The title “Dancing on the Table at Senor Frog’s” sounded pretty good a few months ago, but when I went looking for a social media example of the title, I realized I was in danger of looking like a sexist jackass. So instead I decided to embrace a profane parody of the mayor of Chicago.
Participation in social media is pervasive.And so is the need to consider how to admit—and block the admission of—the content of social media sites.
Whenever social media content is offered as evidence, either at trial or in summary judgment, the five evidentiary hurdles must be considered.Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible.
In addition to detailing the requirements for admitting electronic evidence under the Federal Rules of Evidence, Lorraine offers an excellent primer on some of the technology and document management issues involved. This presentation focuses on authenticating social media content, touching briefly on the other four threshold requirements for admissibility.
Is the social media content relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be)?Given the pervasiveness of social media, relevance may be limited only by your imagination. Here is a statement by my buddy Hilary regarding what she was doing, where she was doing, and when—basic information that could be relevant in a multitude of actions, all wrapped up in a nice little evidentiary package by Hilary’s Facebook post. Take screenshots to preserve social media evidence during the course of litigation. Include date and time information in the screenshot whenever it is offered by the social media site. Consider using staff or a hired investigator to collect the screenshots and produce an affidavit describing the who, what, when, and where of the collection process. For large or complicated ESI captures, consider retaining an e-discovery vendor.
Facebook posts can be relevant in sexual harassment cases. Targonski v. Oak Ridge, No. 3:11-CV-269, 2012 WL 2930813, at *1, 8 (E.D. Tenn. July 18, 2012) (in a hostile environment sexual harassment case, court considered plaintiff’s Facebook posts regarding her sexual conduct). Defendant’s use of a Twitter account to distribute disparaging information figured prominently in a company’s trademark infringement complaint. Amerigas Propane v. Opinion d/b/a PissedConsumer.com, No. 12-713, 2012 WL 2327788, at *1 (E.D. Penn. June 19, 2012).Facebook photographs of a workers compensation claimant “drinking and partying” were admissible to support termination of his workers compensation benefits. Clement v. Johnson’s Warehouse Showroom, 2012 Ark. App. 17, at *9 (Ark. Ct. App. Jan. 4, 2012) (applying lax evidentiary standard under Arkansas’s worker’s compensation statutes).
If relevant under Rule 401, is the social media content authentic as required by Rule 901(a) (can the proponent show that the social media content is what it purports to be)?This is where the rubber meets the road. This is where you will need to be the most diligent and creative. “Obviously, there is no ‘one size fits all’ approach that can be taken when authenticating electronic evidence, in part because technology changes so rapidly that it is often new to many judges.” Lorraine, 241 F.R.D. at 544 (internal quotations and citations omitted).
If uncooperative witnesses or evasive discovery responses make it impossible to directly authenticate social media content, you need to combine a variety of circumstantial evidence to make a prima facie showing that the content is authentic—and to defend against rebuttal arguments that it is not authentic.
In Campbell v. State, 382 S.W.3d 545 (Tex. App. 2012), the court found the authenticity of Facebook messages was supported by “the unique speech pattern presented in the messages,” which was “consistent with the speech pattern that [defendant], a native of Jamaica, used in testifying at trial,” and by references in the messages to “the incident and potential charges, which at the time the messages were sent, few people would have known about.” Id. at 551-552.In Tienda v. State, 358 S.W.3d 633, 642 (Tex. Crim. App. 2012), the court found “the internal content of the MySpace postings—photographs, comments, and music,” when “taken as a whole with all of the individual, particular details considered in combination,” supported “a finding that the MySpace pages belonged to the appellant and that he created and maintained them.” Id. at 642, 645.In Griffin v. State, 19 A.3d 415, 427-28 (Md. 2011), the court stated the authenticity of social media content can be proven by a forensic search of the internet history and hard drive of the person who allegedly created the social media profile, and by information obtained directly from the social networking websites that “links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.”
The technical details of social media sites may be unfamiliar to judges (and the trier of fact), so treatise references or expert testimony may be necessary to lay a foundation regarding the technical ins and outs of what is possible, and what information is available.
“The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the ‘snitches get stitches’ language.” Griffin v. State, 19 A.3d 415, 424 (2011) (holding trial court committed reversible error). But see People v. Valdez, 201 Cal. App. 4th 1429, 1434 (Cal. App. 4th Dist. 2011), review denied (Mar. 28, 2012) (upholding admission of content from defendant’s MySpace page even though the state’s investigator “admitted he did not know who uploaded the photographs or messages on [defendant’s] page, who created the page, or how many people had a password to post content on the page”).
So what evidence would we gather to substantiate that one Twitter account is authentically registered to the Mayor of Chicago, while the other is not?Direct testimony. Circumstantial evidence regarding the Twitter accounts:-- associated email addresses-- date an account was opened-- other identifying information and metadata gathered by TwitterMay need to subpoena Twitter for information—but Twitter may not respond. So you may need to go to other sources of corroborating circumstantial evidence. For example, look for similar statements and speech patterns, in a similar time frame, in email or written correspondence, text messages, or other social media sites (Facebook etc.).
Direct testimonyDiscovery regarding the settings that I have on my Facebook page at the time the photo was posted. Lay foundation with expert testimony regarding the technical details of how photographs can be posted on a Facebook user’s wall generally, and specifically given my user settings. Lay foundation regarding how tagging of photos in Facebook works generally, and specifically given my user settings. Look for email, text messages, Tweets regarding skiing with these people in this timeframe—both my email, and their email. Go analog and check bank and credit card records for corroborating evidence.
If the social media content is offered for its substantive truth, is it hearsayas defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807)?The hearsay rules we are used to applying to conventional documents are easily applied to social media content. For example:Fed. R. Evid. 801(d): “Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: . . . (2) An Opposing Party’s Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity.” Fed. R. Evid. 803: “The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. . . . (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.”
Is the form of the social media content that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008)?
THE ADMISSIBILITY OF
SOCIAL MEDIA EVIDENCE
SOCIAL MEDIA UPDATE 2013
Any non-electronic source of potentially relevant
e.g., photographs, notes, correspondence, diaries, journ
als, etc.—likely has an electronically-stored equivalent in
the social media universe.
At least one commentator has remarked that it is a
matter of ―professional competence‖ for attorneys to
investigate social media sites. See Sharon Nelson et
al., ―The Legal Implications of Social Networking,‖ 22
Regent U.L. Rev. 1, 1-2 (2009/2010).
Why you should care:
(1) Is the social media content relevant under Rule 401?
(2) If relevant under 401, is the social media content
authentic as required by Rule 901(a)?
(3) If the social media content is offered for its
substantive truth, is it hearsay as defined by Rule
801, and if so, is it covered by an applicable exception
(Rules 803, 804 and 807)?
Five Hurdles for Admissibility
(4) Is the form of the social media content that is being
offered as evidence an admissible duplicate? (Rules
(5) Is the probative value of the social media content
substantially outweighed by the danger of unfair
prejudice, such that it should be excluded despite its
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).
Five Hurdles (cont.)
In a hostile environment sexual harassment case, the
court considered plaintiff’s Facebook posts regarding her
Defendant’s use of a Twitter account to distribute
disparaging information figured prominently in a
company’s trademark infringement complaint.
Facebook photographs of a workers compensation
claimant ―drinking and partying‖ were admissible to
support termination of his benefits.
―A party seeking to admit an exhibit need only make a
prima facie showing that it is what he or she claims it to
be.‖ Lorraine, 241 F.R.D. at 542 (internal citation omitted).
―Determining what degree of foundation is appropriate in
any given case is in the judgment of the court. The
required foundation will vary not only with the particular
circumstances but also with the individual judge.‖ Lorraine, 241
F.R.D. at 544 (internal quotations and citations omitted).
Hurdle No. 2: Authenticity
(a) To satisfy the requirement of
authenticating or identifying an item of
evidence, the proponent must produce
evidence sufficient to support a finding that
the item is what the proponent claims it is.
Authenticity: Rule 901(a)
The following are examples only — not a complete list — of
evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item
is what it is claimed to be.
. . .
(4) Distinctive Characteristics and the Like. The
appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the
. . .
(9) Evidence About a Process or System. Evidence describing a
process or system and showing that it produces an accurate result.
Authenticity: Rule 901(b)
Consider a three-step model of escalating
effort for authenticating social media
Step one: Seek a stipulation that the social
media content is authentic.
Authenticity: three steps
Step two: Serve requests for admission
designed to establish the authenticity of the
social media content.
Request No. 1: Admit that Exhibit A is a duplicate of a
Facebook post you created on March 1, 2013.
Request No. 2: Admit that Exhibit B is a duplicate of a
message that you posted on Twitter on March 2, 2013.
Authenticity: three steps
Step three: Perform discovery to establish
foundation—either direct or circumstantial—for
authenticity and hearsay exceptions.
―Photographs have been authenticated for decades
under Rule 901(b)(1) by the testimony of a witness
familiar with the scene depicted in the photograph who
testifies that the photograph fairly and accurately
represents the scene.‖ Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 561 (D.Md.2009).
Authenticity: three steps
Photographs, personal details, email addresses, posting
dates, and evidence of unique knowledge can be
combined to show the social media content was created
by a particular user.
Information from related sources—email notifications of
posting activity or replies to posts, and metadata
regarding location, time, date, and IP addresses—can
bolster circumstantial evidence of authenticity.
Authenticity: Circumstantial Evidence
Consider treatise references or expert testimony
– how user profiles are created and managed;
– privacy settings;
– what kinds of data a user can post on a
– whether metadata is attached to social media
Authenticity: Expert Testimony
Also, courts may require evidence establishing
whether the social media evidence in question
was vulnerable to manipulation,
I.e., whether the social media account is
fictitious, could have been hacked, or simply left
open and unattended.
– Griffin v. State, 19 A.3d 415, 424 (2011) (holding trial
court committed reversible error).
Authenticity: Manipulation of Data
Consider using requests for admission (or
similar deposition questions) to lay foundation.
– Request No. 1: Admit that you have a Facebook
– Request No. 2: Admit that your Facebook username
is ―Jane Doe.‖
– Request No.3: Admit that in March 2013, your
Facebook profile showed a picture of you skiing in a
Authenticity: Manipulation of Data
– Request No. 4: Admit that your Facebook
account is password protected.
– Request No. 5: Admit that you do not share
your Facebook password with others.
– Request No. 6: Admit that you do not routinely
leave your Facebook account open and
Authenticity: Manipulation of Data
Consider the content, not the form.
– Rule 801(d)(2): party admissions are not hearsay
– Rule 803: hearsay exceptions for present sense
impressions and state of mind
People v. Oyerinde, Dkt. No. 298199, 2011 WL 5964613
(Mich. Ct. App. Nov. 29, 2011) (upholding admission of
Facebook posts as non-hearsay party admissions, and
under the hearsay exception for statements of the
declarant’s then existing state of mind).
Hurdle No. 4: Hearsay
Rule 1003: ―A duplicate is admissible to the same extent
as the original unless a genuine question is raised about
the original’s authenticity or the circumstances make it
unfair to admit the duplicate.‖
United States v. Nobrega, 1:10-CR-00186-JAW, 2011
WL 2116991 (D. Me. May 23, 2011) (where the
government offered sufficient evidence for the jury to
reasonably conclude that the defendant authored the
online chat messages in question, a printout of the chat
was admissible as a duplicate).
Hurdle No. 5: Duplicates
Be careful what you post . . .