Here is the basic fact pattern. You are handling a personal injury case in federal court for an injured plaintiff.
The defendant is a national trucking company with a large fleet and many employees. One of those employees negligently drove a company rig down Interstate 81 in Virginia, resulting in the crash that injured your client.
The wreck was a horrific wreck, and it was all caught on video. It was recorded on the trucking company's own dash camera mounted inside the cab of its rig.
A few days later, back at the trucking company headquarters out west, the company president and its safety director huddle over a computer screen watching the video from the dash camera. Another employee truck driver happens to walk by, gets curious, and asks, "can I see it?" "Sure," they respond, "take a look at this!"
The curious truck driver has a side hustle. He runs a "sub-Reddit" on the social networking site, Reddit, as well as a truck-driver oriented channel on YouTube. He routinely offers opinions and commentary about life as a long-haul truck driver. And he occasionally posts videos for educational purposes about what truckers should and should not do in various situations. The company is aware that he does this on the side.
Seeing this horrific crash on the office computer leads him to circle back and ask the safety director if he could have a copy of the footage for use on his social media channels for educational purposes. The safety director says, “sure, no problem, I’ll send it to you.”
A few days later, the employee posts the dash camera footage with the caption, "What Not to Do as a Truck Driver." In a separate post on the trucker's YouTube channel, he posts the footage again and offers commentary about what the truck driver did wrong in causing the wreck.
The gist of these postings is that the company’s truck driver messed up, which was the opposite of the trucking company’s legal position on the wreck.
This exact scenario played out in a case we handled in the Western District of Virginia last year.
As part of our investigation, we did various online searches about the events leading to the crash. We were not necessarily looking for materials specifically related to our crash. We were actually looking for information to help us understand what a truck driver should do in this particular situation.
And what popped up? You guessed it. The defendant trucking company’s own employee offering damaging commentary on his sub-Reddit and YouTube about his fellow employee's conduct is what popped up.
We immediately recognized the videos as excerpts from the defendants’ dash camera footage. We assumed the person who posted the videos and offered the commentary was likely another truck driver for the same defendant company. He did a pretty good job of hiding his true identity and employer on his social media accounts, but the evidence was there suggesting this is who he was.
The negligence of the defendant truck driver was hotly contested in the case. Had the case been tried, I would have had serious doubts that the driver would have been found negligent by the jury. So, having evidence from another driver at the same company that what the defendant truck driver did was wrong would be helpful to our case.
We set out to discover the sub-Reddit poster’s identity. Sure enough, after some motions practice and some depositions, the company acknowledged he was one of their employees and provided his contact information (he had since then left the employ of the defendant). The company also had to acknowledge that he got the video from its very own safety director, who regrettably gave him permission to post the video on Reddit and YouTube.
The defendant trucking company moved in limine to exclude the employee’s social media postings and commentary. They raised various arguments from relevance to hearsay as well as some others.
We never got a ruling on these objections from the federal district judge. The case settled shortly after the depositions were taken.
It is the hearsay argument I want to focus on because it’s an interesting question.
Can a huge trucking company have an obscure employee’s postings on social media held against it?
I think the answer is yes, so long as the statements are about a matter within the scope of the individual’s employment.
Federal Rule of Evidence 801(d)(2)(D) provides that a statement “offered against an opposing party [that] was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed” is simply not hearsay.
Such statements “can be introduced without the testimony of any witness.” Knox Energy, LLC v. Gasco Drilling, Inc., 2016 U.S. Dist. LEXIS 152938 (W.D. Va. Nov. 3, 2016).
“The concern of Rule 801(d)(2)(D) is not whether the employee was carrying out his employer’s wishes or whether the employee’s statement was authorized. Rather the court must determine whether the subject matter and circumstances of the out-of-court statement demonstrate that it was about a matter within the scope of employment.” United States v. McCabe, 103 F.4th 259, 276 (4th Cir. 2024) (quoting US v. Poulin, 461 F. App’x 272, 282 (4th Cir. 2012)).
In our case, we contended that a truck driver who is posting about what a truck driver should do in a specific circumstance is posting about a topic that is within the scope of their employment. Therefore, the statement ought to have been admissible as an admission of a party opponent -- the trucking company defendant. I also think the fact that the company's own safety director gave the video to him and expressly gave him permission to post the video online for educational purposes likely would have tipped the scales in our favor. That shows knowledge and assent by the company, which I think matters even though Rule 801 doesn't require such a showing.
But if the facts were a little different, I can see how a federal judge might struggle to hang the statements of a low-level employee made on a Reddit thread around the neck of his or her employer notwithstanding that they relate to matters "within the scope of their employment." One argument made by the trucking company was that the postings were made on the employee's personal accounts in his personal time, not while working. Again, I acknowledge the appeal of such arguments but that's not what Rule 801(d) says. The rule doesn't require an employee to be on the clock. It is more directed at whether the subject matter upon which the employee speaks touches upon the same subject matter as their employment.
One argument I’ve seen raised by defendants is that the statement of the employee is an impermissible “lay opinion.” However, the Advisory Committee notes to Rule 801 indicate that statements of opinion can, nonetheless, be admitted as party admissions. In our case, the truck driver’s statements – although consisting of opinions – were nonetheless admissible as admissions of his employer under Rule 801, we argued. See Scott v. Full House Mktg., 2024 U.S. Dist. LEXIS 36828, *33-35 (M.D.N.C. Mar. 4, 2024).
As I mentioned, we never got a ruling on this issue, but it is an interesting one that I hope comes up again. I’d like to hear from you if you’ve got this issue in a case, or if you’ve obtained a ruling on this issue or a similar scenario in one of your cases.
