him numerous times about the head and face.” F.P. was adjudicated a delinquent, and sought review.

On appeal, F.P. challenged the introduction of printed transcripts of instant messages purportedly sent back and forth between F.P. and Z.G. before the attack. In these messages, the boys discussed the alleged theft of the DVD, and F.P. threatened Z.G. with violence.

F.P. argued that in order for the instant messages to have been admitted into evidence, the prosecution should have introduced information regarding their source with an ISP, or testimony from a computer forensics expert. The “inherent unreliability” of e-mail and instant messaging communications, F.P. argued, made the authentication of the documents through circumstantial evidence improper.

The court rejected F.P.’s arguments, and held that the trial court did not abuse its discretion in admitting the communications. It found that there was sufficient evidence to support the conclusion that F.P. had sent them. In the messages, F.P. had referred to himself by his first name. He accused Z.G. of stealing from him, which mirrored other testimony in the case. Furthermore, he referenced the fact that Z.G. had involved school authorities regarding the dispute between the two, which is a fact that few others would have known.

The court concluded that the applicable Pennsylvania rule of evidence (901) provided a sufficient framework for the analysis. The court held that there “was no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.”

In the Interest of F.P., — A.2d —, 2005 WL 1399264 (Pa.Super., June 15, 2005).

June 15, 2005 Evidence

Even the courts know the Internet is the first place to turn for information

One of the issues in the recent Indiana case of Munster v. Groce was whether the plaintiff had exercised due diligence in locating the missing defendant. In concluding that the plaintiff hadn’t done his part, the court noted that the plaintiff had neither conducted a public records search nor hired a skip-trace service.

Moreover (and perhaps more shockingly), the plaintiff hadn’t even done a Google search. The court seemed to chastise this failure: “[W]e discovered, upon entering “Joe Groce Indiana” into the Google search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts.”

Munster v. Groce, — N.E.2d —-, 2005 WL 1364662, at n. 3 (Ind.App., June 8, 2005).

June 14, 2005 Computer Crime, Evidence

What does it mean to “possess” an image file?

In a case of first impression under Virginia law, the Virginia Court of Appeals has applied “familiar principles of constructive possession of contraband” to define “possession” in the context of computer files.

In the case of Kromer v. Commonwealth, the appellant challenged the sufficiency of the evidence put forward to convict him of unlawful possession of child pornography. Specifically, the appellant argued that the Commonwealth failed to prove that he knowingly possessed the illegal images contained on the hard drive of his computer. The Court of Appeals rejected the appellant’s arguments and affirmed the conviction.

The appellant had contended that the images were “hidden” on his computer, and that someone else could have downloaded them from the Internet. However, the court tipped its hat to the federal case of U.S. v. Tucker, 305 F.3d 1193 (10th Cir. 2002) to conclude that whether the appellant or someone else sought after the images was not relevant to the analysis. Instead, the relevant inquiry was whether the appellant knowingly possessed the images after they were downloaded.

In holding that there was sufficient evidence to show that the appellant had knowingly possessed the images, the court applied a “constructive possession of contraband” analysis. Under the “totality of the circumstances,” the trial court was correct in determining that the appellant knowingly possessed the illegal images.

To support a conviction based on constructive possession under Virginia law, the Commonwealth had to show (1) that the appellant was aware of the presence and character of the illegal images and (2) that the illegal images were subject to his dominion and control.

The appellant had stored the images in a KaZaA directory which was linked to a desktop shortcut. This provided sufficient evidence to show he was aware of the presence of the files. Furthermore, the descriptive file names would have put him on notice of the character of the images. Regarding the question of whether the appellant had control of the images, the court observed that the appellant had disallowed sharing of the contents of the KaZaA folder in which the images had been stored. Moreover, the copy of Windows XP on the computer was registered in the appellant’s name, and he had provided consent for the F.B.I. to search his residence and computer.

Kromer v. Commonwealth, — S.E.2d —, 2005 WL 1388056 (Va.App., June 14, 2005).

June 3, 2005 Evidence

Escort’s website relevant evidence for truthfulness

Defendant was hired as an independent “escort” and accompanied her client to the Embassy Suites Hotel in Livonia, Michigan. During the encounter, a scuffle ensued, and the defendant shot her client. She was charged with and convicted of assault with intent to commit murder. At trial, the defendant argued self-defense, claiming that her client had attacked her first.

Throughout the trial, the defendant had maintained that she did not engage in prostitution, and that there was nothing illegal about the services she provided. Although the question of whether the defendant was a prostitute was not related to any of the elements of the crime or to her defense, the prosecution wanted to challenge her truthfulness. To do that, the prosecution introduced into evidence the defendant’s website, which she apparently used to attract new clients.

The defendant argued that this evidence was improperly admitted because it was not relevant. The court disagreed, however, and held that it was relevant to her truthfulness, and that the jury could properly consider it to determine whether or not she was likely telling the truth in her testimony. The court further held that the website’s probative value outweighed its prejudicial effect.

People v. Earle, 2005 WL 1224611 (Mich.App., May 24, 2005).