This is the second in a three-part series explaining the role of social media and website evidence in litigation. Part One focused on understanding the rules for authenticating social media. Part Three will look at the practical issues in authenticating digital evidence.
Every lawyer wants a smoking gun – that one piece of hard, irrefutable evidence that blows your opponent’s case to pieces, leaves witnesses shaking with fear on the stand, and wins your client a large settlement. Increasingly, social media evidence is where lawyers look for that smoking gun. However, social media is rarely a hard piece of irrefutable evidence.
Lorraine v. Markel American Insurance Co is one of the most important cases related to Internet evidence in litigation. In that matter, the court said that to enter digital evidence into litigation, parties do not need to completely authenticate it. In fact, it said, “the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury might ultimately do so.”
What Are You Trying to Prove?
In that case, Judge Paul Grimm wrote, “[i]n 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?”
However, getting to those facts sometimes takes old-fashioned research and analysis. In State v. Eleck, the court found, “[a]n 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 offered some sensible steps to find out if a social media posting is likely authentic:
1. Ask the purported creator if she indeed created the profile and also if she 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.
3. Obtain information directly from the social networking website 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 author of the Lorraine decision, Judge Grimm, did not invent those steps – they come from the Federal Rule of Evidence Rule 901. According to Judge Grimm, the rule identifies all of the steps necessary to authenticate digital content, many of which are tailor-made for use in authenticating social media evidence.
How do lawyers get at the authenticity of social media and website content? The five rules that courts have applied to Electronically Stored Information (ESI) are: Rules 901(b)(1) (testimony of a witness with personal knowledge), 901(b)(3) (comparison with an authenticated document), 901(b)(4) (distinctive characteristics), 901(b)(7) (evidence about public records), and 901(b)(9) (evidence about a process or system) — as well as Rule 902(5) (official publications). Grimm puts the steps in this order:
The 5 Steps to Authenticate Social Media and Digital Evidence from the Internet
1/ Rule 901(b)(1)—Evidence from Someone with Personal Knowledge
As the title of the rule suggests, the first step to authenticating something from the Internet or social media is is simply to ask a witness – the purported author or someone else who was there when the item was created- if it is authentic. In a civil case, this usually is the owner of a page.
2/ Rule 901(b)(3)—Use of an Expert or Comparison by the Fact Finder
This one will cost money, but if the owner is not able to authenticate the evidence, hire a computer forensic expert who can authenticate the evidence. In some cases, it is necessary to consult the company that hosts a website or social media content to authenticate the media. Courts have approved the comparison of ESI known to be authentic with ESI of questionable authenticity pursuant to Rule 901(b)(3), and they have considered circumstances and distinctive characteristics of the ESI—for example, hash values and metadata
3/ Rule 901(b)(4)—Distinctive Circumstances or Characteristics
Think of this as the common sense rule. Or, as Judge Grimm writes, “If it looks like a duck, waddles like a duck, and quacks like a duck, it must be a duck.” As with other media, lawyers should look at content they know is authentic and look for stylistic consistency, slang, emoticons, Internet addresses, dates, and any other factors that are unique to the person that you claim authored it. To succeed, it is vitally important that lawyers have a complete, forensically accurate copy of the media with all associated metadata.
4/ Rule 901(b)(9)—System or Process Producing Reliable Results
To authenticate social media or website content under Rule 901(b)(9), you will need very specialized expert testimony who can provide an opinion on the authenticity of the data under Rule 804(b)(1). This person will have to be able to look at the evidence in question an issue an opinion on the reliability of the evidence to the court.
5/ Public records (901(b)(7) or Official publications (902(5)
Even in Internet-era matters, evidence from public records and official publications downloaded from the Internet are going to be important in many types of litigation. In Williams v. Long, the plaintiffs submitted printed web pages from the website of the Maryland Department of Labor as evidence. Simply demonstrate that the records come from the “legal custodian” of that information.
As with old-fashioned paper records, these steps should be sufficient to authenticate social media and website content in any matter. However, there are some evolving aspects of the law, which I will discuss more in Part 3 of our series on authenticating social media in litigation.