Convicted by Text Message - Overcoming Authentication and Hearsay Objections

A wife was convicted of simple assault on her husband. Text messages were used in her conviction to show her state of mind. The Defendant appealed her conviction, claiming the text messages from her phone, the victim’s phone and a photo exhibit of a text message were improperly admitted on foundational and hearsay grounds. State v. Thompson, 2010 ND 10, P1 (N.D. 2010).

The Supreme Court of North Dakota did not agree with her.

The Facts: An SMS State of Mind of Assault

Halloween 2008: the Defendant “texted” her husband for money to buy their children Halloween costumes. Thompson,at *P3. One text message sent at 8:20 am contained threatening and profane language. Id.

After the husband and wife drove the children to school, the Defendant demanded money and refused to get out of the victim’s car. The victim had to drive to the police department for the Defendant to be removed from the car. Thompson, at *P3.

Police were called to the Defendant’s house after 11:00 pm that night, finding the victim nursing an injured eye and several blows to the face and back. The husband was hit several times by the wife in a fight over money. Thompson, at *P3.

The wife was arrested and convicted for assault.

Motion in Limine to Exclude Text Messages

The Defendant brought a motion in limine to exclude any testimony or evidence of the text messages. Thompson, at *P6. The Defendant claimed the texts were not relevant and inadmissible. Thompson, at *P9.

Text Messages at Trial

The victim testified at trial about a threatening and profane text message sent the morning of the day he was attacked by the Defendant. Thompson, at *P7. The State offered a photo of the text message as a trial exhibit. Id.

The Defendant claimed the victim could have sent himself the threatening text from the Defendant’s phone. Thompson, at *P7.

Text Messages State of Mind

The trial court allowed the text messages at trial to show the Defendant’s state of mind the day of the attack. Thompson, at *P11.

Defendant’s Arguments

The Defendant claimed the State failed to authenticate the text messages.

The Defendant argued that “text messages are inherently unreliable because of their relative anonymity and can rarely be connected, to a certainty, with a specific author.” Thompson, at *P12.

Direct Examination of Victim

The husband stated on direct examination that the text messages were from the Defendant. The victim explained that he stored his wife’s phone number as “Fr: Jen.” Each text message began with the Defendant’s stored phone number in the victim’s phone. The text messages were all “signed” with the Defendant’s signature “cuzImJenIcan.” Thompson, at *P16.

The Defendant challenged the admission of the text messages at trial as hearsay. Thompson, at *P16. The trial court ruled the text messages were “a declaration against interest and therefore not subject to [the] hearsay rule.” Thompson, at *P16.

Rules of Authentication

Authentication is a “condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Thompson, at *P21.

Pursuant to the Federal Rules of Evidence (which in this case mirrored the state rules), the party offering the evidence “must provide proof sufficient for a reasonable juror to find the evidence is what it purports to be. Thompson, at *P21, citing United States v. Hyles,479 F.3d 958, 968-69 (8th Cir. 2007).

Authentication of Electronically Stored Information

The Supreme Court of North Dakota had not addressed text message authentication before and examined other case law where electronically stored information had been authenticated. Thompson, at *P24. In all of the cases the Supreme Court of North Dakota discussed, circumstantial evidence was used to authenticate electronically stored information. Thompson, at *P24.

Authentication examples summarized by the Supreme Court of North Dakota included:

E-mails properly authenticated when they included defendant’s e-mail address, the reply function automatically dialed defendant’s e-mail address as sender, messages contained factual details known to defendant, messages included defendant’s nickname, and messages were followed with phone conversations on same topic.

United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000)

Foundational requirement for chat room conversation established when defendant admitted he used screen name “Cessna” when he participated in recorded conversations, several co-conspirators testified he used that name, and defendant showed up at meeting arranged with person using screen name “Cessna.”

United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000)

Threatening text messages received by victim on cell phone were properly authenticated when circumstantial evidence provided adequate proof message was sent by defendant.

Dickens v. State, 927 A.2d 32, 36-38 (Md. Ct. Spec. App. 2007)

Text messages properly authenticated when telephone employees testified about logistics for text messages and about how particular text messages were stored and received and messages contained sufficient circumstantial evidence the victim was the person who sent and received the messages.

State v. Taylor, 632 S.E.2d 218, 230-31 (N.C. Ct. App. 2006)

Instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances.

In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005)

All cases quoted from Thompson, at *P24.

Text Message Authentication

The Supreme Court of North Dakota held that the authentication of the text messages were proper. The trial court was presented evidence from the victim of his knowledge of the Defendant’s cell phone number and her signature on text messages. This evidence was sufficient under the Evidence Code to authenticate the text messages. Thompson, at *P26.

Hearsay Challenge

The Supreme Court of North Dakota curtly dealt with the hearsay challenge: A party’s own statements are not hearsay. Thompson, at *P31.

The Unreliable Text Message Argument

The Supreme Court of North Dakota quickly shot down the arguments that a text message was “unreliable” and could have been sent by the victim. Thompson, at *P25-26.

The Court, echoing a Pennsylvania Superior Court that addressed the authentication of instant messages, rejected the “argument that electronic messages are inherently unreliable because of the messages’ relative anonymity.” Thompson,at *P25.

As noted in by the Pennsylvania court in In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005), paper documents can also be subject to forgery or signature letterhead stolen and used by another. Id. As the F.P. court stated:

We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa. R.E. 901 and Pennsylvania case law. We see 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.

Thompson, at *P25, citing In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005).

The Supreme Court found no error in the trial court’s finding of the victim’s authentication of the text messages and rejected the argument the text messages were “unreliable.” Thompson, at *P26.

Bow Tie Thoughts

State v. Thompson is a thoughtful opinion on the rules of Evidence and authenticating text messages. The one area that could have been worth exploring was how the text messages were collected.

One of the trial exhibits was a photo of the text message. Thompson,at *P7. This certainly is a powerful trial exhibit to show the Defendant’s phone number, the text message and signature line.

However, was the photo the sole means of preserving the text message? It is possible the investigating officers just took photos to preserve the evidence after the incident.

I encourage parties to defensibly preserve relevant electronically stored information using a product like Paraben when dealing with something as transitory as a text message on a cell phone. Alternatively, if the phone is no longer physically available, the cell phone text message history can also be requested from some service provider (this would depend on whether the service provider was retaining any of the text message history). While taking a photo of a text message has been done before, it is good for attorneys to realize the different methods of collection and preservation at their disposal.

This entry was posted on Wednesday, May 12th, 2010 at 3:50 pm and is filed under Admissibility, Electronically Stored Information, Text Messages,e-Discovery. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

Law Without Borders: INDIA LEGAL TEAM WINS BIG APPEAL VICTORY IN CALIFORNIA

Law Without Borders: INDIA LEGAL TEAM WINS BIG APPEAL VICTORY IN CALIFORNIA

Judge Clears Attorneys in Qualcomm case: Finds No Bad Faith and Declines to Impose Sanctions : Delaware Corporate and Commercial Litigation Blog

Judge Clears Attorneys in Qualcomm case: Finds No Bad Faith and Declines to Impose Sanctions : Delaware Corporate and Commercial Litigation Blog

U.S. Software Maker Sues China, Alleging Piracy

• E-Mail
• Send To Phone
• Print
• ShareClose
  • Linkedin
  • Digg
  • Facebook
  • Mixx
  • MySpace
  • Yahoo! Buzz
  • Permalink
  • 
    

By MICHAEL WINES

Published: January 6, 2010

BEIJING — A California software company has sued two Chinese technology firms, charging that they stole its computer code to make an Internet-monitoring program that China’s government sought to install on every computer in the country last year before backing down.

Cybersitter’s lawsuit also names as defendants seven Asian computer makers — including Sony, Lenovo and Acer — accusing them of willingly joining a Chinese government scheme to spread the software, known as Green Dam Youth Escort, throughout the country. The Chinese government was also named as a defendant.

Cybersitter said the two Chinese software companies had pirated 3,000 lines of its code to create Green Dam, which was ostensibly designed to block Web sites that featured pornography and violent content.

But critics and computer experts said the Chinese version was also tailored to enable Chinese government censors to block some political and religious speech and other content, such as references to the 1989 Tiananmen square protests, that the government deemed unsuitable.

Cybersitter’s suit, filed Tuesday in the U.S. District Court for California’s Central District, alleges that the pirated lines of code “include the heart of Cybersitter software: its proprietary content filters” that instruct a computer to block sites containing banned keywords.

The principal defendants, Zhengzhou Jinhui Computer System Engineering Ltd. and Beijing Dazheng Human Language Technology Academy Ltd., developed and marketed the software. They could not be reached for comment on the lawsuit. Lenovo, China’s largest computer maker, said it does not comment on pending litigation.

Each of the computer makers complied with a Chinese government requirement to install Green Dam on new computers, or to include a CD containing the program with each new computer. The lawsuit alleges that the computer makers eventually found out that the software included pirated code, but continued to comply with the government directive for fear of losing market share if their computers were banned in China.

The government originally sought to require that Green Dam be installed on every new computer sold in China. But authorities backed down last summer after an outcry from computer users, from ordinary web surfers to businesses, that saw the software as a threat to their free-speech rights and their computer security.

Some analysts had expressed fears that the software included “back doors” that might allow outsiders to see computer users’ files. Others said the software was so poorly designed that crashes and other problems posed a threat to the security of users’ data.

“They were conspiring to distribute an illegal program to millions of users. They continued to distribute even after everyone knew they were stolen programs,” Gregory Fayer, an attorney for Cybersitter, said in a phone interviewon Wednesday. “There were reports just last week that some of the defendants continue to distribute in China.”

The Chinese companies’ theft was so shoddily executed, Mr. Fayer said, that some of the software code in Green Dam includes announcements directing users to visit the Cybersitter Web site.

China has long been notorious for the ease with which films, computer games, music software and other intellectual property are pirated and sold openly, often on Chinese Web sites that are thoroughly patrolled and regulated by the government. Chinese authorities have made sporadic and unsuccessful stabs at limiting the piracy, but intellectual property rights have become a major point of disagreement between China and some Western nations.

Cybersitter said its $40 software has more than 2.4 million active users worldwide. But in the space of months, the suit alleges, China mandated the installation of the pirated program on 53 million computers designed for home use and a half-million school PCs. The software was downloaded by other users 3,270,000 times, the suit stated.

The suit seeks more than $2.25 billion in damages, a figure attained by multiplying the number of Chinese computers using Green Dam by the price of the Cybersitter software.

David Barboza in Shanghai contributed reporting.

ABA Seminar on Delaware Corporate Law and Potentially Increasing Federalization

Posted on November 20, 2009 by Francis G.X. Pileggi

ABA Seminar on Delaware Corporate Law and Potentially Increasing Federalization

• Email This
• Print
• Comments
• Trackbacks

I am blogging from the ABA Business Law Section Fall Meeting in D.C. This post is the product of the notes taken at the following panel presentation:

Federalization of Corporation Law in a Time of Crisis - Which Institutions are Best Able to Improve Corporate Governance and Performance Going Forward. Presented by: Business and Corporate Litigation Committee and The Committee on the Federal Regulation of Securities

Moderator: Rolin P. Bissell, Partner, Young Conaway Stargatt & Taylor LLP, Wilmington, DE

Speakers:

Hon. Myron T. Steele, Chief Justice, Supreme Court of Delaware, Dover, DE

Hon. J. Travis Laster, Vice Chancellor, Delaware Court of Chancery, Wilmington, DE

Jill E. Fisch, Perry Golkin Professor of Law and Co-Director, Institute for Law and Economics, University of Pennsylvania Law School, Philadelphia, PA

Thomas J. Kim, Chief Counsel and Associate Director, Division of Corporation Finance, U.S. Securities and Exchange Commission, Washington, DC

Michele E. Rose, Partner, Latham & Watkins LLP, Washington, DC

The financial meltdown injected urgency to the debate about the roles of federal and state law in corporate governance. Members of the Delaware judiciary, federal regulators and practitioners debate who should make the rules on proxy access, executive compensation and fiduciary duties and what those rules should be.

N.B. The following overview is not a transcript and merely constitutes my highlights of some statements made by the speakers on the panel (the members of which may not necessarily agree with the accuracy of my notetaking.) My random notes are below each speaker's name.

The Hon. Myron T. Steele, Chief Justice of the Delaware Supreme Court.

For many years, the corporate governance of the internal affairs of a corporation have been governed by the law of the state of incorporation. The allocation of authority between the board and the shareholders is governed by standards imposed by statute and case law, and by private ordering. The concept of federalization would seek to impose the same statutory standard to govern all 15,000 publicly held corporations. That standard would also be subject to various interpretations by 1,300 federal judges throughout the country. For example, is a federal standard that requires all corporations in all situations to separate the chairman and the CEO, too rigid?

Some suggested federal standards such as elimination of staggered boards, if we are consistent, should also make us reconsider the constitutional procedure of staggered elections for the U.S. Senate, which only stands for election in groups of one-third in each election cycle.

Most proposals are touted as giving shareholders more power, but would a single federal standard for all aspects of corporate governance truly give shareholders more power? The existing system is based on using the states, pursuant to federalism, to experiment with different options which allows shareholders to select which state they prefer. Regarding voting rights of shareholders, Delaware cases have carefully protected this franchise and have consistently prohibited any intereference with it.

As for disclosure, the Delaware Supreme Court (as constituted at that time), in Malone v. Brincat, made clear that the common law duty of disclosure applies when any information is disseminated by the board, even if no shareholder action is required.

The Chief Justice expressed his concern that federal legislation may be based on the false notion that corporate governance was the cause of the recent economic crisis, as opposed to regulatory enforcement, for example. As a concluding aside, His Honor suggested that boards should be enabled to fulfill their duty to focus on long-term maximization of shareholder wealth instead of spending an inordinate amount of time on compliance issues.

Thomas Kim, Chief Counsel and Associate Director, SEC Division of Corporation Finance.

The SEC's role has not changed. One of their goals is to regulate disclosures for the benefit of shareholders. For example, one requirement is that any director who does not attend at least 75% of all meetings be disclosed. Another example is the SOX requirement to disclose whether a financial expert is on the audit committee. Such disclosure requirements tend to impact behavior.
He would hope that state law is not displaced and in his view the SEC covers many matters not covered by state law. For example, disclosures regarding compensation are not covered by Delaware law. He quoted from the Delaware Chancery Court decision in Walt Disney in which the Court explained that the common law cannot require adherence to aspirational best practices. He sees the SEC's role as helping to form those aspirational goals.

Artificial lines cannot be drawn easily between "corporate governance" and governing the corporation itself as an entity. He is sensitive to the states' right to address the internal affairs of corporations. He was instrumental in bringing to the Delaware Supreme Court the issue addressed in the CA, Inc. case. His Division as a whole takes seriously the role of Delaware law, and as an example of that he announced the recent addition to their Division's ranks of a respected scholar on Delaware corporate law, Professor Larry Hamermesh.

The Hon. J. Travis Laster, Vice Chancellor, Delaware Court of Chancery.

Although His Honor noted that he has only "been on the job for 42 days", he referred to the knowledge he acquired from spending his entire career before ascending to the bench, involved in Delaware corporate litigation on behalf of both shareholders and management.

He views Delaware and the SEC as having a collaborative and symbiotic relationship especially in the area of disclosure. The common law system is not a regulatory one, and the Delaware Courts can only rule on cases that come before them when a suit is filed.

An important part of the "Delaware culture" is that Delaware is neither "pro-management" nor "pro-shareholder". Rather Delaware is "pro-balance" and in the long run the investors benefit by allowing management to have the presumption of the Business Judgment Rule to maximize the value of the corporation. While in practice, His Honor represented bidders and targets, as well as investors and management, in almost equal measure, as do most firms in Delaware.

As a policy matter, Delaware takes a long term view, and if Delaware was not attractive to investors on an ongoing basis, it could reprise the role of New Jersey of over a century ago, and quickly lose the role that it now plays.

The beneficiaries of fiduciary duties are the shareholders. Delaware does not have a "constituency statute". Another aspect of Delaware is that the board can internalize risk. The board can rely on contract rights for bondholders and fulfill its fiduciary duties to shareholders.

In the Healthsouth case, the Delaware Chancery Court hit hard and early to address the breach of the duty of loyalty in that case. One area where the Delaware Courts cannot act as quickly is the compensation of executives. These issues are classically covered by the Business Judgment Rule, but as the recent Chancery decision in Citicorp demonstrated, Delaware has found situations where, based on existing law, excess compensation will be addressed.

What about federalization issues? Due to the Delaware culture, and the balanced approach it takes, Delaware has not made any drastic changes in policy. In addition, there are only 5 members of the Court of Chancery and then on appeal, only 5 members of the Delaware Supreme Court that make decisions on Delaware corporate law. The history of the savings and loan crisis shows that dozens of U.S. District Courts ruling on the same statute, and conflicting decisions of the U.S. Courts of Appeal on the same statutes, cause more confusion than consistency in the regulation of companies. In addition, unlike Federal judges, who are just are qualified, or moreso, Delaware judges have a more steady diet of corporate law issues, as compared to the more varied types of issues covered in the Federal Courts' docket.

The Delaware Constitution now allows the SEC to certify questions to the Delaware Supreme Court, which it has done. This is an example of collaboration.

The recent economic crisis can be explained more by massive debt and a federal policy that encouraged too much easy debt, as opposed to a problem with corporate governance.

Jill E. Fisch, Perry Golkin Professor of Law and Co-Director, Institute for Law and Economics, University of Pennsylvania Law School, Philadelphia, PA

The benefits of state law controlling this area include: incrementalism and experimenting. Also, there is a serious question about whether the federal proposals are better than the status quo.

There are studies, for example, that demonstrate that it does not always benefit shareholders to separate the CEO and Chairman. There is no statistical or empirical data to support the view that independent boards are necessarily "better" in terms of corporate performance. The NYSE has taken the view that independent boards are required. Delaware, however, has not mandated it in all cases, but takes it into account as a factor in the analysis. Though it impacts the standard of review, Delaware does not impose an independent board as a requirement.

As for executive compensation, the federal scheme pushed an option approach which turned out to be a source of many abuses. The Delaware approach is much more flexible, as befits a very nuanced and sensitive and multifaceted issue, as indicated in the Walt Disney case involving the compensation of Ovitz.

As for proxy access, for example, the recent efforts of the SEC indicate that the "one size fits all approach" is not the best solution.

The “Headquarters Test” or a Multifactor Approach? Hertz Corporation v. Friend, Argument Recap

The “Headquarters Test” or a Multifactor Approach?
Hertz Corporation v. Friend, Argument Recap

Wednesday, November 11th, 2009 3:43 pm | Anna Christensen | Print This Post

Email this • Share on Facebook • Share on LinkedIn • Digg This!

Below, Stanford Law School’s Sina Kian recaps yesterday’s oral argument in Hertz Corporation v. Friend. Sina’s earlier preview of the case is available here. Check the Hertz Corporation v. Friend (08-1107) SCOTUSwiki page for additional updates.

Yesterday the Court heard oral arguments in Hertz Corp. v. Friend. The case arose from a dispute over diversity jurisdiction, and the question presented was simple, or at least simple to state: how should courts determine a nationwide corporation’s “principal place of business”?

Justice Sotomayor—the most active Justice during this argument—set the tone by acknowledging that any rule was susceptible to reductio ad absurdum arguments: “the problem with every test is that you can find an exception that makes the application ridiculous.” Throughout the argument, several Justices voiced preliminary agreement that any rule should operate as a rebuttable presumption. But that left the question: what should be the default rule?

Arguing for Hertz Corp., Sri Srinivasan advocated for a headquarters test, which – as the name would suggest – locates the principal place of business in the State that hosts the corporation’s headquarters. Arguing for the respondents, Todd Schneider defended a multifactor test that focuses, in particular, on the primary location of a corporation’s “people and property.”

Srinivasan focused on the benefits of a simpler, more administrable test and emphasized the costs that would result if complex inquiries were necessary in each case to determine subject matter jurisdiction. This strategy could afford to settle for a draw on arguments about statutory construction and Congressional intent, thus allowing the Court to resort to a policy analysis and, presumably, the simplest rule.

Schneider, by contrast, generally focused on Congressional intent. The term “principal place of business” was plucked from the bankruptcy context, where most courts had employed a multifactor approach. The multifactor test is also more resistant to corporate efforts to game the system by strategically locating their headquarters, a general concern that explains why Section 1332 looks to the principal place of business in addition to the place of incorporation. This strategy placed administrability on the back burner to emphasize its portrayal of Hertz as advocating a change inconsistent with Congress’s intentions.

Both advocates’ narratives were pushed and peppered with primarily policy concerns. Justice Scalia was perhaps an exception to this focus: he stressed that if Congress wanted a multifactor approach, “it would have said, the principal State in which business is done.” Although each attorney received roughly the same number of comments and questions (approximately thirty-five for Hertz, compared with approximately thirty-seven for Friend), the Court seemed more anxious about the multifactor test. In particular, the primary concern about Hertz’s position – raised by Justice Sotomayor – dealt with how to define “headquarters,” whereas the consternation about a multifactor test ran a bit deeper. Justice Sotomayor noted confusion among the lower courts, while Justices Scalia and Ginsburg seemed dismayed that the multifactor test produces an outcome in which many national corporations are considered to be citizens of California just by virtue of the state’s size. The Chief Justice echoed this concern, noting that it would result in a quintessentially Washington corporation like Starbucks being deemed a citizen of California. Justice Ginsburg also emphasized that the respondents’ multifactor test is significantly more complex – which, as Justices Kennedy and Stevens noted, creates problems for smaller litigants.

Notably, the Court did not appear to have any concerns about its jurisdiction to adjudicate the matter under 28 U.S.C. §1453, a matter raised in petitioner’s brief.

Fiduciary Duty Argued at the U.S. Supreme Court

Fiduciary Duty Argued at the U.S. Supreme Court

• Email This
• Print
• Comments
• Trackbacks

Jones v. Harris is a case that was argued at the U.S. Supreme Court yesterday and is the focus of much scholarly commentary by corporate law professors around the blogosphere. We previously blogged here and here about the background of the case, which deals, among other things, with a federal statute that imposes a fiduciary duty on those who govern mutual funds. The main issue in this case is whether the management fees charged by particular mutual funds was excessive.

Professor Bainbridge offers insightful commentary here, citing to a Delaware Chancery Court case that addressed the related issue of executive compensation. Prof. William Birdthistle at The Conglomerate blog here offers a mini-symposium on the case and the various issues involved. Prof. Ribstein adds his scholarly analysis here.