In this digital age, social media, texts, and a variety of other forms of technology have increasingly become evidence, or sought as evidence, in a wide sundry of litigation. How do you ensure that this evidence comes in at trial? This issue can prove daunting to newer practitioners as well as more seasoned practitioners who may not be as knowledgeable as to how to introduce into evidence e-mails, texts, or Facebook posts. Although it may appear more complicated at first glance, the short answer is simple: authentication. As with all other types of evidence, digital evidence must be authenticated in order to be properly introduced at trial. However, authenticating digital evidence can pose some interesting challenges.
As an initial matter, the proffered evidence must first be determined to be relevant. The test for determining relevancy is Federal Rule of Evidence (FRE) 401, which provides: “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Once the evidence is determined to be relevant, then it must be determined to be authentic.
The authentication standard is the same regardless of whether the evidence is digital or in a more traditional form—that is, FRE 901(a) requires the party proffering the evidence to demonstrate that the evidence is what it is claimed to be. FRE 901(b) sets forth examples of evidence that satisfy the general requirements of FRE 901(a), including, but not limited to, the testimony of a witness with knowledge under FRE 901(b)(1), distinctive characteristics of the item under FRE 901(b)(4), or a comparison by an expert witness under FRE 901(b)(3).
E-mails are now commonly offered as evidence at trial. After first demonstrating that the evidence is relevant pursuant to FRE 401, the attorney proffering this evidence must establish authenticity: Was the e-mail sent to and from the persons as indicated on the e-mail? Here, a witness with personal knowledge may testify as to the e-mail’s authenticity, which typically is the author of the e-mail or a witness who saw the proffered e-mail drafted and/or received by the person the proponent claims drafted/received the e-mail. In addition, if the e-mail has been produced in response to a sufficiently descriptive document request, the production of the e-mail in response may constitute a statement of party-opponent and found to be authenticated under FRE 801(d)(2).
Texts are also becoming increasingly offered as evidence at trial. Typically, evidence of texts is obtained in one of two forms: (1) as screen shots; or (2) as photographs of the text messages. Whether a screen shot or a photograph, it is important that the screen with the text message, the name and/or phone number of the person sending the text message, and the date and time the message was sent are clearly displayed. Text messages can be authenticated by the testimony of a witness with knowledge or by distinctive characteristics of the item, including circumstantial evidence such as the author’s screen name or monikers, customary use of emoji or emoticons, the author’s known phone number, the reference to facts that are specific to the author, or reference to facts that only the author and a small number of other individuals may know.
Social media networks such as Facebook, Linked-In, and the like are now ubiquitous; consequently, social media posts have increasingly become evidence at trial. However, authenticating a social media post generally is more difficult than an e-mail or a text. For example, it is insufficient to simply show that a post was made on a particular person’s webpage; it is generally too easy to create a Facebook page or the like under someone else’s name. In addition, an individual could have gained access to someone else’s social media account. To properly introduce evidence of a social media post at trial, you must first have a printout (or download, if a video) of the webpage that depicts the social media post you seek to introduce as evidence, and the person who printed or downloaded the post must testify that the printouts accurately reflected what was on his or her screen when it was printed or downloaded.
Once that is established, the social media post must be authenticated. This can be done in several ways. Direct witness testimony can be obtained by the purported creator of the post, from someone who saw the post being created, and/or from someone who communicated with the alleged creator of the post through that particular social media network. Testimony can be obtained from the social media network to establish that the alleged creator of the post had exclusive access to the originating computer and the social media account. The subscriber report can also be subpoenaed from the social media network, which can identify all posts made and received as well as any comments, “likes,” “shares,” photographs, etc. As with e-mails and texts, circumstantial evidence may also be used for authentication pursuant to FRE 901(b)(4) if, for example, the post contains references or information relating to family members, a significant other, or co-workers; the writing style of the posts or comments is in the same style (i.e., slang, abbreviations, nicknames, and/or use of emoji/emoticons) the purported author uses; or there are private details about the author’s life or details that are not widely known that are indicated in the post. Finally, do not overlook the option of having the author of the social media post authenticate the post and testify regarding the post in his or her deposition.
In sum, authentication is key to getting digital evidence such as e-mails, texts, and social media posts admitted into evidence, but proper authentication can be a significant hurdle, and this often is a fact-driven issue that will vary from case-to-case.