Authenticating social media for litigation is a relatively new phenomenon, but it has not demanded the creation of any new legal theories. In today's litigation, evidence may come from Facebook, Twitter, YouTube, blogs or other social forums. Fortunately, the Federal Rules of Evidence (or applicable rules in your jurisdiction) are all that lawyers need to authenticate social media, blogs, websites and other online content. Basic steps have not changed, but social media adds a few new wrinkles.
Courts recognize that there are special challenges in authenticating social media. As noted inGriffin v. State of Maryland No. 74 (Maryland; Apr. 28, 2011), there is always a “potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user.” In that case, the court concluded that a printout from a social media 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,” to determine whether a person in question actually published a post.
As Griffin found, problems arise from a lack of detailed information. Lawyers often try to enter social media evidence into the record in the form of a website printout. But when social media is out of context, or identifying metadata and links are stripped, authentication is nearly impossible. However, when properly preserved, social media and website content can be vetted using the existing rules of evidence.
U.S. District Judge Paul Grimm, of the District of Maryland has addressed how courts can resolve digital media and social media disputes. In Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), Grimm identified the issues a lawyer must consider when determining admissibility of digital evidence. They include the same standards applied to other types of evidence: relevance, authenticity, hearsay, the original writing rule and probative value as compared with possible unfair prejudice.
The rule that applies most directly to authenticating social media is Rule 901 of the Federal Rules of Evidence. However, Grimm notes that lawyers and judges have made mistakes admitting or denying social media when they forget to first consider Rule 104(a) and (b). Under those rules, a court must consider if a jury could reasonably find that the evidence is authentic—even if there is reason to question the evidence, a judge should not throw it out, but allow the jury to consider the issue. For example, in Parker v. State of Delaware (Del. Sup. Ct. Feb. 5, 2014), the defendant argued that social media evidence had to be authenticated by “testimony of the creator, documentation of the Internet history or hard drive of the purported creator's computer, or information obtained directly from the social networking site.” That standard had been applied in the Griffin case. However, the Parker court, following precedent from a Texas court case, said only that “the jury ultimately must decide the authenticity of social media evidence.”
That means a party objecting to digital evidence has a high burden. They have to show that the evidence is in fact a fake. “A trial judge should admit the evidence,” Grimm wrote, “if there is plausible evidence of authenticity produced by the proponent of the evidence and only speculation or conjecture—not facts—by the opponent of the evidence about how, or by whom, it ‘might’ have been created.” He continued, “Too many courts that considered admissibility of social media evidence completely overlooked this important distinction and, in doing so, made questionable rulings excluding evidence that should be admitted.”
Given that analysis, social media and website evidence is actually difficult to reject from most matters. However, in order to convince a jury that any tweet, Facebook post or email is ultimately authentic, a lawyer will need solid forensic analysis. As in Lorraine v. Markel American Insurance Co., Grimm noted that in applying[the authentication standard to website evidence, "there are three questions that must be answered, explicitly or implicitly: 1) What was actually on the website? 2) Does the exhibit or testimony accurately reflect it? 3) If so, is it attributable to the owner of the site?”
Getting to those facts sometimes takes research and analysis. In State of Connecticut v. Eleck, AC 31581 (Conn. Ct. App. Aug 9, 2011), the court found “an electronic document may continue to be authenticated by traditional means such as the direct testimony of the purported author or circumstantial evidence of ‘distinctive characteristics’ in the document that identify the author.” Once the proponent produces sufficient evidence to convince a reasonable juror that the social media evidence is authentic, the burden of production shifts to the party objecting to demonstrate the item is a fraud. Lorraine outlined some sensible steps to find out if a social media posting is likely authentic:
1. Ask the purported creator if he or she indeed created the profile and also added the posting in question.
2. Search the computer of the person who allegedly created the profile and posting, and examine the computer’s Internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.
