Jan.-Feb. 2012 Quick Links, Part 4 (Evidence Edition)

By Eric Goldman

* E.E.O.C. v. Management Hospitality of Racine, Inc., 2012 WL 37112 (7th Cir. Jan. 9, 2012): “The Defendants also suggest that Shisler was not subjectively offended by Gutierrez’s crude comments because her MySpace page contained a sexually graphic video of young males masturbating in the presence of young females, and contains the comment, “funny as hell.” The jury was entitled to disregard this video as evidence that Shisler did not find Gutierrez’s comments to be offensive. As the district court observed, “sharing jokes with friends in an online community is vastly different than being propositioned for sex by a supervisor at work.””

* In re Google Inc., 2012 WL 371913 (Fed. Cir. Feb. 6, 2012): “Google notes that the email contained the words “Google Confidential” and “Attorney Work Product.” Lindholm’s expectations regarding confidentiality, however, do not demonstrate entitlement to the privilege in light of the remainder of the email.

* Turner v. State, 312 Ga. App. 315 (Ga. App. Ct. Nov. 1, 2011). Rape shield law precludes the introduction of evidence from MySpace.

* Farkarlun v. Hanning, 2012 WL 684027 (D. Minn. March 2, 2012):

With respect to the pages of internet blogs and Star Tribune articles, they are irrelevant because no foundation has been offered from which to infer that Lanasa or Lee ever saw the posting or articles. No evidence has been offered that Lanasa or Lee read the blogs from which pages were reproduced. No evidence has been offered that Lanasa or Lee read the Star Tribune. Therefore, the evidence offered by Farkarlun is not probative in any way of Lanasa and Lee’s knowledge of rape allegations, and is inadmissible….Furthermore, nothing has been offered from which to infer that the portions of Star Tribune articles reproduced on the blog were in fact accurately reproduced. Evidence must be authenticated or identified, i.e. the proponent of the evidence be able to establish the evidence is what its proponent claims it is….An anonymous internet blogger cannot verify the authenticity of the articles through an unsworn, out-of-court statement. Such a statement is hearsay if offered to authenticate the source of the article….

Farkarlun also seeks to admit a posting from an internet blog including the substance of an email from MPD Sergeant Jesse Garcia (“Garcia”). That email is also inadmissible. As with the other blog postings, it lacks any relevancy because no evidence suggests Lanasa or Lee ever saw the email. That the email is addressed to “All” does not mean that the email was sent to every single person Garcia may know. Nearly any email that is sent to multiple recipients may be addressed to “All.” Only knowledge of the recipients will elucidate what group or class constitutes “All.” Here, the recipients of the email are not disclosed and no evidence links the “All” to either Lanasa or Lee. Furthermore, the email lacks foundation. Nothing suggests it was accurately reproduced or that it was in fact written by Garcia. To the extent Farkarlun relies on the representations of an anonymous blogger as the sole foundation to establish the email was written by Garcia, the statement is hearsay and inadmissible. Fundamental to our judicial system is that liability or guilt will be determined only through the use of relevant and reliable evidence. The blog postings offered by Farkarlun are not reliable or relevant to establish whether Lanasa or Lee knew of Farkarlun’s rape allegations.

* EFF: “A Tale of Two Encryption Cases,” explaining the seeming inconsistency between US v. Fricosu (a person can be compelled to decrypt material for prosecutors) and USA v. Doe (a person who had encrypted his drive using Truecrypt could not be compelled to decrypt the hard disk).

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