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Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
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LinkedIn Authentication: Merely Downloading Ostensible Social Media Profile and Offering It, without More, Fails to Authenticate It, Which Also Renders Its Contents Hearsay

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Lindschei v. Natus Med. Inc., 2015 U.S. Dist. LEXIS 40255 (N.D. Ga. Mar. 30, 2015):

Plaintiffs [*14]  also object to the Court's consideration of exhibits attached to the declarations: a document purporting to be Plaintiff Blades's resume from Indeed.com (attached as Exhibit C to Rossi's declaration amd Exhibit A to White's declaration) and a document purporting to be a Linkedln profile for Plaintiff Linscheid (attached as Exhibit B to Rossi's declaration). Rossi testifies that she located these documents on the Internet and that she provided the Linkedln profile to White, something White confirms in her own declaration. Plaintiffs argue that these third-party documents are not properly authenticated. See Fed. R. Evid. 901 (evidence must be authenticated through "evidence sufficient to support a finding that the item is what the proponent claims it is"). The Court agrees.

To be admissible, social media and similar online postings must be authenticated under Rule 901 of the Federal Rules of Evidence or must meet Rule 902's requirements for self-authenticating business records, which requires "a certification of the [records] custodian." United States v. Hassan, 742 F.3d 104 (2014); United States v. Vayner, 769 F.3d 125, 127 (2d Cir. 2014) (reversing admission of social-media profile that was not properly authenticated); Randazza v. Cox, No. 2:12-cv-2040, 2014 WL 1407378, at *4 (D. Nev. Apr. 10, 2014). As Natus has made no effort to authenticate the two exhibits at issue, the Court concludes they [*15]  are inadmissible. The exhibits also constitute inadmissible hearsay. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999) (court may not rely on hearsay at summary judgment). Natus attempts to rely on the exhibits for the truth of the matter asserted therein--i.e., to prove the nature of Linscheid's and Blades's job duties at Natus--without demonstrating that the rule against hearsay does not apply or that an exception to that rule is applicable.7 Therefore, the Court will not consider these exhibits for purposes of ruling on Natus's motion.

7   Pursuant to Rule 801(d)(2)(A) of the Federal Rules of Evidence, a party's own social-media posting may, under appropriate circumstances, constitute non-hearsay, but the proponent of such evidence must "show by a preponderance of the evidence that the opposing party had made the statement," which Natus has not done in this case. United States v. Brinson, 772 F.3d 1314, 1320 (10th Cir. 2014).

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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