As practitioners representing injured victims, we constantly remind our clients of the ever-present perils of surveillance. Defendant companies and insurers will readily spend ten to thirty thousand dollars in hopes of getting 10 seconds of video footage showing the injured plaintiff doing something that “he could not possibly do if he was truly as injured as he says.” Historically, this type of video footage involves changing a tire; carrying groceries; playing sports; washing a car; mowing a lawn; gardening; working out or exercising; and dancing; getting into, and out of, a car with ease. Notably, all of these type surveillance issues usually occur outside of the plaintiff’s home.

With the recent explosion of social media¹ sites, practitioners are now faced with an open window into the inside life of the injured plaintiff. The defendant is no longer faced with the issue of trespass in order to try to catch the plaintiff in a compromising situation, does not have to commit thousands of dollars to pay an investigator to tail the plaintiff for a video clip or photo that is contradictory to the plaintiff’s position, and is not faced with issues of trying to resist the plaintiff’s counsel’s explanation of what a photo should be interpreted to mean. Now, with some brief strokes on a keyboard, the plaintiff can create an electronic trail of chats, tweets, re-tweets, webcams, chain e-mails and all the other electronic methods of communication that are forever memorialized in the memory storage of social networking sites.

However, the plaintiff’s life is not the only potentially open book. The defendant is just as vulnerable. For the practitioner that invests the time and the money into developing an online social media forensic investigation as part of his or her “check list” in prosecuting his/her cases, they will be (1) way ahead in this developing area and (2) pleasingly surprised with the results of this developing component of discovery.

This article with help you protect your clients, but it will also provide a quick reference to assist you in using social media as one of the weapons to positively resolve your cases.

Instructing Your Plaintiff
As you already do instruct your plaintiff about surveillance, the modern day practitioner must instruct the plaintiff that all of their social networking will be thoroughly reviewed by the defense. This includes the actual plaintiff’s posts and sites as well as the sites and posts of the plaintiff’s spouse, children and may even include the friends within the plaintiff’s social network.

The best approach is to instruct the plaintiff, and the plaintiff’s family, to, if possible, take down all their social online accounts and keep them down during the pendency of the litigation. For younger plaintiffs, such a concept might be unthinkable but they must understand almost every post, no matter how benign, can be fuel for fodder for the defense.

In fact, for the blue collar plaintiff, even if the posts are otherwise meaningless, they could demonstrate a capacity to operate a computer sufficiently to be able to perform tasks normally associated with the light to sedentary vocational work level. Practitioners know full well that the income levels associated with the light to sedentary job levels have an income level usually sufficient to negate any loss of future earning capacity claim due to an accident. Therefore, preaching “Twitter abstinence” should be stressed.

The purpose of the take down request is not to hide anything as we are officers of the court and ultimately justice should be about truth. However, the defense will twist any of the plaintiff’s statements and that requires an explanation during trial about what was really meant in the post. I call these little trial issues skirmishes; the fewer skirmishes you have, the better chance you have of presenting and winning your war.

Review Your Plaintiff’s Online Presence
Review of all the plaintiff’s pre-injury posts by counsel is essential. Once you are retained, as part of your interview of the plaintiff, you should make a list of all sites that are involved and review all of his/her posts as well as all the plaintiff’s family’s posts. Remember that the duty not to spoliate evidence is a duty that is imposed upon both the plaintiff and the defendant. If, upon your review, you locate online data which is injurious, you should take down the post as long as you preserve a complete copy in case you are compelled to produce the item or to produce it in camera.² However, taking the post down will limit future comments to the post which could further exacerbate an already uncomfortable situation.

I do not mean to be pessimistic here, but no matter how strongly you emphasize to your plaintiffs and their family to absolutely refrain from posting, they may not listen to you. Younger plaintiffs, i.e., those who are approximately 30 years old and younger, grew up texting, instant messaging, and blogging. They might have difficulty stopping. In these instances, you can only do so much and, unfortunately, the result can be a very long day at mediation or, worse yet, a jury verdict that is negative for your client.

Discovery
As you are aware, discovery must be relevant. The definition of relevance, at the discovery phase, is found in Federal Rules of Civil Procedure 26(b) (1), which states:

(b) Discovery Scope and Limits
(1) Scope in General
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Discovery to the Defendant

About the Defendant 
Before you send discovery to the defendant, you need to analyze: Is it worth it? Once you do send discovery, more than likely, you are going to get the same requests sent back to your plaintiff. If you have satisfied yourself that your plaintiff has nothing out there that is problematic for their case, then propound discovery at will to the defendant. Also, in light of this, it is recommended that the below type discovery not be included in your standard “form” type discovery.

The defendant, be it a legal entity or person, more than likely has  social network accounts as well.³ A thorough search of all the popular social networks for the defendant is essential.⁴ After an exhaustive search, discovery should be directed to the defendant including:

1. A list of all email addresses that the defendant uses
2. A name list of all social networks and video sharing sites that the defendant uses or has utilized in the past, together with their member names
3. Production of all videos that have been “uploaded” online
4. A copy of all posts made by the defendant, including comments and replies to other posts
5. Production of all podcasts involving the defendant
6. If the defendant has a webcam, then a list of all site addresses where the webcam has ever had a live feed
7. All posted online articles authored, either in whole or in part, by the defendant.

Once you propound discovery, the defendant may take down any posts, videos, webcam feeds, and articles. Therefore you need to do a thorough search first and, if you locate anything, you must (a) print it, if possible, to preserve it (make sure that the web address is displayed on the printed document) or (b) in the case of podcasts or videos, you must download it to preserve it.

Save all online items. With the exception of videos and podcasts, if for some reason, you cannot print the item, you can take a screenshot of it using a screenshot software program.⁵ 

If you did not make a copy and cannot find the particular item any longer because the defendant took it down, you still have, at least two very good options:

a. Archive.org, “The Internet Archive,” maintains previous sites as they existed in a particular moment in time. Obviously, not every page can be maintained but you will be pleasantly surprised on what is available on this site. It covers text posts, pictures, videos, podcasts and many other items; and
b. Depending on how contemporaneous the take down was to when you are trying to locate the page, you can do a Google or BING search for the page utilizing search terms that would normally “bring that page up” in a search; if the page comes up, instead of clicking on the actual link, click on the “cached page” and that may show you the older version of the page. If this method is successful, you must memorialize this page as it will eventually disappear.

In some instances, a thorough search will reveal someone but, because of their privacy settings, you cannot actually review their account because you are not their friend or within their network. This raises the ethical question of whether you can send a friend request to them once they are represented by counsel. Thus far, this limited question has not been specifically addressed by any court. ABA Model Rules of Professional Conduct, Rule 4.2 Communication with Person Represented by Counsel, reads as follows:
 
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Since this paper is general in nature and the ethics rules vary greatly from state to state, it is recommended that you satisfy yourself of the ethics rules governing your behavior on this topic in your state. If you do believe that it is permissible to request to become a friend, once you are a friend, it is highly recommended that you simply monitor the account and not actively participate in any discussions.⁶

Should you be faced with a defendant that has removed a post, removed a series of posts, or has otherwise taken down data that was once readily visible, you may want to consider a spoliation issue. This would be in a rare situation where you only have part of the post, e.g., such as a video frame but not the entire video; the defendant did not maintain a full copy; the post cannot be retrieved from any online method; the social network site does not have it in their storage facility; and, of course, all the other elements that are attendant to spoliation are present. Though spoliation issues regarding e-Discovery are ever present in patent, copyright, and business/commercial litigation, there is a void of case law involving personal injury spoliation cases with social networking. A wonderful online eDiscovery Blog is an excellent resource on these rapidly developing topics.

Finally, if you do find that the defendant has either initiated a blog entry, or is a member of a particular online site, make sure to subscribe to the RSS Feed or to Subscribe to receive email notifications of additional postings by the particular member. This will enable you to be notified if and when your defendant becomes socially active.

About the Plaintiff
The same basic discovery as “1” through “7” above should also be sent to the defendant but it should be sent seeking information about your plaintiff and his/her family. Though there is no case yet on point, arguably the defense will take the position that this type discovery is akin to surveillance footage and does not need to be produced prior to the plaintiff’s deposition. Many courts have held that, not only may the defendant delay production of surveillance footage until after the plaintiff's deposition, but also that the defendant need not disclose the existence of the videotapes until after the deposition.⁷

Though some courts have also held that video footage, should be considered as a statement for purposes of admissibility; clearly, online posts should be considered statements and should be produced prior to the plaintiff’s deposition.⁸ If the defendant’s response to discovery requests to produce these items is less than unequivocally clear, it is advisable to request a supplementation to clarify the response to flush out if defense counsel is, in fact, holding back “online” posts on the same basis as they regularly attempt to do with surveillance footage.

Discovery to a Third Party
It is anticipated that the defense counsel will object to social media discovery on various grounds. One ground would simply be that the defendant does not keep a record of any such posts. The Federal Rules of Civil Procedure contemplated electronic discovery issues and places the burden of proving the sought information is not reasonably accessible because of undue burden or costs on the party that the discovery was propounded upon Federal Rules of Civil Procedure 26 (b) (2) (b):

(b) Discovery Scope and Limits.

…

(2) Limitations on Frequency and Extent.

(B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. [emphasis supplied].

Thus, it may very well be likely that the practitioner will need to issue a subpoena under the Business Records Exception⁹ to the hearsay rule to the particular social networks if they are within the subpoena range of your court case.¹⁰ The corporate addresses that you can serve the Custodian of Records for some of the popular social networks are as follows:

Facebook
164 Hamilton
Palo Alto, California 94301
Facebook’s Subpoena Policy

LinkedIn Corporation
ATTN: General Counsel
2029 Stierlin Court
Mountain View, California 94043
LinkedIn’s Privacy Policy

Twitter, Inc.
539 Bryant Street, Suite 402
San Francisco, California 94107
Twitter’s Terms of Service

Tagged.com
110 Pacific Ave Mall
Box #117
San Francisco, California 94111
Tagged.com’s Document Retention Policy

YouTube, LLC
901 Cherry Ave.
San Bruno, California 94066
YouTube’s Privacy Policy also visit Google’s Privacy Policy

If the social network provider is outside of the subpoena range of your court case, then you may need to file a request for the court to issue an order compelling the social network provider to produce the documents. This will require a showing of good cause under Federal Rules of Civil Procedure 26(b)(2)(b). Obviously, at this stage, if you have any evidence the defendant has engaged in social media and that evidence is relevant to your plaintiff’s claims or the defendant’s defenses, these documents should be incorporated in your motion. Without a prima facie showing that your request is something other than a fishing expedition, you may not succeed in getting the court to grant this requested discovery.

The Federal Rules of Civil Procedure were amended in 2006 to cover the subpoena of electronic information.

FRCP Rule 45 Subpoena.
(d) Duties in Responding to Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically stored information:
(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

Review All Experts’ Social Media
With expert witnesses, the chances are even greater that social media exists than with lay individuals. There are two main purposes of social media and they are not mutually exclusive.

The first reason is the obvious; it provides a vehicle to express oneself to the world instantaneously and without any expense. It is this type of social media that usually is the type the plaintiff needs to be protected from committing.

The second reason for social media usage is much more technical; simply put, it is for the purpose of commercial marketing. In the commercial marketing social media arena, not only do social media provide a medium for explaining why one’s product or service is better than another but the actual link created by the social media post serves to potentially drive visitor traffic to the poster’s main Web site. Since the internet is extremely competitive, and becomes more so on a daily basis, the more social media posting one creates, the greater the chance that his or her Web site will occupy what I call the most expensive piece of property on the earth for a desired search term, i.e., the first page of Google. For this reason, it is inevitable that your experts and the defendant’s experts will be involved in social networking. More than likely, you will find an expert commenting in forums.¹¹ Special attention should be addressed to these Web sites. In case you believe the defendant’s expert may be posting anonymously, the same type of discovery as outlined above should be sent to the defendant to enable a thorough internet search. It would look like this:

a. Request a list of all e-mail addresses utilized by the defendant’s experts
b. Request a name list of all social networks and video sharing sites that the defendant’s
 experts have posted in/on in the past, together with the experts’ member names
c. Request the production of all videos that have been uploaded online by the designated
 expert
d. Request the production of all podcasts involving the expert
e. If the expert has ever utilized a webcam, then a list of all site addresses where the
 webcam has ever had a live feed
f. Request all posted online articles authored, either in whole or in part, by the expert
g. Request a list of all URLs that the expert owns or in which the expert maintains an
 economic interest.

The expert’s posts may provide excellent cross-examination material and, unless required to produce the item in responding to an appropriate request, one would want to “lay behind the log” with the fruits of your research if given the opportunity to do so.

The Federal Rues of Civil Procedure dictate what must be produced, as a matter of course, regarding your experts without the need of the defendant to send the plaintiff discovery; however, they do not contemplate the type of issues that we are discussing in this article.¹² Therefore, to know what the defense counsel has in its possession as to your experts, it is recommended that you incorporate into your form discovery the following language:

Request any and all online posts, online articles, online videos, online podcasts and any and all other electronic communications authored, either in whole or in part, by EXPERT’S NAME or which DEFENDANT’S NAME contends were authored and/or adopted by EXPERT’S NAME.

Admissibility at Trial

Relevance
As you are fully aware, the definition of relevant for admissibility of evidence at trial is much narrower than at the discovery phase:

Rule 401. Definition of “Relevant Evidence”:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Authentication
Another important issue governing admissibility of social media evidence is authentication. Put plainly, how do you prove that the online post is the work of the defendant or a designated agent of the defendant? Obviously with videos or photographs, a “post” actually depicting the evidence is much easier to authenticate though you must still be able to prove the dates that the post was made. However, if the defendant denies that the online Member Name is, in fact, the defendant, it is essential that you connect the defendant to that Member Name. In these instances, getting the entire set of records associated with that Member Name is essential to establish the nexus relationship.

In the Court of Appeals of Maryland, the court heard Independent Newspapers, Inc. v Brodie.¹³ This defamation case dealt with statements made in instant messaging, as well as an online blog and chartroom (also known as a discussion forum) by a person using a username or pseudonym. The discovery order filed compelled the identification of five anonymous defendants, all using usernames, such as “CorsicaRiver” and “Suze.”

This case set forth a discovery rule that many courts follow today. “A court should only order a non-party, Internet service provider to provide information concerning the identity of a subscriber (1) when the court is satisfied by the pleadings or evidence supplied to that court (2) that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed and (3) the subpoenaed identity information is centrally needed to advance that claim.” The Brodie case involved the burning of defendant’s house which was discussed by the five anonymous users. The information they provided on the forum indicated their knowledge of the fire. The Court therefore allowed discovery to the forum and the identity of the users as it was probative and relevant to the case. Finally, as to podcasts and videos wherein the defendant is heard in the video but not actually depicted, if the defendant denies that it is their voice, Federal Rules of Evidence 901 (b)(5) allows authentication of a voice by lay opinion.¹⁴ 

Statement by Party Opponent

In most instances, the practitioner will be attempting to introduce the “posts” of the defendant as an Admission by party-opponent under Federal Rules of Evidence 801 (d) (2). Rule 801(d) literally removes certain out of court statements, made by the defendant, from the hearsay rule:

(d) Statements which are not hearsay.
A statement is not hearsay if—

…

(2) Admission by party-opponent. The statement is offered against a party and is
(A) The party’s own statement, in either an individual or a representative capacity or
(B) A statement of which the party has manifested an adoption or belief in its truth, or
(C) A statement by a person authorized by the party to make a statement concerning the subject.

For example, Rule 801 (d)(2)(A) would make admissible actual posts that were initiated by the Party-Opponent; but Rule 801 (d)(2)(B) would also make admissible a comment by a Party-Opponent to someone else’s post if they “adopted” the original post.  Certainly, for an active “online” poster, during the pendency of litigation that might span twelve to thirty-six months, this would provide a great opportunity to find some little “gold nuggets” as your lawsuit traverses its way to the courthouse steps.

The Lorraine Case
In Lorraine v. Markel American Insurance Company, the court was faced with the enforcement of a private arbitrator’s award through a summary judgment and a cross motion for summary judgment.¹⁵ After reviewing whether either party had met the burden of Federal Rule of Civil Procedure 56 as to summary judgment evidence, the court recognized that there were many issues involving the usage of electronic discovery that were never addressed by any other court. Chief Judge Grimm took the opportunity, though totally unnecessary to do so, to address the multitude of evidentiary questions that arise with electronic discovery and evidence. The Lorraine opinion represents a thorough, rule by rule, analysis of the discovery issues as well as the evidentiary issues raised in this paper as well as many others. A reading of the Lorraine case is recommended as I am sure it will serve as a resource for other courts as they tangle with these problems in the upcoming years.

Summary
Most decisions regarding the discovery of social media are either criminal court decisions or involving patent and copyright issues. This area of discovery, in personal injury practice, is clearly embryonic. To be sure, there will be appellate decisions throughout the states and federal court system in the next five years which will hopefully yield some guidance on some of the issues raised in this paper. Whatever happens, the realities of social media, as a double-edged sword, in representing injured plaintiffs are here to stay.

Finally, as firms begin to realize the importance of this type of internet monitoring, they will undoubtedly establish a section within the firm that performs this research on their cases on a daily basis. Obviously smaller firms cannot afford to establish this type of forensic online monitoring and, just as we see with other out-sourcing forensic work, we will undoubtedly see companies sprouting up offering these types of services as well.

______________________________________________

¹ Wikipedia explains that “Social media can take many different forms, including Internet forums, weblogs, social blogs, wikis, podcasts, pictures, video, rating and bookmarking. Technologies include: blogs, picture-sharing, vlogs, wall-postings, email, instant messaging, music-sharing, crowdsourcing, and voice over IP, to name a few.” A governmental definition of “social networking sites” is found in the Michigan Department of Technology which states they “[A]re websites that allow users to build on-line profiles, share information, pictures, blog entries, music clips, etc.”
² You are urged to make an exact duplicate. For example, if color is involved, making a black & white copy could be the basis of a spoliation issue if the colors become relevant.
³ Comscore, Inc., a company that studies growth in social media usage globally, indicates that, as of June, 2007, there were well over 200 million unique visitors to social network sites and the data was trending to 2.73 million unique visitors per month just on MySpace, Facebook, Hi5, Friendster, Orkut, Bebo, and Tagged.
⁴ The following list, though certainly not exhaustive, of social network search sites are a good starting point: Twitter, FaceBook , YouTube , MySpace , LinkedIn , Tagged, My Yahoo, Flickr, MyMSN, Flixster, Live Journal, and Classmates.com. With some of the Social Network and video upload sites, you may have to actually become a member to search for other members. Finally, if you know the defendant’s email addresses, you can also search for them utilizing their email address.
⁵ Though there are many popular screenshot programs available, I recommend SnagIt© by TechSmith. In the case of videos, a screenshot will only take a picture of the computer screen when the video is static and will only show just one frame. Some video sites allow you to download the video and some do not.
⁶ The writer is expressing no determination on what constitutes ethical behavior in any particular state. Before you send a “friend” request, it is recommended that you professionally satisfy yourself that it is permissible behavior in your practice area. Here are the comments to ABA Model Rule 4.2 which provide a little guidance. The Oregon Bar has issued Formal Opinion Number 2005-164 in August 2005 providing its interpretation of what would be permissible and what would not be acceptable lawyer’s behavior. It is also recommended that you read Attorney Advice to Car Accident Victims: Control Your Facebook, Twitter, Blogging … written by Steven Gursten of Gursten, Koltonow, Gursten, Christensen & Raitt, PC.
⁷ See, e.g., Ward v. CSX Transp., Inc., 161 F.R.D. 38, 40-41 (E.D.N.C. 1995); Smith v. CSX Transp., Inc., 29 Fed. R. Serv. 3d 1439, 1442 (E.D.N.C. 1994); Martin v. Long Island R.R. Co., 63 F.R.D. 53, 55 (E.D.N.Y. 1974); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 151 (E.D. Pa. 1973).
⁸ FRCP R. 26 (b)(3)(C) states:
(C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
(i) a written statement that the person has signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording--or a transcription of it--that recites substantially verbatim the person's oral statement.
⁹ FRE Rule 803 (6): Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
¹⁰ FRCP R. 45(b) (2) reads:
(2) Service in the United States.
Subject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place:
(A) within the district of the issuing court;
(B) outside that district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection;
(C) within the state of the issuing court if a state statute or court rule allows service at that place of a subpoena issued by a state court of general jurisdiction sitting in the place specified for the deposition, hearing, trial, production, or inspection; or
(D) that the court authorizes on motion and for good cause, if a federal statute so provides.
¹¹ An Internet forum, or message board, is an online discussion site. It originated as the modern equivalent of a traditional bulletin board, and a technological evolution of the dialup bulletin board system. From a technological standpoint, forums or boards are web applications managing user-generated content.
¹² Rule 26. Duty to Disclose; General Provisions Governing Discovery
(a) Required Disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
¹³ FRE 901 (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
¹⁴ 966 A.2d 432 (Md. 2009). 
¹⁵ 241 F.R.D. 534 (D. Md. 2007).

Newsletter Home »