Illinois Social Media Law Case Summaries

D. O. H., a minor, by OSAMA HADDAD and HIND HADDAD v. LAKE CENTRAL SCHOOL CORPORATION

United States District Court, N.D. Indiana, Hammond Division

This matter arises from the plaintiff, D.O.H.'s, claim that he was subject to bullying and harassment by fellow students at Lake Central High School, which caused him physical and emotional damages. The defendants served the plaintiffs with Interrogatories, Requests for Production, and Requests for Admissions on July 31, 2012. The plaintiffs answered the discovery requests on November 13, 2012, but omitted records pertaining to the requests to which they objected. Attorneys for both the plaintiffs and defendants exchanged letters and had telephone conversations which resulted in the narrowing of the scope of the requests with regard to D.O.H.'s social media activity. The plaintiffs subsequently produced additional material in response to the amended request but continued to object to some requests. A dispute remains between the parties as to undisclosed portions of D.O.H.'s Facebook profile, music, videos, withheld recordings in the plaintiff's possession, and a privilege log.

The plaintiffs allege that they have provided all social networking information believed to relate to any of the allegations in the complaint. The plaintiffs further claim that the defendants' requests for production of the remainder of D.O.H.'s social media records are objectionable because the scope is not sufficiently narrow and does not provide "specific guidance" as to the information sought. The defendants argue that they are entitled to full disclosure of D.O.H.'s social media records because it relates to his claims of bullying and harassment and that the discovery requests seek information that is reasonably calculated to lead to the discovery of admissible evidence.

Ultimately, the court determined the appropriate scope of relevance to be: any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for the relevant time period "that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state."

The next item of contention between the parties is the disclosure of Plaintiff's music videos. The defendants' Request for Production Number 6 requested:

Electronic copies of each and every video or photograph in the possession or control of [D.O.H.] posted on YouTube, Facebook,Twitter, MySpace, or any other social media site of [D.O.H.'s] music or music videos.

Defendants' Request for Production Number 7 requested:

Any and all CD's, digital recordings or other medium containing music created by or featuring [D.O.H.].

Because the defendants were able to show that an additional music video exist, the plaintiffs were ordered to produce the recording to which the defendants have specifically referred as well as any and all of D.O.H.'s other music and music videos in audio and/or video format and a listing of all the songs and videos produced.

The third discovery matter at issue is the production of information regarding five voice recorded statements in the possession of the plaintiffs.

Finally, the plaintiffs request the scheduling of a status conference to enable the parties to set new deadlines through trial in this matter. The court ORDERS a telephonic status conference to be held on February 7, 2014 at 10:30 a.m. at which time the parties can discuss whether any further motions involving discovery disputes will be necessary and can set the necessary remaining deadlines. The court will initiate the call.

Based on the foregoing, the Defendants' Motion to Compel was GRANTED IN PART and DENIED IN PART and the Motion to Extend Discovery Deadlines GRANTED.

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UNITED STATES OF AMERICA v. LAVONTE L. JOHNSON

United States District Court, E.D. Wisconsin.

On August 27, 2013, while viewing the Facebook pages for groups from his beat, Racine Police Officer Bryant Petersen found a music video on YouTube. In the video, Petersen observed the Defendant displaying what appeared to be an Smith and Wesson 32. caliber handgun. Officer Petersen knew the Defendant to be on extended supervision, so he alerted the Defendant's Probation Agent, Karen Hart. After viewing the video evidence Hart issued an Order to Detain Johnson.

On August 29, 2013, Petersen and another officer observed Johnson walking down the street; knowing of the Order to Detain, Petersen arrested Johnson. Petersen performed a custodial search of Johnson, during which search Petersen discovered a Smith and Wesson .32 caliber revolver in the left pocket of Johnson's shorts. Johnson sought to exclude the firearm on the grounds that Hart had no reasonable basis to issue the Order to Detain and, therefore, the arrest was improper, the custodial search was improper, and the firearm was unlawfully seized.

The court agreed with Magistrate Callahan that Johnson's conduct in the video provided a reasonable basis from which Hart concluded that Johnson had  violated the terms of his supervision, making the arrest proper.

Finally, Johnson also objected to Magistrate Callahan's order denying an evidentiary hearing in this matter. The only "definite" allegations of factual disputed Johnson articulated facts that were found not necessary to the determination of the motion. The Court found that an evidentiary hearing was not required in this case, and Johnson's request for a hearing was properly denied.

IT WAS ORDERED that the December 23, 2013 recommendation of Magistrate Judge William E. Callahan) that defendant Lavonte L. Johnson's motion to suppress be denied and the same is hereby ADOPTED; and

IT WAS FURTHER ORDERED that defendant Lavonte L. Johnson's motion to suppress be was hereby DENIED.

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eDiscovery Rules Applied to Social Media: What This Means in Practical Terms for Businesses

FindLaw for Legal Professionals

By Michelle Sherman

Companies are on social media. They are interacting and connecting with customers through Facebook, Twitter and blogs. In a study last year, numbers on the conservative side show that 65% of Fortune Global 100 companies have active Twitter accounts, and 54% have Facebook fan pages. One third of these companies have a blog. This is how companies are doing business today. And, with this presence online comes legal obligations to capture and save these communications.

- See more at: 

http://technology.findlaw.com/modern-law-practice/ediscovery-rules-applied-to-social-media-what-this-means-in.html#sthash.0rV0NkYL.dpuf

MICHAELEA K. STAP v. JEFFREY W. JANSEN - Harassment, Order of Protection

We now consider MICHAELEA K. STAP v. JEFFREY W. JANSEN No. 4-12-0513., Filed April 23, 2013 Appellate Court of Illinois, Fourth District.

Representing himself Pro Se, Michaelea K. Stapp's petition to extend a July 15, 2009, plenary order of protection against respondent, Jeffrey W. Jansen, her ex-boyfriend and the father of their child, the Court found respondent had made multiple attempts to contact petitioner in violation of the original order of protection.

Respondent appealed, arguing the trial court erred in granting the extension of the plenary order of protection where petitioner presented insufficient evidence to justify the extension. The Court affirmed.

On July 15, 2009, the trial court issued a plenary order of protection against respondent relating to allegations respondent was harassing and stalking petitioner. On May 11, 2011, petitioner filed a motion to extend the plenary order of protection, alleging there had been no material change in circumstances since the original order issued.

During the March 21, 2012, hearing on the petition to extend, Quincy police officer David Distin testified he was assigned to investigate a complaint by petitioner regarding respondent's violation of an order of protection. According to Distin, petitioner informed him she had received a message from respondent on an Internet dating website called "plentyoffish.com" (Plentyoffish). Petitioner reported she checked her account just after midnight on November 17, 2009, and found she had received a message bearing respondent's picture with the username, "Sotoris."

Petitioner testified respondent had contacted her numerous times on the Internet. In addition to sending her the picture of the dog, petitioner testified respondent also sent her a message through the Plentyoffish website, which read "hi." Petitioner testified a Plentyoffish user could delete messages sent from his or her account. According to petitioner, she never invited respondent to contact her through the dating website. Petitioner testified respondent also made contact with her through MySpace and Facebook.

Petitioner was called in rebuttal and testified she had no formal computer training and did not "doctor" any Facebook, MySpace, or any other social media accounts to assume a false identity. Petitioner testified, in preparing the documents, all she did was press the print button on the computer. At the conclusion of the hearing, the trial court stated it would take the matter under advisement.

In its detailed May 4, 2012, order, the trial court found the following:

"1. The court has had the opportunity to observe all the witnesses who testified, and to determine the weight and credibility to be assigned to each of them.

2. The court has examined all of the exhibits which were admitted herein.

3. The court has reviewed the Plenary Order of Protection ordered herein on July 15, 2009.

4. Pursuant to 750 ILCS 60/220(e), the court finds that the petitioner has proven by a preponderance of the evidence that the respondent has made multiple attempts to contact her while the Plenary Order of Protection has been in effect; that said attempt[s] at contacts have been in violation of the restrictions in said order of protection; and that the petitioner has shown good cause for an extension of said order of protection.

A Lengthy Analysis section follows, which discusses the Illinois Domestic Violence Act, (750 ILCS 60/220(e) (West 2010).

 In sum, both petitioner and respondent testified in this case. Petitioner maintained respondent had made multiple attempts to contact her. Respondent denied petitioner's allegations. While the parties presented conflicting testimony, the trial court resolved the issues in petitioner's favor. The evidence presented was sufficient to support the court's finding. Thus, the court did not err in granting an extension of the plenary order of protection

For the reason's stated, the Court affirmed the trial court's extension of the plenary order of protection.

http://scholar.google.com/scholar_case?case=15062077396461742702&q=facebook&hl=en&as_sdt=4,14&as_ylo=2013

UNITED STATES OF AMERICA, Plaintiff, v. CHRISTOPHER JUSTIN EADS - Child Porn , Social Media

As we have alluded to many times here at Illinios Social Media Law, the ease of use and ubiquitous nature of the Internet makes it a happy hunting ground for those seeking child pornography. Social Media makes it a breeze as we see here with the dating site Myspace, which features teens and even younger members and abounds with revealing and suggestive "photographs" of "young ladies". This site presents a cornucopia of potential victims to the aspiring child molester. 

On October 26, 2011, Detective Darin Odier ("Det. Odier") with the Indianapolis Metropolitan Police Department was conducting an investigation to identify persons possessing and sharing suspected child pornography using internet share and exchange files. Detective Odier was able to download shared files which he believed depicted images of child pornography from an IP address. The subscriber of the IP address was identified as Christopher Eads and the server address was identified as 311 Grant Street, Apt. B, Brownsburg, Indiana. 

On December 21, 2011, a five count indictment was filed charging Eads with: (1) violation of 18 U.S.C. § 2252(a)(2) by distributing child pornography; (2) violation of 2252(a)(4)(B) by possessing child pornography; (3) violation of 18 U.S.C. § 922(g) felon in possession of a firearm; (4) violation 18 U.S.C. § 912 by impersonating a special agent of the Federal Bureau of Investigation; and (5) violation of 18 U.S.C. § 1512(b)(1) by unlawfully tampering with a witness. 

Mr. Eads elected to represent himself in the jury trial. On February 12, 2012 Mr. Eads filed a Notice of Intent to Exercise Right of Self-Representation during his speedy trial which was scheduled to begin on February 21, 2012. On February 17, 2012, the Court conducted a Faretta hearing wherein Mr. Eads was advised that while he has a constitutional right to self-representation, he was entitled to court-appointed counsel. The Court also advised Mr. Eads of the nature of the charges, the penalties he was facing and inquired as to Mr. Eads' educational background, and familiarity with the rules of evidence and trial procedure. The Court encouraged Mr. Eads to allow FCD counsel to represent him in light of the hazards and disadvantages of self-representation. 

From February 21, 2012 until February 24, 2012, a four-day jury trial was held in this criminal matter on three of the counts charged: (1) distributing child pornography; (2) possessing child pornography; and (5) unlawfully tampering with a witness. On February 24, 201, the jury returned a guilty verdict on all three counts.

On March 8, 2012, within fourteen days of the jury's verdict being returned, Mr. Eads filed the first of several Motions for a New Trial.  Incriminating evidence had been on the computer, including his Myspace account.  Nathan Asbury, an associate also used the computer and was a key witness in the government's case. Tax, credit card, insurance information were also found on the computer, belonging to Ead's wife. .

Mr. Eads' 24 grounds for a new trial can be categorized as (1) newly discovered evidence and (2) other grounds, including assertions that he was on anti-anxiety medication which affected his ability to represent himself, allegations that certain witnesses were not allowed to testify, allegations that his wife, Mrs. Eads, was threatened if she testified, allegations that the jury should not have been allowed to view certain evidence, and allegations that stand-by counsel did not perform adequately.

Eads bore a heavy burden on his motion for new trial. Evidentiary rulings by the trial court do not warrant a new trial unless the defendant can clearly demonstrate that the court abused its wide discretion. United States v. West,670 F.2d 675, 682-8 (7th Cir.), cert. denied, 457 U.S. 1124, 102 S.Ct. 2944, 73 L.Ed.2d 1340 (1982). In order to prevail, a defendant must demonstrate that substantial prejudicial error occurred during the trial.

The jury's verdict  is entitled to presumptive validity and the trial court should exercise its authority in this area only in the cases when it is convinced that a gross injustice will have been done if it fails to act. US v Gross, 375 F.Supp. at 973-4.

Eads based his argument for a new trial on:

1. Newly Discovered Evidence

To obtain a new trial based on newly discovered evidence, a defendant must show that the evidence: (1) was discovered after trial; (2) could not have been discovered sooner with due diligence; (3) was material and not simply impeaching or cumulative; and (4) if presented at a new trial would probably result in acquittal. United States v. Reyes, 542 F.3d 588, 595 (7th Cir. 2008).  Eads argues that his Mother could present abili evidence, but the Court found that such "alibi" evidence from Mr. Eads' mother, even if presented, would have been cumulative and probably not have changed the outcome of the jury's verdict.

2. Other Grounds

Federal Rule of Criminal Procedure 33(b)(2) provides that a district court may vacate any judgment and grant a new trial if the interest of justice so requires.

A. Anti-anxiety medication affected Mr. Eads' ability to represent himself at trial.

Mr. Eads alleged that he was on medication during the trial which made him "drowsy and loopsy". During the trial, Mr. Eads did not inform the Court that his anxiety medication was affecting his ability to proceed as his own counsel.  In his motion for a New Trial, Eads presented no evidence that indicated he was under the influence of such medication during the course of the Jury Trial. At no time did the Court observe Mr. Eads appearing disoriented, drowsy or "loopsy". In fact, Mr. Eads was alert and quite competent during the trial proceedings.

B. Certain witnesses were not allowed to testify.

Mr. Eads proffers that several witnesses' testimony would have been critical to his case, however these witnesses were not allowed to testify. Mr. Eads' arguments fail, primarily because as his own counsel, he could have called any of the witnesses. The Court found\ no evidence  to support Mr. Eads' allegations that he was "not allowed" to call any of the witnesses he complained of.

C. Rachael Eads was threatened if she testified.

Eads alleges that his wife was threatened (presumably with prosecution for perjury and loss of her child) by the government agents and her own lawyer; however Mr. Eads' assertions lack foundation. Eads cited United States v. Vavages, 151 F.3d 1185 (9th Cir.1998) to support his position that substantial government interference hampered Mrs. Eads' choice to testify. However, the facts in this case were found to be clearly distinguishable from those in Vavages.

D. The jury should not have been allowed to view certain evidence.

Eads complained of several evidentiary violations as grounds for a new trial. However, evidentiary rulings by the trial court do not warrant a new trial unless the defendant can clearly demonstrate that the court abused its wide discretion. United States v West, 670 F.2d 675 682-8 (7th Cir.). 

E. Stand-by counsel did not perform adequately.

Finally, Mr. Eads complains that standby counsel, Mr. Dazey, did not perform adequately.  Because Mr. Eads waived his right to counsel and exercised his right to self-representation, Mr. Dazey's participation in the trial was only as stand-by counsel.  A defendant is not entitled to relief for the ineffectiveness of standby counsel." See U.S. v Woodard, 2008 WL 513159 (N.D. Ind. 2008).

The Court found that  Mr. Eads failed to meet his burden to show that a gross injustice would occur if he was not granted a new trial. Accordingly, Mr. Eads' Motion for New Trial (Dkts. 83-4, 87, 95 and 99) was DENIED.

Traditional Legal Wisdom advises that Only a Fool would choose to represent himself. 

Good advice.

UNITED STATES OF AMERICA v. CHRISTOPHER JUSTIN EADS
Case No. 1:11-cr-00239-TWP-KPF
United States District Court, S.D. Indiana, Indianapolis Division.
 May 4, 2012.

  http://scholar.google.com/scholar_case?case=3116397327714677231&q=MySpace&hl=en&as_sdt=4,14,112,127,268,269,270,271,272,314,315,331,332,333,334,335,377,378&as_ylo=2012

The Nuts And Bolts Of Social Media Discovery

Harassment through Electronic Means Continued

Are Facebook And Myspace Posts Really Private?

Twitter Threats in Custody Dispute R.M. v. D.Z. 2013 IL App (3d) 120846

2013 IL App (3d) 120846

R.M., Petitioner-Appellee,
v.
D.Z., Respondent-Appellant.

3-12-0846

APPELLATE COURT OF ILLINOIS THIRD DISTRICT

Order filed March 4, 2013
A.D., 2013

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois,
Appeal No. 3-12-0846 Circuit No. 05-F-54
Honorable Michael D. Kramer, Judge, Presiding.

        JUSTICE SCHMIDT delivered the judgment of the court.

        Justices Holdridge and O'Brien concurred in the judgment.

This custody dispute concerns twins born in August of 2000. A "February 8, 2006, joint parenting agreement awarded joint custody, naming R.M. the residential parent. The agreement provided respondent with reasonable visitation and ordered him to pay slightly less than 28% of his net biweekly income due to the fact that he provides substantial daycare for the children. 

¶ 6 The petition alleges that R.M. announced an intent to leave respondent's residence and move into another residence in which her 17-year-old daughter, K.M., would also be residing. The petition continued that K.M.:

"has threatened to physically hurt the minor children by twittering

on January 7, 2010, 'I'm going fucking insane I hope these little fuckers have school tomorrow or I will probably kill them ... my brothers are such ungrateful pricks I hate disrespectful little cretins.' On January 3, 2010, K.M. twittered 'beat kids.' "

¶ 7 Respondent attached documents to his petition purporting to be printouts from K.M.'s Twitter account. These documents also indicate that K.M. authored tweets about "drinking with my mom ... now I know why I only drink wine" and "drinking Bailey's with my mama." On February 5, 2010, K.M. tweeted, "I love drinking with my mom LMFAO."

 When announcing these rulings, the trial court noted that it understood respondent's motivation for bringing the petition to change custody given the Twitter postings of K.M. However, the court noted that "it's become apparent to the court after hearing many of these types of cases now that young people don't put the normal every day occurrences of life on their Twitter account postings. *** And trying to rely upon Twitter account postings or MySpace or Facebook as proof of facts, actually things that have happened, just can't be done - - especially with young people."

¶ 36 The court acknowledged K.M.'s use of Ecstasy and marijuana, finding them troublesome, but found the mother was not aware of the use of either. 

While the court noted the attitude toward the boys as displayed in the Twitter postings "is alarming," it found that the postings were not proof of "something actually occurring." Ultimately, the court noted that "actual evidence of occurrences is - - is just lacking."

Respondent arrives at this conclusion by noting that the "only reference the court had regarding the time period K.M. was abusing Ecstasy" came from a "blog posting" dated December 20, 2009. This blog posting refers to Ecstasy use the previous winter. As R.M. testified she lived with K.M and the boys until August of 2009, respondent claims that the trial court's finding that the drug use "was not with permission or promotion or knowledge of the parent that she was not even living with" is simply not supported by the record.

The substance of respondent's arguments seeking a rehearing equate to a disagreement with the trial court's finding that K.M. did not live with R.M., and that the trial court erred in finding that the evidence admitted failed to support the conclusion that K.M. posed a threat to the minor children. As noted above, sufficient evidence exists in the record to support the trial court's findings that K.M. does not live with R.M and that her social media postings do not evince a material change in circumstances sufficient to modify custody. As such, we cannot say the court erred in denying respondent's motion for a rehearing.
CONCLUSION

¶ 54 For the foregoing reasons, the judgment of the circuit court of Kankakee County is affirmed.

¶ 55 Affirmed."

http://www.plol.org/Pages/Secure/Document.aspx?d=8UzTJwWiv6uDtBZEHN1Umg%3d%3d&l=Cases&rp=4

Simms v Lewis - Facebook Discovery Order et al

In the Indiana County,  PA case of Simms v. Lewis, No. 11961 CD 2011 (C.P. Ind. Co. Oct. 10, 2012 Bianco, J.), Judge Thomas M. Bianco took a middle road and granted in part and denied in part a defendant's motion to compel access to a plaintiff's social networking information in a motor vehicle accident case.  The case involved a Facebook account, a MySpace account and a MyYearbook account. 

The court in rejected the Plaintiff's expectation of privacy argument, observing that "the purpose of social networking sites is to share information."  The court ruled that a "Plaintiff cannot maintain a reasonable expectation of privacy  when she created the account and voluntarily posted this information, knowing that the information could become publicly available."

http://www.padefense.org/recent-facebook-discovery-decisions-of-note.html

The complete opinion and order can be found here:

https://docs.google.com/file/d/0B83Pxa3TYcXMcGtnbVNzZnM1alU/edit