This is the first in a three-part series explaining the role of social media and website evidence in litigation. Part Two provides a straightforward, 5-step guide to authenticating and entering social media evidence into litigation. Part Three will look at the practical issues in authenticating digital evidence.
The U.S. Court system has had a long and tortured relationship with digital evidence in litigation. At the beginning of the Internet era, in St. Clair v. Johnny’s Oyster & Shrimp, Inc., the judge infamously wrote, “While some look to the Internet as an innovative vehicle for communication, this Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions…”
Thankfully, courts have gotten much savvier about authenticating social media and digital evidence in eDiscovery. In fact, it turns out that the rules have been there all along – it’s just taken some time for them to adapt the existing rules of evidence to the digital world. While the Federal Rules of Civil Procedure have had to be continually updated to manage electronic records in discovery – authenticating records is actually relatively straightforward. In fact, it turns out the “so-called Web” provides many ways to verify the authenticity of information.
A Man With a Lot to Say About Social Media
This week, we will focus on the work of one judge in particular. Judge Paul Grimm has taken the lead in establishing how courts can quickly and effectively resolve disputes around digital media in litigation, especially social media. I am going to focus on one of the most important opinions from Grimm, Lorraine v. Markel American Insurance Co. In this case, he identified the issues a lawyer must consider in determining admissibility of digital evidence, which 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.
Grimm recently co-authored a 40-page analysis called “Authentication of Social Media Evidence” in the American Journal of Trial Advocacy. (You can find a PDF copy here.)
In addition, Judge Grimm not only authored the ruling in Lorraine, but he also serves as a member of the Advisory Committee for the Federal Rules of Civil Procedure and chairs the Advisory Committee’s Discovery Subcommittee. So, not only does he have a lot to say about social media evidence in litigation, but his opinion counts for a lot. (I profiled Grimm and other influential eDiscovery judges for the ABA Journal back in 2008.)
Why This is Still a Problem in 2013?
As we’ve discussed, social media law has been evolving and is now a very clear area of law. However, courts do recognize that there are special challenges in authenticating social media. As noted in another important case, Griffin v. Maryland, there is always, “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 that if a person was the person who published a post.
As the court in Griffin found, problems arise entering digital evidence into litigation, it usually comes from a lack of information. As in Griffin, lawyers often try to enter social media evidence into the record in the form of a website printout.
Of course, any time you take social media out of its context or strip the identifying metadata and links, it makes authentication nearly impossible. However, when properly preserved, social media and website content can easily be vetted using the existing rules of evidence.
Authenticating Social Media: There is a Rule For That
The rule that applies directly to authenticating social media is Federal Rules of Evidence Rule 901. We will discuss these guidelines in detail tomorrow. However, Judge Grimm says that lawyers and judges have made mistakes admitting or denying social media into litigation when they forget to first consider rule 104(a) and (b).
He says there is a subtle but important distinction made in the Federal Rules of Evidence 104. First, the court must consider if a jury could reasonably find that the evidence is authentic. But, he says, even if there is reason to question the evidence, a judge should not throw it out, but allow the jury to consider the issue.
That means if the party introducing a piece of evidence produces something that the judge thinks could convince a reasonable juror that the social media evidence is authentic, the evidence should be introduced. The party objecting to the evidence has a higher burden- they have to show that the evidence is in fact a fake.
“A trial judge should admit the evidence 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 says. “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.”
For Your Consideration
Given that analysis, social media and website evidence is actually difficult to reject from most matters. That means lawyers not only have to authenticate social media evidence for a judge, but have to convince a jury that any Tweet, Facebook post, or email is authentic. That’s going to take solid forensic analysis.
The fundamental problem is still the same as the court in St. Clair v. Johnny’s Oyster – how to determine if social media and Internet content is legitimate evidence. That’s because a Facebook post, email or text message can in fact be created by someone other than the named sender.
Fortunately, that framework for finding proof of authorship should be familiar to lawyers and judges familiar with the Federal Rules of Evidence. In part 2, we will take a look at how social media and website evidence can be authenticated using the existing Federal Rules.