Excerpted from Lexology By Christine Lozier and Michael C. Zogby
Social media is ubiquitous in our cyber-connected world. For many, the first thing a person does when they wake up, and the last thing that person does when they go to bed is read, post, or otherwise interact with platforms such as Facebook, Twitter, Instagram, LinkedIn, and the like. For litigants in a lawsuit the potential to unwittingly post something online that is not thought through or carefully composed can be a trap. Attorneys look at social media presence in their quest for evidence, and discovery requests for social media posts are commonplace in deposition notices, preservation requests, fact sheets, interrogatories, and requests to produce.
Social media is subject to Rules of Evidence principles, including relevancy, authenticity, hearsay, and the probative value of evidence in light of its potential for unfair prejudice. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007). Of these, authentication at trial is thought to be the “greatest challenge.” Hon. Paul W. Grimm, et al., Authentication of Social Media Evidence, 36 Am. J. Trial Advoc. 433, 439 (2013). Authentication of social media evidence is more complicated than showing a witness a printout with an account name and photo alongside the commentary − and for good reason. As the Third Circuit has recognized, social media evidence presents special challenges because of “the great ease with which a social media account may be falsified, or a legitimate account may be accessed by an impostor.” United States v. Browne, 834 F.3d 403 (3d. Cir. 2016).
Rules Regarding Social Media Evidence
The proponent of the evidence must lay a foundation that addresses the concern that someone other than the alleged author accessed the account and posted the comment in question. Griffin v. State, 19 A.D. 415,423 (Md. 2011). Courts have disagreed on the standard for admission. Some, following the more restrictive “Maryland” Standard, will not admit social media evidence unless the proponent of the evidence affirmatively establishes that it is authentic. Most courts, however, impose the less-restrictive “Texas” standard, and allow evidence to be authenticated by introducing enough facts to persuade a reasonable juror that the evidence was created by the person who the proponent alleges created the post. Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012). This less-restrictive standard aligns with Rule 901(a) of the Federal Rules of Evidence, which requires a preliminary showing that the evidence is what the proponent claims.
New Jersey courts have affirmatively rejected the need for heightened scrutiny. State of New Jersey v. Terri Hannah, 448 N.J. Super. 78 (App. Div. 2016) (“We need not create a new test for social media postings.”). “The simple fact that a tweet is created on the internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under N.J.R.E. 901.” Id. Following N.J.R.E. 901, the proponent of such social media evidence must set forth “evidence sufficient to support a finding that the matter is what its proponent claims.” The proponent need not establish authenticity with “absolute certainty or conclusive proof.”
In Hannah, the court found that social media evidence in the form of tweets had been properly authenticated where (1) the tweet suggested the author was a person with “intimate knowledge” of the incident, (2) the tweet was “sent in reply to a previous communication,” and (3) testimony was presented that the tweet displayed the poster’s picture and the witness was familiar with poster’s Twitter handle. The Third Circuit has followed this approach to authentication, holding “that it is no less proper to consider a wide range of evidence for the authentication of social media records than it is for the more traditional documental evidence.” United States v. Browne, 834 F.3d 403 (3d. Cir. 2016).
While most courts are trending toward this more lenient standard, a practitioner should nonetheless attempt to build as many connections as possible between the author and the exhibit. These connections may include:
• Testimony from the purported creator of the social network profile and related postings
• Testimony from persons who saw the purported creator establish or post to the page
• Testimony of a witness that she often communicated with the alleged creator of the page through that account
• Expert testimony concerning the results of a search of the social media account holder’s computer hard drive
• Testimony about the contextual clues and distinctive aspects in the messages that tend to reveal the identity of the purported author
• Testimony regarding the account holder’s exclusive access to the originating computer and social media account
• Information from the social media network that links the page or post to the purported author
• Testimony directly from the social networking website that connects the establishment of the profile to the person who allegedly created it and connects the posting sought to be introduced to the person who initiated it
• Expert testimony regarding how social network accounts are accessed and what methods are used to prevent unauthorized access
• Production pursuant to a document request
• Whether the purported author knows the password to the account, and how many others know it as well
• That the page or post contains some of the factors previously discussed as circumstantial evidence of authenticity of texts, emails, etc., including:
o Nonpublic details of the purported author’s life
o Other items known uniquely to the purported author or a small group including him or her
o References or links to, or contact information about, loved ones, relatives, co-workers, others close to the purported author
o Photos and videos likely to be accessed by the purported author
o Biographical information, nicknames, etc. not generally accessible
o The structure or style of comments that are in the style of the purported author
o That the purported author acts in accordance with the contents of the page or post.
Hon. Paul W. Grimm, et al., Best Practices for Authenticating Digital Evidence, West Academic Publishing 2016.
Obligations for Litigants
The existence of social media evidence also raises new obligations for litigants. Courts, including the New Jersey District Court, have imposed sanctions for spoliation when parties have destroyed social media evidence. In Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013), plaintiff executed a Facebook authorization and agreed to enable access by changing his password to one disclosed to the defendants. He later deactivated his account after receiving a notice that someone was trying to access the account. Facebook, according to its policy, automatically deleted Gatto’s account after 14 days without reactivation. The court imposed sanctions where even “if plaintiff did not intend to permanently deprive the defendants of the information associated with his Facebook account, there [was] no dispute that plaintiff intentionally deactivated the account[,]” which “caused the account to be permanently deleted” and as such, the “plaintiff failed to preserve the relevant evidence.”
Attorneys also need to be cognizant of social media retention on behalf of their clients, as they have an ethical duty to “ensure that potentially relevant information is not destroyed ‘once a party reasonably anticipates litigation’ or in accordance with common law, statute, rule, or regulation.” However, provided that removal of social media “does not violate the substantive law regarding the destruction or spoliation of evidence, there is no ethical bar to ‘taking down’ such material from social media publications, or prohibiting a client’s lawyer from advising the client to do so, particularly inasmuch as the substance of the posting is generally preserved in cyberspace or on the user’s computer.” Social Media Ethics Guidelines of the Commercial and Federal Litigation Section of the New York State Bar Association, Comments to Guideline No. 5A.
These issues arise more frequently at trial as technology becomes more ingrained in our lives. With platforms such as Facebook, Instagram, Twitter, and more work-related sites such as LinkedIn, which now serves as a public resume, one would be hard-pressed to find a person with zero social media presence. Additionally, the ability to alter electronic evidence is becoming more widespread. As technology continues to advance, attorneys need to monitor and stay ahead of evolving requirements to authenticate this evidence and the ethical rules associated with preservation.
Excerpted from Lexology By Christine Lozier and Michael C. Zogby