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March 20, 2018 Articles

Presidential Tweets, Yelp Reviews, "FREE BOOZY," and Admissibility

Social media and the Internet have opened up new worlds of communication—and they have also opened up new worlds of evidence and admissibility issues in the legal context.

By Keith S. Dubanevich

The U.S. Supreme Court recently described cyberspace and social media as the most important places today “for the exchange of views.” In holding that a state statute that prohibited a felon’s access to social media sites was unconstitutional as an unreasonable restraint on First Amendment rights, the Court noted that “[s]even in ten American adults use at least one Internet social networking service . . . [and that] Facebook has 1.79 billion active users, . . . about three times the population of North America.” Packingham v North Carolina, 582 U.S. ___, 137 S. Ct. 1730, 1735 (2017) (citations omitted).

Social media and the Internet have opened up new worlds of communication—and they have also opened up new worlds of evidence and admissibility issues in the legal context.

Social Media in the Courtroom
Recent cases raise numerous questions about the use in court of social media posts and other forms of electronic information.

In Hawaii v. Trump, the Ninth Circuit took judicial notice of a presidential tweet. 859 F.3d 741, 773 n.14 (9th Cir. 2017), cert. granted, judgment vacated & remanded, 138 S. Ct. 377 (Oct. 24, 2017). The court said that President Trump’s tweet was evidence of the purpose for the challenged travel ban. The Ninth Circuit cited the White House press secretary’s confirmation that presidential tweets are “considered official statements by the President of the United States.” Id. (quoting Elizabeth Landers’s CNN article).

In a bail reduction case, New York attorney Ben Brafman reportedly told a Brooklyn federal judge, “Tweeting has become, unfortunately, very fashionable and when people tweet they don’t always mean what they say. . . .” Brafman wasn’t referring to President Trump; rather he was referring to his client, controversial ex–pharmaceutical company executive Martin Shkreli. Shkreli was seeking a reduction in his $5 million bail, allegedly so that he could pay legal fees, taxes, and consultants. Unfortunately for Shkreli, he had previously claimed in tweets that he would pay a college student $40,000 to solve a math problem and offered a $100,000 reward for information leading to the arrest of a killer. Prosecutors offered the tweets to show that Shkreli was not impoverished, and Brafman was left to claim that his client’s tweets were only “preposterous promises.”

In an employment matter, June Chu, Yale University residential college dean, was put on leave after using offensive language in a restaurant review on Yelp. Chu wrote about a Japanese restaurant, which she said lacked authenticity: “If you are white trash, this is the perfect night out for you!” Chu added that the restaurant was perfect for “those low class folks who believe this is a real night out.”

In contrast, Crystal Eschert, a 29-year-old arson investigator for the Charlotte, North Carolina, fire department, was awarded $1.5 million in her wrongful discharge lawsuit in which the city asserted that she was discharged for her Facebook posts, made in August 2014 shortly after the fatal police shooting of a black teenager in Ferguson, Missouri. Eschert reportedly posted, “If you are a thug and worthless to society, it’s not race—You’re just a waste no matter what religion, race or sex you are.” Eschert brought suit claiming that she wasn’t fired for her Facebook post but rather for her whistle-blower complaints about a new public building and her concerns about asbestos contamination, mold, and electrical problems. The jury apparently agreed with her.

Preservation and Spoliation Issues
The initial issue to be addressed is proper preservation of the evidence in order to make it admissible later and to avoid sanctions for spoliation.

One risk of failing to preserve is an adverse inference instruction, as happened in Gatto v. United Airlines. Gatto filed a lawsuit for job-related injuries; the defendants requested the plaintiff’s Facebook account to assess his activities and damages, and Gatto provided them with a password for the account. After printing some of the account pages, one of the defendants issued a subpoena to Facebook. The plaintiff deactivated his account, allegedly because he had received notice that the account had been accessed improperly, and a few days later the account was automatically deleted. The defendants claimed that photos that the plaintiff had posted and that were then deleted contradicted his claims and deposition testimony. The U.S. magistrate judge agreed with the defendants and granted their motion for an adverse inference instruction.

Gatto predates the 2015 amendments to the Federal Rules of Civil Procedure, and whether the outcome would be the same under the amended rules is unclear. Some of the most significant changes to the rules that became effective on December 1, 2015, relate to spoliation sanctions under Rule 37(e). The amended rule was adopted to address concerns that parties were incurring burden and expense as a result of overpreserving data, which they did because they feared severe spoliation sanctions, especially because federal circuit courts had developed varying standards for penalizing the loss of evidence. While some circuits had required a showing of willfulness or bad faith before a court could dismiss a case, enter judgment by default, or utilize an adverse inference, the Second Circuit in Residential Funding Corp. v. DeGeorge Capital Corp. permitted such sanctions upon a finding that the party that had lost or destroyed evidence had acted negligently. The Rules Advisory Committee explicitly rejected the Second Circuit standard and instead adopted the principle that severe sanctions are only permitted where the court finds an “intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e)(2).

One recent case shows that mere negligent failure to preserve electronically stored information (ESI) is not enough for a court to impose sanctions: there must be either prejudice to the requesting party or evidence that the producing party intended to deprive another of the relevant evidence. Leidig v. Buzzfeed is a defamation case arising out of an online article bearing the title “The King of Bullsh*t News.” The plaintiffs claimed that the article defamed them by accusing them of “fabricating and selling fake news stories.” The defendant sought discovery of the plaintiffs’ websites, email, and metadata. The court first found that the plaintiffs were obligated to preserve the information but found no intent to deprive the defendant of the evidence. The court also found no prejudice in the failure to produce the original version of an email but found there was prejudice in the failure to produce the disabled websites and metadata. The court thus precluded the plaintiffs from using certain evidence at trial and allowed the defendant an evidentiary instruction.

On a final note: In a case that demonstrates what an attorney should never advise a client, a trial court judge in Charlottesville, Virginia, ordered the plaintiff’s counsel to pay $542,000 for the defendant’s attorney fees as a sanction for instructing his client to remove photos from his Facebook profile. The plaintiff brought a wrongful death case after his spouse died in an automobile accident. The lawyer instructed his client to “clean up” his Facebook account, which included a photo of the supposedly distraught widower holding a beer and wearing a T-shirt with the words I [heart] hot moms.

Authentication and Authorship Issues
Once social media or other Internet evidence is properly preserved and obtained, the next issue for admissibility is how to obtain the proof necessary to authenticate the evidence, including proof of who authored the post.

Federal Rules of Evidence 901 and 902 control authentication. The primary requirement (and obstacle) to admission is Federal Rule of Evidence 901, which requires that the proponent produce proof that the item of evidence is what the proponent says it is. Federal Rule of Evidence 901 includes a list of ways that evidence can be authenticated, and Federal Rule of Evidence 902 lists self-authenticating documents. But other than specific references to voice communications and certain kinds of documents, the illustrations are based on commonsense general factors such as the testimony of a witness with knowledge, comparisons with other evidence, and patterns or distinctive characteristics.

Federal courts have interpreted Federal Rule of Evidence 901(a) to require that the proponent of the evidence make a prima facie showing of authenticity because “the rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” United States v. Black, 767 F.2d 1334, 1342 (9th Cir. 1985) (quoting Weinstein’s Evidence). Thus, once the evidence is admitted based on the prima facie showing, disputes as to authentication or identification are left to the trier of fact.

It should not be surprising that it is not enough to print a copy of a tweet and consider it self-authenticating, unless you are quoting a tweet by the president of the United States. In State of Connecticut v. Eleck, the Appellate Court of Connecticut affirmed the trial court’s decision to deny admission of Facebook messages that the defendant printed from his own computer. The messages allegedly were from another Facebook user’s account to the defendant’s account. The court found it insufficient that the defendant proffered evidence that the copy was accurate, the purported sender had a connection to the Facebook account, the purported sender had added the defendant to her list of Facebook “friends” shortly before allegedly sending the messages, and the purported sender removed the defendant as a friend after testifying against him at trial. While admitting that the messages were sent from her Facebook account, the purported author denied that she was the author. Instead, she suggested that she could not have authored the messages because the account had been “hacked.” The court concluded that the evidence was insufficient to prove that the information in the messages was distinctive enough to ascertain that the messages were generated by the purported author.

Authentication and authorship were also at issue in Griffin v. Maryland, in which the Maryland Court of Appeals reversed the defendant’s conviction, finding that the defendant’s girlfriend’s MySpace posting was wrongly admitted. There, the defendant, who was nicknamed Boozy, was charged with murder. During trial, the state sought to admit a printout of a MySpace page that contained the following words: “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!” For reasons that are not clear, the state did not attempt to authenticate the printout through the girlfriend’s testimony. Instead, the state sought to establish authenticity and authorship through the testimony of an investigator. The evidence included a picture of the girlfriend with Boozy from the account in question and personal information about the girlfriend that was posted on the account. The trial court admitted the printed copy, but the Maryland Court of Appeals reversed, finding insufficient evidence to link the defendant’s girlfriend to the MySpace profile posting. Part of the court’s reasoning was that anyone could have created the account: there was no proof that the account was secure, so anyone could have made the postings, including the threat.

Another shooting case, this time from Texas, shows how MySpace postings can be properly authenticated. In Tienda v. State of Texas, circumstantial evidence established that the MySpace account was opened in the defendant’s name and at his email address, the MySpace page contained numerous photographs of the defendant, there were posts that were authored by someone who had been on home confinement just like the defendant, and there were references to the defendant’s gang name. That evidence was sufficient for the court to admit MySpace postings that bragged about killing (“I kill to stay rich”) and complained about snitches.

Authentication and authorship can include a variety of methods. Courts have relied upon a variety of methods to prove authorship. These range from corroborating evidence, evidence of facts known only by the party claimed to be the author, and evidence that the author showed up at a meeting discussed in a chat.

One of the leading cases on the admissibility of electronically stored or transmitted information is Lorraine v. Markel American Insurance Co. 241 F.R.D. 534 (D. Md. 2007). There, Chief U.S. Magistrate Judge Paul Grimm observed that, “given the wide diversity of such evidence, there is no single approach to authentication that will work in all instances.” Id. at 553–54. Lorraine contains an extensive discussion of Federal Rules of Evidence 901 and 902 and how the rules apply to electronic evidence. The opinion also discusses aspects of electronic evidence such as “hash values,” which uniquely identify electronic evidence; analysis of metadata, which shows the history of a document; self-authentication via identifiers in emails; use of a wayback machine to show the content of a website; use of circumstantial evidence to support the identification of the author of text and chat messages; and specific methods to authenticate digital photographs.

It is important to be prepared to prove a claim of authenticity and authorship in a variety of ways. For example, forensic computer evidence may be necessary to prove that tweets or Facebook and LinkedIn posts were properly collected and preserved with best-practices technology specifically designed for litigation purposes. Furthermore, social media metadata fields can reveal a lot of useful information. For example, Facebook’s metadata fields include the user account ID, the URL (web address) of where the user profile image is located, the creation date of the message or post, when the post was revised or updated, the recipients of the message identified by name and user ID, and unique identifiers for posted photographs and each wall post. In fact, there are over 20 unique metadata fields associated with individual Facebook posts and messages. Any one of those entries or a combination of them contrasted with other entries can provide unique circumstantial evidence that can establish foundational proof of authorship.

Finally, deleted information can often be retrieved. Messages that may have been deleted from the sender’s account may still exist in the recipient’s account or may have been forwarded elsewhere, posts that have been deleted from a social media site may still exist on the hard drive of the creator’s computer, and deleted websites may be found via wayback mechanisms and via subpoenas to developers or Internet service providers.

In sum, to fully utilize the benefit of a social media statement in court, consider the following:

  • Ensure proper preservation and collection.
  • Pay special attention to metadata.
  • Be prepared to address hacking claims.
  • Consider alternatives to find deleted information.

Keep in mind that the evidentiary analysis still follows Rules 901 and 902. Whether the information is scratchings on a stone tablet or electrons on a server, the analytical framework is the same.


Keith S. Dubanevich is a senior partner with Stoll Berne in Portland, Oregon.