Bloggers Beware! The Admissibility of Blog Entries As Admissions Against Interest

by Butler Snow LLP
Contact

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.”).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Butler Snow LLP | Attorney Advertising

Written by:

Butler Snow LLP
Contact
more
less

Butler Snow LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.