While the rules surrounding authentication of evidence were created when evidence was still in the form of paper documents, social media postings have become more and more commonly used as evidence as they can capture an accurate snapshot of a person’s prior thoughts or actions. Social media refers to websites such as Facebook and Twitter, through which users create online communities to share information, ideas, messages, and other content; and users “post” this content to these websites. While using this evidence can often be advantageous and produce relevant information, it can create challenges and confusion in applying the authentication rules, which were traditionally created and used for documents created and stored in paper form. However, the steps of admitting a social media post are not materially different from those of traditional evidence and include establishing (1) the social media posting’s relevance, (2) that the exhibit accurately reflects the original social media posting, and (3) that the social media posting is attributable to the purported author.
The first and threshold determination of whether a social media posting will be admitted is whether or not the evidence is relevant to the claims or defenses asserted. In other words, it must have “any tendency” to prove or disprove a consequential fact. If it is a statement being made for the truth of the matter, the exceptions to hearsay must be taken into account in making sure that the evidence is not excluded (e.g., present sense impression, recorded recollection, etc.). Therefore, first and foremost, be able to articulate the social media posting’s relevance and purpose for its admission into evidence.
Once relevance has been established, Federal Rule of Evidence (FRE) 901 requires that the evidence be authenticated. FRE 901 sets a relatively low standard for authentication and requires that a proponent must produce evidence sufficient to support a finding that the evidence is what the proponent claims it is. A Maryland district court case, Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), is also instructive regarding authentication of a social media posting. In that case, the court held that in order to authenticate digital evidence, the parties need only make a prima facie showing that the evidence is what the proponent claims. Authentication involves two steps: establishing legitimacy and establishing authorship.
Establishing legitimacy is the first part of authentication. The second step of admitting a social media post is to show that the exhibit is in fact an accurate reflection of the original social media posting. The most common way to authenticate a social media posting is to have someone with personal knowledge testify that the posting is what it purports to be. Ideally, the author of the social media posting will testify that he or she is the person that made the social media posting, printed it out, and recognizes the exhibit as that printout of that posting. If the author is unavailable, the proponent could instead have a witness testify that he or she visited the social media site, read the posting, recalls the posting’s contents, and can testify that the exhibit accurately reflects the posting that the witness saw and recalls.
Establishing authorship is the second part of authentication. However, opponents may challenge authentication by asserting the possibility that others could have gained access to the person’s account, created a fake account in a person’s name, or manipulated the posting. Therefore, the third step of admitting a social media posting involves showing that the social media posting can be attributed to a certain person.
Courts will rely on a variety of means to determine if a sufficient showing has been made to attribute the social media posting to its author. Having the author authenticate the post is the simplest way. However, if the author is not available, other methods include offering evidence that the purported author had exclusive access to the social media account, evidence showing consistency across an author’s other social media platforms, evidence showing characteristics of the posting distinct to the author, and/or evidence showing content that only the author could have provided. Finally, it may be possible to have a forensic computer expert testify that he or she examined the hard drive of a computer used exclusively by the author and was able to recover the social media posting from the hard drive of that computer. All of these methods could provide strong evidence of the purported author of the posting. Additionally, FRE 901(b) provides other examples of evidence that will satisfy the authentication requirement.
FRE 902 amendments will add more security to authentication. As of December 2017, FRE 902 will add amendments that provide for the self-authentication of data taken from an electronic device and alleviate the need to call a witness to certify the authenticity. FRE 902(14) covers records “copied from an electronic device, storage medium, or file” that can be authenticated using the electronic evidence’s hash values. A hash value is a unique alphanumeric identifier that can be assigned to electronic evidence to provide it with distinctive characteristics. If an original and copy have the same hash value, there is a high probability that the data is identical. The amendment provides that certification based on the electronic evidence’s hash value satisfies authenticity requirements that it is what the proponent claims it to be. Certification must be provided by a “qualified person” such as a forensic expert, e-discovery practitioner, or technical expert that can attest to the accuracy of the process that produced that exhibit and the accuracy of the exhibit itself.
In sum, while authenticating social media postings may seem like a daunting task, this tribulation can be overcome by some planning, analysis, and defensible data collection methods. While standards are still evolving, the law now provides helpful guidance as to accepted methods of authentication. Although collection and authentication may present challenges, it is worth learning to do so properly. More and more, utilizing social media postings will lead to advantages at trial.
Chelsea Glynn is an associate with Dunn Carney LLP in Portland, Oregon.
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