E-Commerce Law

Electronic Evidence Resources

We're contacted fairly frequently by attorneys with electronic evidence questions, so we thought it would be helpful to put together the following list of our resources on the subject:

• Jonathan D. Frieden and Leigh M. Murray, The Admissibility of Electronic Evidence Under the Federal Rules of Evidence, 17 RICH. J. L. & TECH. 5 (Fall 2010), http://law.richmond.edu/jolt/v17i2/article5.pdf.
• E-Commerce Law Series on Internet Evidence
• Other E-Commerce Law Posts on the Admissibility of Electronic Evidence
• Presentation Materials on the Admissibility of Electronic Evidence

We'll attempt to keep this post updated as we develop additional resources on the subject.

Admissibility of Electronic Evidence (PowerPoint Slides)

Last week, I had the pleasure of presenting at the Legal Aid Bureau, Inc.'s Evidence Training in Columbia, Maryland.  You can download a copy of the PowerPoint slides for my presentation on "The Admissibility of Electronic Evidence."

Facebook Photos Properly Authenticated by Subject's Testimony

Facebook pictures of a Mother drinking and socializing were properly admitted into evidence according to the Court of Appeals of Kentucky in an appeal from a divorce and custody order.  LaLonde v. LaLonde, No. 2009-CA-002279-MR, 2011 WL 832465 (Ky. Ct. App. Feb. 25, 2011).  The Court held that the photos posted on the social networking site were properly authenticated by testimony of the Mother and thus, properly admitted into evidence.

E-Commerce Law Briefs: Week of February 14, 2011

A 21-year old driver has been sued for striking and killing a pedestrian while updating her Facebook profile. The daughter of the 70-year old victim filed suit last Monday alelging that the driver operated her vehicle without keeping a proper and sufficient focus, drove while using an electronic communication device, and failed to slow down to avoid an accident. The driver claimed she was blinded by the sun when she struck the victim, who had gotten out of his vehicle after a minor traffic accident, and was ticketed for striking a pedestrian in the roadway.  Facebook shows that the driver posted her status update at 7:54 a.m., the exact time that authorities were called about the victim's initial traffic accident.  (As we've explained before, this sort of electronic evidence is becoming more and more important in adjudicating disputes.) 

Amazon is leaving Texas over taxes.

The federal government is investigating Wikileaks founder Julian Assange and others suspected of disclosing thousands of classified documents on the anti-secrecy website and is attempting to obtain personal information from the Twitter accounts of three people linked to the site.  Last Tuesday, defense attorneys asked U.S. Magistrate Judge Theresa Carroll Buchanan, of the United States District Court for the Eastern District of Virginia, to overturn her December ruling ordering Twitter to disclose its clients' data.  

eBay's forum selection clause is still enforceable.

Facebook is worth $67.5 billion.

Each weekend, E-Commerce Law Briefs provides a brief summary and commentary on recent legal news affecting e-commerce businesses.

The Admissibility of Electronic Evidence Under the Federal Rules of Evidence

Most information is now communicated, generated, or stored electronically so "it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial." See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 537-37 (D. Md. 2007).  Under these circumstances, a trial lawyer must ensure that he or she knows how to properly lay the foundation for admitting electronic evidence.  

In an effort to assist counsel in "getting it right on the first try," at least in federal court, we have written an article entitled, "The Admissibility of Electronic Evidence Under the Federal Rules of Evidence" which was published today by the Richmond Journal of Law and Technology.  If you get a chance to read the article, please let us know what you think about it.

MySpace Video Properly Admitted into Evidence in Murder Trial

On December 23, 2010, the Court of Appeals for Texas ruled on an appeal from a murder conviction in the trial court.  Brumfield v. State of TX, 2010 WL 5187690 (Dec. 23, 2010).  The appellant was convicted and given a 90-year sentence for shooting the complainant to death during a fistfight.  On appeal, the appellant contended that the trial court erred by admitting into evidence a MySpace video in which the appellant was wielding a gun.  The state offered the video into evidence through a witness who testified that the appellant and other men created the video just 11 days before the shooting occurred, which she then posted on her MySpace page.  The appellant objected to the MySpace video as irrelevant and unduly prejudicial and the appellant contended that the trial court erred in overruling his objections.

Technology & Effective Advocacy: MySpace, YouTube & Facebook

Yesterday, I had the pleasure of speaking on "Technology & Effective Advocacy:  MySpace, YouTube & Facebook" at the 11th Annual Maryland Partners for Justice Conference.  We discussed ways that practitioners can use the Internet to prepare for trial (e.g., jury research, preparation for witness testimony in discovery or at trial) and obtain admissible evidence.

If you were at the presentation yesterday, please leave a comment letting me know what you thought.  You can download a PDF file containing my complete PowerPoint presentation here.

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