YouTube Admissibility — Content Posted on a Party’s YouTube Account by the Party Is Admissible as an Admission — Party Has No Reasonable Expectation of Privacy as to Posted Material
Stotler v. Alvarado, 2012 Del. Super. LEXIS 1098 (Del. Super. Nov. 7, 2012):
D. Plaintiff's Motion to Preclude Defendants' Use of Videos and Commentary Uploaded to Plaintiff's YouTube Account
Lastly, Plaintiff filed a motion seeking to preclude Defendants' use of material from Plaintiff's own YouTube account, including both videos and comments uploaded to the account by the Plaintiff himself. Plaintiff argues that he will be [*14] prejudiced by the introduction of this material because Defendants did not notify him of their intention to use this evidence until October 4, 2012, one day before the deadline set for discovery. Given that trial is scheduled to begin on November 13, 2012, Plaintiff contends that he has insufficient time to review the content of the nearly 500 videos uploaded to his account. Plaintiff also makes a convoluted argument that this Internet content is inadmissible because he has a constitutional right to privacy in the material posted to his YouTube account.
In their responses, Defendants contend that those videos uploaded by Mr. Stotler qualify as an admission of a party-opponent, and thus are admissible as both substantive and impeachment evidence pursuant to D.R.E. 801(d)(2)(A).18 Defendants also dismiss Plaintiff's constitutional argument by contending that he cannot have a legitimate expectation of privacy in material he voluntarily disseminates on the Internet.19
18 Admissions by a party-opponent fall within an exception to the general prohibition against hearsay, and are thus admissible. See D.R.E. 801(c) ("'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial [*15] or hearing, offered in evidence to prove the truth of the matter asserted"); D.R.E. 801(d)(2)(A) ("A statement is not hearsay [and is an admission] if ... [t]he statement is offered against a party and is his own statement ....").
19 Plaintiff appears to allege, rather curiously, that the admission of this Internet material will violate his constitutionally protected privacy rights, but does not identify which amendments to either the federal or Delaware constitutions that are implicated or violated. To the extent that Plaintiff relies on the right of privacy guaranteed by the Fourth Amendment of the federal constitution, that right is not implicated unless there is a governmental intrusion. See Katz v. United States, 389 U.S. 347, 350 (1967) ("[T]he Fourth Amendment cannot be translated into a general constitutional 'right to privacy.'"). Likewise, to the extent that Plaintiff relies on the privacy guarantees carved from the Due Process Clause of the Fourteenth Amendment, the Due Process Clause does not apply to any harm inflicted by purely private actors. See, e.g., May v. Franklin Cnty. Comm'rs, 437 F.3d 579, 583 (6th Cir. 2006). Thus, even assuming Plaintiff's motion alleged a constitutional violation, there is no violation implicated by the proposed admission of the material from Mr. Stotler's YouTube account.
With respect to this in limine request, Defendants have yet to identify the precise material from Mr. Stotler's YouTube [*16] account that they intend to introduce at trial. Consequently, the Court is not certain precisely what evidence Plaintiff's counsel is seeking to exclude at trial, and therefore the Court prefers to defer ruling on Plaintiff's in limine request until trial so that questions of foundation, relevancy, and prejudice can be resolved in context.20 To the extent that any video or comment uploaded to Plaintiff's YouTube account qualifies as an admission by a party-opponent pursuant to D.R.E. 801(d)(2)(A), it is admissible as both substantive and impeachment evidence.
20 See Brock v. State, 746 A.2d 275 (Del. 2000) (Evidentiary rulings on the admissibility of evidence are within the Superior Court's discretion); United States v. Nolan, 523 F.Supp 1235, 1239 (W.D. Pa. 1981) ("Because determinations of relevance often hinge on the context of the offer, this Court prefers to consider these matters during trial rather than in advance.").
To expedite the resolution of this issue, the Court orders Defendants to identify those portions of Plaintiff's YouTube account that it may wish to introduce into evidence at trial. Furthermore, the parties are urged to reach an agreement on the use of the Internet content. If these negotiations fail to resolve all of the disagreements between the parties with respect [*17] to this content, the Court invites Plaintiff to renew his objections at trial. Plaintiff's motion in limine to preclude Defendants's use of material from his YouTube account is denied.
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