In this day in age, you really can find anything on the Internet. That is the good news and the bad news for attorneys and clients alike. With the popularity of online web logs, or "blogs," on the rise, odds are that your client, the opposing party, or a witness in your case has posted material online. Whether that material is relevant depends upon the facts of the matter, as does the potential admissibility of such material at trial. Bloggers should beware, however, as courts across the country have held blog entries, and other user-generated material posted online, to be admissible at trial as an admission against interest by a party.
Take, for example, the case of B.M. v. D.M., 927 N.Y.S.2d 814 (N.Y. Sup. Ct. April 7, 2011), decided by the Supreme Court of New York, Richmond County in April 2011. The matter was a divorce action in which the wife sought an award of lifetime maintenance. In evaluating wife's maintenance claim, the court looked to various factors including the standard of living of the parties during the marriage; the income and property of the parties; the distribution of marital property; the duration of the marriage; the present and future earning capacity of both parties; and the ability of the party seeking maintenance to become self-supporting. Id. at *33. The crux of wife's argument in support of lifetime maintenance was that, as a result of a vehicle accident in which the couple had been involved during their marriage, she was entirely incapable of employment. She claimed that as a result of the accident and her resulting surgeries, she suffered from – and continued to suffer from – chronic back pain which prohibited her from maintaining a job. Id. at *7-*8.
While husband admitted that he and wife had been involved in a vehicle accident thirteen (13) years before, he maintained that wife was capable of working, at least in some capacity. In support of his argument, husband sought to have admitted a series of blog posts written by wife from 2006 through 2010, in which she boasted that she commuted into Manhattan several nights a week to belly dance. Id. at *8. The earliest blogs were written three to four years after wife's surgeries and described in detail her ability to dance day-after-day, for hours on end. Id. at *10-*11.
I belly danced the majority of the day away even though my legs are sore... Any who you all know what happens when I belly dance my day away I start to channel the other side and then I get to pass along what the angels are saying to this world of course with my own little dark personality added to it.
My belly dancing is the reason why I adore myself so much...that comes from hours of dancing and classes...When I start belly dancing as a career and when I dance my first performance on stage...
Id. at *10 (internal citations omitted).
While wife's counsel contended that the blog entries were not relevant and sought to keep them out of evidence, the court disagreed, noting: "[t]he statements made by Wife on her blog pages are relevant to Wife's testimony respecting the effect the Accident has had on her life and her resulting demand for non-durational maintenance. Any statement or act by the defendant, which is contrary to the defendant's interest, may be received as an admission when offered by the plaintiff." Id. at *13. The court went on to state that, "these admissions posted by Wife contradict her claims that she is unable to work due to injuries sustained in the Accident, rarely leaves [14] home, and socializes only once per month." Id. at *13-*14. In the end, the court concluded that wife failed to carry her burden of proof that she was entitled to an award of lifetime maintenance.
In a poetic turn of irony, while wife posted a multitude of blog entries describing her belly dancing, she refrained from posting any photographs. When asked why she did not post any pictures of herself dancing online, wife replied: [15] "Gotta be careful what goes on line pookies. The ex would love to fry me with that." Id. at *14. Little did she know, however, she already had "fried" her own case.
At the end of the day, the B.M. v. D.M. court concluded that the wife's blog entries constituted a statement against interest by a party and therefore were admissible when offered by her husband, the opposing party. Other courts have reached similar conclusions as that found in B.M. v. D.M. with respect to material posted online or on an individual's social networking profile. See Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. Sept. 21, 2010) (discovery of plaintiff's MySpace and Facebook accounts was material and relevant to plaintiff's claim that she could no longer participate in certain activities as a result of injuries sustained in an accident); Sgambelluri v. Recinos, 747 N.Y.S.2d 330 (N.Y. Sup. Ct. Sept. 4, 2002) (plaintiff's wedding video was relevant to claims that she could no longer engage in activities such as running or horseback riding, due to permanent injuries she suffered as a result of a motor vehicle accident); and Williams-Grant v. Wis. Bell, Inc., 2013 U.S. Dist. LEXIS 140657, *11, n. 1 (E.D. Wis. Sept. 30, 2013) (in addressing whether a blog entry constitutes hearsay, the court noted "the blog is titled 'miraclebootcamplinetteg,' which is Williams-Grant's first name, the blog states 'me and Lana' (Williams-Grant's daughter), and Williams-Grant admitted that the blog refers to her. Therefore, it is a party admission and not hearsay.").
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
