There is an interesting Rule 502 issue in the Paul Ceglia v. Mark Zuckerberg and Facebook case. Ceglia is suing Zuckerberg and Facebook claiming that he had a contract with Mark Zuckerberg in which he agreed to “develop and commercialize” The Face Book (as it was known at the time) in exchange for a one-half interest in the future earnings. The defense maintains his purported contract as well as his emails submitted as proof are fraudulent. For an interesting “Digital Forensic Analysis” submitted by Defense experts, see http://www.wired.com/images_blogs/threatlevel/2012/03/celiginvestigation.pdf.
The case is before the United States District Court for the Western District of New York, Docket # 10-cv-00569 RJA. There have been a number of pretrial motions. The Order involving FRE 502 (inadvertent disclosure) was filed on April 19, 2012 by U.S. Magistrate Foschio. See: Order on Defense’s Fifth Motion to Compel, http://www.ediscoverylaw.com/uploads/file/Westlaw_Document_Ceglia.pdf.
Interestingly, a couple of days ago (May 30, 2012), Milberg, LLP, one of Ceglia’s counsel asked to withdraw from the case – apparently making it the third set of lawyers to withdraw. See: http://www.latimes.com/business/technology/la-fi-tn-facebook-claimant-paul-ceglia-may-lose-another-set-of-lawyers-20120530,0,5150006.story.
Paul Argentieri, one of Plaintiff Ceglia’s attorneys, retained Jason Holmberg, a consultant, for “executive, secretarial duties” to type, proofread and convert to pdf. format a “Lawsuit Overview” document. Apparently Mr. Argentieri did not know how to type. Holmberg did so, and sent the Overview to both Argentieri and Ceglia via email on March 6, 2011, as an attachment to his own email. In pretrial discovery, Defense experts Stroz Friedberg, LLC, a digital forensic consulting firm, were provided the Overview by Plaintiff expert Edward Flaitz. Flaitz was hired by Argentieri to search Argentieri’s law firm files for the Overview. Unfortunately for the Plaintiff, Flaitz forwarded not just the Overview, but the email as well. These were given to the Defense experts on December 16, 2011. On March 12, 2012, Argentieri realized the email had been provided to the Defense and he requested the defense retrieve the email from the experts and destroy it. Argentieri claimed it was protected by both the attorney-client privilege and the work product protection doctrine. The Defense countered that the privilege and protection were waived by disclosure.
The Plaintiff argued that it was an inadvertent disclosure and FRE 502(b) provided relief. The Judge found otherwise, for two reasons. First, the Judge determined that Argentieri had not taken “reasonable steps to prevent inadvertent disclosure.” He should have had his computer retrieval expert Flaitz forward all findings to him, so that he could review it before it was provided to the Defense, or he should have traveled from New York to California to supervise the search. Second, the Judge found that Argentieri had not taken “reasonable steps to rectify the disclosure.” Too much time had passed between the disclosure and the request for retrieval and destruction (from December to March). The Court mentioned that generally, courts have found that steps taken within days would sustain the second element of Rule 502(b).
Things got interesting at the Roger Clemens trial on Wednesday, May 9, 2012. U.S. v. William R. Clemens, Crim. No. 10-223 (United States District Court, District of Columbia).
First, the government filed an Opposition to Defendant’s Motion to Strike Portions of the Trial Testimony of Andy Pettitte – see: http://dig.abclocal.go.com/ktrk/ClemensGovtResponse.pdf. The Motion to Strike was filed by the Defense on Monday, May 7, see: http://lawprofessors.typepad.com/files/defendants-motion-to-strike-portions-of-the-trial-testimony-of-government-witness-andy-pettitte.pdf. The Defense cites to FRE 104 in support of its motion. The government refers to both Rule 104 and 801(d)(2)(A). I personally would predict the Defense will lose this motion. It seems it is up to the jury to weigh the credibility of Pettitte, rather than have the Judge strike the testimony.
I enjoyed reading the reports of the testimony of the steroid supplier Kirk Radomski, who testified on Wednesday. He was convicted of Money Laundering and the Distribution of Controlled Substances in 2007. He seems like quite a character – see: http://www.nytimes.com/2012/05/10/sports/baseball/roger-clemens-trial-focuses-on-mail.html?_r=1&adxnnl=1&adxnnlx=1336634706-a3ACV9KQi1O/X7l2TuMopw; and http://news.yahoo.com/colorful-ex-drug-dealer-livens-clemens-trial-054154462--spt.html. At issue is a mail label. Radomski said he found it under his television set – after the government missed it in a search of his home some years earlier. The label is torn – but Radomski said he sent it to Brian McNamee c/o Roger Clemens – at Clemens’ address. The envelope, according to Radomski, contained syringes and vials of HGH. Radomski was a former New York Mets ball boy and was quite a colorful character at trial. This is a good thing, as the Judge actually dismissed a juror on Wednesday because he continually fell asleep during the testimony at trial.
There should be some fireworks when Brian McNamee testifies – he is predicted to begin testifying on Thursday, May 10. The Defense wants to bring in “Prior Bad Acts.” McNamee is the person who allegedly injected the HGH into Clemens. Some of the Prior Bad Acts were found from McNamee’s divorce proceeding – see: http://mlb.mlb.com/news/article.jsp?ymd=20120507&content_id=30652196&vkey=news_mlb&c_id=mlb. Amazingly, although these specific Prior Bad Acts were to be secretive (the government’s motion in limine was filed under seal), because the Defense filed documents by Microsoft Word, rather than by PDF, the specifics were revealed. Ouch. See: The Roger Clemens Perjury Trial: Document Gaffe Highlights Importance of PDF Filings, at: http://ediscovery.cdllpblogs.com/2012/05/roger-clemens-perjury-trial-document-gaffe-highlights-importance-pdf-filings/.
And just to add to the fun, we have a 403 ruling – the Government may not refer to Clemens’ “lavish lifestyle.” See: http://lawprofessors.typepad.com/whitecollarcrime_blog/2012/05/judge-walton-keeps-out-prejudicial-material-in-clemens-trial.html.
Should be interesting when McNamee is called to testify. More to come.
Many of the motions and documents have been sealed and no video has been allowed in the courtroom.
This next document is really interesting and goes to the hearsay issue – and thank you to Professor Ben Trachtenberg of the University of Missouri School of Law for his leading me to this - his law review article is cited on p. 15.
Edwards’ Memo in Support of his Motion in limine to bar the Government from Using Inadmissible Hearsay -
The government is alleging (in Count 1 of the indictment) that there was a conspiracy involving Edwards, Andrew Young, Rachel “Bunny” Mellon, Fred Baron (and possibly others) to violate election laws and the government is arguing that the statements from Andrew Young to his spouse Cheri Young (when he discusses statements made by Edwards) are admissions of a co-conspirator and admissible under FRE 801(d)(2)(E). If that does not work, apparently they are arguing that the statements were part of a legal joint venture, still admissible under 801(d)(2)(E). From pp. 18 – 20, Edwards lawyers go all out and refer to the Confrontation Clause, the law of Evidence in 1791, and the treason trial of Aaron Burr.
The Judge denied Edwards’ Motion in limine but indicated that she would determine whether particular statements would be admissible when they are actually offered at trial.
You will see that on p. 9 of the Defense Trial Brief:
Great FRE 608 issues (as well as FRE 403 issues) in the Memorandum Opinion and Order on the Government’s Motion in limine to Preclude Reference to Any Contempt Proceedings in State Court (these had to do with Andrew and Cheri Young when they were sued by Rielle Hunter for the “sex tape” and photographs). This will be a great one for class because it refers to whether the Defense may ask the Youngs about the contempt proceedings versus whether the Defense may introduce extrinsic evidence of the proceedings. See: http://dig.abclocal.go.com/wtvd/docs/Edwards_040412.pdf. The Court granted the motion in part and denied in part.
And then of course there is the Government Trial Brief – this refers to many of the issues raised above as well as the Government’s Motion in limine to preclude the testimony of two experts on campaign finance laws – Scott Thomas and Robert Lenhard. Great discussion of the proper content of expert opinion – the government argues this particular area is for the Judge, not experts. The Judge in December 2011 stated, “the motion is denied, but that’s not a ruling on the merits.”
And of course more to come…the Government is still presenting its case in chief.
On June 3, 2011, Johnny Reid Edwards (John Edwards) was indicted for one count of Conspiracy, four counts of Illegal Campaign Contributions, and one count of False Statements. See: http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/Edwards-Indictment.pdf. His trial is ongoing and is before the Honorable Catherine Eagles in the United States District Court for the Middle District of North Carolina. The trial information and exhibits that have been admitted are available here: http://www.ncmd.uscourts.gov/trial-information-usa-v-johnny-reid-edwards.
There have been some interesting evidentiary issues – many having to do with the character of witnesses and their motives. The lead witness for the prosecution was Andrew Young, a former aide to then-Presidential candidate Edwards. Young agreed to claim paternity of Rielle Hunter’s child. He and his wife Cheri Young allowed Hunter to stay in their home and assisted in moving her about the country to avoid press inquiries. Although originally denying having had an affair with Hunter and being the father of her baby, Edwards has since admitted the affair and paternity. At this trial, he claims he hid the affair and Hunter to spare his wife Elizabeth the pain of the truth. The government claims he hid the affair and Hunter to further his campaign and, in cooperating in an elaborate scheme of paying Hunter’s expenses with money from wealthy donors, violated campaign finance laws. The two donors were Rachel “Bunny” Mellon (who is now 101 years old) and Fred Baron (who has since died of cancer). Edwards claims the payments were gifts to him and not campaign contributions, and in fact Bunny Mellon filed a gift tax return for the amounts that eventually found their way to the Youngs and Hunter.
Although Andrew Young was billed as the chief government witness (and has been granted immunity from prosecution), his wife Cheri has seemingly come off as much more credible. Andrew Young wrote a book about these events entitled “The Politician.” The movie rights have been purchased by Aaron Sorkin. His direct examination testimony contained some “bombshells.” He testified that Edwards referred to Hunter as a “crazy slut” and that there was only a one in three chance that he was the father of the baby. And of course he testified that it was Edwards’ idea for Young to claim paternity because Edwards believed “nobody cares about two staffers having an affair.” During cross-examination, Young was asked about differences between his testimony at trial and what he wrote in his book. He admitted that a whopping 80% of the funds from Ms. Mellon and Mr. Baron were retained by him and his wife (incidentally, they did not report nor pay tax on this money). He also admitted that he sent an itemized list of expenses for Hunter to Mr. Baron and this list included a BMW automobile – which had already been paid for by Ms. Mellon. At the end of his cross-examination, he was asked whether he was a cold-blooded schemer motivated by ego, greed and power. Predictably, Young answered “no.”
Matthew Nelson, another Edwards aide was asked about Andrew Young by the Defense. He indicated that he thought Young was “shady,” less than forthright, and that he never found him to be the most honest person in the world. Character of a witness for truthfulness.
Another interesting issue brought up before the beginning of the trial was the fact that Young contacted other witnesses about their testimony just days before the trial. The Judge ruled that the Defense would be able to inform the jury about this, but was not allowed to use the terminology “witness tampering.” Additionally, the Defense is prohibited from mentioning a “one-night stand” that Young had with another witness, and the Judge apparently intends to limit the discussion of the “sex tape” of Edwards and Hunter (which was the subject of a civil trial between Young and Hunter). See: http://www.wjla.com/articles/2012/04/john-edwards-trial-lawyers-argue-over-sex-tape-75397.html.
Cheri Young, Andrew’s wife is the person who actually deposited the checks from Ms. Mellon. Mellon wrote the checks to an interior designer, who then sent the checks to Cheri Young (but used Cheri Young’s maiden name) to co-sign. Baron, on the other hand sent cash, and included a note that said “Old Chinese saying use cash, not credit cards.” On cross-examination, she admitted that Andrew drank heavily during 2006 and 2007 and used the sleep aid Ambien, which made her husband “loopy.” This information came from an FBI interview of Cheri Young that the Defense had obtained.
The Defense took a hit after it repeatedly asked Cheri Young about the tax issues. Judge Eagles stated, “You hit my 403 limit,” referring to FRE 403. She also stated that the Defense line of questioning was “confusing, hard to understand, and extraneous.”
Cheri Young has been described as a “Steel Magnolia” by the press due to her ability to withstand tough cross-examination. The New York Times described a fight over hearsay statements (the Defense filed a motion to strike portions of her testimony because it was based upon what Andrew told her had Edwards said). See: http://www.nytimes.com/2012/05/02/us/wife-to-edwards-aide-to-testify-a-second-day.html?_r=1. Admissions of a party opponent as said by Edwards, but Andrew’s relaying of these statements creates a hearsay issue.
Cate Upham (John and Elizabeth Edwards’ daughter) exited the courtroom allegedly in tears when witness Christina Reynolds testified. Reynolds is another former Edwards aide and was a close friend of Elizabeth Edwards. She described an argument in an airplane hanger between Elizabeth and John once the National Enquirer story about Hunter broke. She said Elizabeth was very upset, stormed out of the hanger, collapsed into a ball, and then re-entered the hanger. She then took off her blouse and bra and stated “You don’t see me anymore.” Originally, I was a bit surprised reading about this testimony that the Defense did not object on hearsay or 403 grounds, but it actually does tie in to the Defense’s theory that Edwards’ main motivation was to protect his wife from pain.
For a discussion of the case and a bit of background on the campaign laws in issue, see On Point Radio, at: http://onpoint.wbur.org/2012/05/03/john-edwards-2. Two of the guests were quite skeptical of the government’s case. I, on the other hand (and of course having absolutely no background in campaign finance law) believe the government has a fighting chance. In my mind, it’s all in the monetary transactions. If Edwards’ only motivation was covering up the affair and paternity to protect his wife and family, why would the financial transactions be structured in that way. More to come on this trial as it is expected to last a few more weeks.
Baseball Cy Young award winner Roger “the Rocket” Clemens was indicted on August 19, 2010 for one count of Obstruction of Congress, three counts of False Statements, and two counts of Perjury in connection with his depositions and testimony before the U.S. Congress during its investigation of the use of performance-enhancing drugs in professional baseball. The indictment is available at: http://a.espncdn.com/media/pdf/100819/Clemens_Indictment.pdf. His first trial ended in a mistrial last summer due to the repeated reference to previously ruled inadmissible evidence in the government’s opening statement.
Things do not seem to be going well in the second trial either. On May 2, 2012, under cross-examination by the Defense, one of the Prosecution’s star witnesses, former pitcher Andy Pettitte admitted that he could have misunderstood Clemens (after he testified on direct examination that Clemens told him he used Human Growth Hormone (HGH) during the 1999-2000 season). When asked by Defense attorney Rusty Harden if there was about a 50-50 chance he misheard Clemens, he replied “I’d say that’s fair.” The Defense asked U.S. District Judge Reggie Walton to strike all of Pettitte’s testimony because it was “insufficiently definitive.” Judge Walton is expected to rule on the motion on May 3, after he allows Assistant United States Attorney Steven Durham a chance to respond to the oral motion. See: http://www.bloomberg.com/news/2012-05-02/pettitte-says-he-may-have-misunderstood-clemens-s-hgh-remarks.html. (M &S book, Chapter 15)
Incidentally, Durham is the attorney who referred to the inadmissible evidence in the first trial. Pettitte signed a minor league contract with the Yankees in March, 2012. Clemens has indicated that he was given injections, but they were of Vitamin B12 and the anesthetic Lidocaine.
There is interesting commentary on an NBC Sports news site about Pettitte’s testimony. The author indicates that Pettitte was just as equivocal in his deposition about what he heard, and should not be blamed if Clemens is not convicted. See: http://hardballtalk.nbcsports.com/2012/05/02/andy-pettitte-should-not-get-the-blame-if-clemens-walks/
The next government witness actually did not testify. He was Steve Fehr, an attorney for the Major League Baseball Players’ Union. He was expected to testify about a conversation he had with Clemens’ attorney. Judge Walton indicated that the government was “trampling on the attorney-client privilege,” and said “you’re beating a dead horse, and you’re not going to make it come alive.” The government decided to postpone calling Fehr. (M & S book, Chapter 67)
The government called former IRS agent Jeff Novitzky to establish a chain of custody of syringes, gauze, swabs, pills and a Miller Lite can that Brian McNamee (former strength coach to both Clemens and Pettitte) gave to him. Novitzky began this entire investigation because he was investigating BALCO (Bay Area Laboratory Co-Operative) for tax issues. Interestingly, Novitzky began the investigation by “dumpster diving” at BALCO. See: http://topics.nytimes.com/topics/reference/timestopics/people/n/jeff_novitzky/index.html. The Novitzky testimony appeared to go off without a hitch, but he has not yet been cross-examined. For interesting Twitter updates, see Jim Baumbach, a reporter for Newsday, at: https://twitter.com/#!/jimbaumbach. (M & S book, Chapter 69)
One of the most interesting new developments are motions to quash filed by both Brian McNamee and his ex-wife Ellen McNamee. Clemens’ attorneys are seeking the divorce records for the couple in order to establish “prior bad acts” by Brian McNamee. The government, on the other hand, earlier filed a motion in limine to keep this information out of the trial. Brian McNamee will be a key witness in this case, as he is allegedly the person who injected Clemens with the HGH. See Craig Calcaterra, Roger Clemens Wants the Jury to Know How Bad a Dude Brian McNamee Is, NBC Sports news site: http://hardballtalk.nbcsports.com/2012/05/01/roger-clemens-wants-the-jury-to-know-how-bad-a-dude-brian-mcnamee-is/. What are the prior bad acts? Rumor has it that within the divorce records there is a history of Brian McNamee’s prescription drug abuse. The Defense apparently also has a police report in connection with a rape allegation in which the police indicate they believe McNamee is lying. It seems unlikely either of those “prior bad acts” would be ruled admissible. (M & S book, Chapter 25)
We have more interesting issues and rulings to come, no doubt.
Supreme Court Cases with Evidence Issues this Term
My colleague Professor Brooks Holland told me of this interesting website for Supreme Court cases – it is entitled Case by Case: The U.S. Supreme Court, 2011-2012 Term. See: http://www.reuters.com/supreme-court/2011-2012. I looked at the cases this term in which the Court considered evidentiary issues. I found four.
Cavazos v. Smith, decided on October 31, 2011 involved expert witnesses and the standards for an Appellate Court to overturn a jury verdict. Shirley Ree Smith was convicted by a jury of killing her grandchild by shaking him. Three experts testified for the prosecution and two testified for the defense on SBS (Shaken Baby Syndrome). In a 6–3 vote, the U.S. Supreme Court held that the Ninth Circuit had applied an incorrect standard in its ruling overturning the jury verdict. Shaken Baby Syndrome has come under increased scrutiny recently, see for example http://www.npr.org/2011/06/29/137471992/rethinking-shaken-baby-syndrome. Governor Jerry Brown of California was so disturbed by the case that he commuted the sentence of Ms. Smith, effective April 6, 2012. See the Merritt & Simmons book (M&S book), Chapter 61 for appropriate subjects for experts.
Williams v. Illinois is the pending Confrontation Clause case (see M & S book, Chapter 58) and the question before the Court is whether an expert may rely on statements made by a nontestifying forensic analyst under Rule 703 and effectively do an “end run” around the Confrontation Clause. The case was argued on December 6, 2011 (oral arguments available here: http://federalevidence.com/node/1343). The opinion has not yet been issued.
Perry v. New Hampshire is discussed by Professor Merritt below (see entry from 1/11/2012). It was a case on eyewitness testimony that was allegedly tainted by suggestion. Justice Sotomayor was the sole dissenting Justice. This was a Due Process Clause case. See M & S book, Chapter 2 on Types of Courtroom Evidence.
The final case I discovered is Vasquez v. U.S. It is actually not a Supreme Court case, because the Court accepted the case, held oral arguments, then the Court decided that cert was “improvidently granted.” The issue had been whether the test applied for harmless error on the admission of evidence was correct. See: http://www.oyez.org/cases/2010-2019/2011/2011_11_199. For a discussion of harmless error, see M & S book, Chapter 5.
George Zimmerman has been charged with the second-degree murder of Trayvon Martin. Under the Florida second-degree murder law no premeditation is required. Zimmerman turned himself in and is expected to plead not guilty.
In perhaps the weirdest twist in this case - his former attorneys held a 40 minute press conference a day before the Information was filed to announce they were no longer representing him because Zimmerman had cut off contact a couple of days before that. Attorneys Craig Sonner and Hal Uhrig talked for 40 minutes about Zimmerman's mental state, gave detailed information about the facts and the evidence (at 23 minutes in the video below), his family relations, whether he was still in the State of Florida, etc. Attorney Alan Dershowitz (not connected with the Zimmerman case) is quoted as wondering whether they waived the attorney-client privilege for their client.
Zimmerman's current lawyer, Mark O'Mara criticized Sonner and Uhrig. O'Mara is currently a legal analyst for a CBS News affiliate - and he himself commented on the case just a day before the Information was filed.
Trayvon Martin Shooting - Possible Evidentiary Issues
On February 26, 2012, Trayvon Martin was shot by George Zimmerman (a Neighborhood Watch captain) in Sanford, Florida. Martin was 17 years old, unarmed, and carrying a bag of Skittles candy and an iced tea. He died at the scene. Zimmerman was taken into custody and then released without charges. The case has been in the news since approximately the middle of March. The U.S. Justice Department began an inquiry on March 19, 2012 and Florida Governor Rick Scott assigned a Special Prosecutor (Angela Corey) to the case on March 23, 2012. The Chief of Police of Sanford, Florida has temporarily resigned and the Prosecutor at the time of the shooting has removed himself from the investigation. Protests about the treatment of Zimmerman have taken place across the U.S.
Emily Bazelon, a Senior Research Fellow at Yale Law School ponders some of the possible evidence should the case ever go to trial in a Slate.com article available at:
The Orlando Sentinel newspaper asked two forensic analysts to compare the voices on the George Zimmerman 911 call to the screams for help overheard in a neighbor’s 911 call that evening. Zimmerman’s family claims the cries for help are his, while Martin’s family claims the screams were made by Trayvon. A CNN article indicates that perhaps the voice analysis is inadmissible in court. Both of the forensic analysts used by the Sentinel determined that the cries for help most likely did not come from George Zimmerman. The article cites David L. Faigman, the John F. Digardi Distinguished Professor of Law at U.C. Hastings who indicates that courts and the scientific community have mixed opinions on the reliability of “voiceprint” analysis. The story goes on to more commentary by CNN legal analysts Sunny Hostin and Beth Karas who both indicate this analysis may not be allowed before a jury. Hostin cites to the Frye case, as this would be a Florida case (unless the Justice Department brings charges) and Florida follows the Frye analysis for expert testimony. The Hostin and Karas analyses appear in the 3rd and 4th videos in the story.
A video of George Zimmerman provides a possible authentication issue. In the video, Zimmerman is being taken into the police department. Although Zimmerman’s lawyer has indicated Zimmerman was badly injured, it certainly did not appear to be the case in the original video. Then in an enhanced picture, Zimmerman appears to have an injury on the back of his head.