Evidence of mobile data, such as text messages and chats, is increasingly being requested and offered in litigation. Occasionally, screenshots of mobile or social-media data may be the only source or the most reliable evidence available. See, e.g. Twitter, Inc. v. Musk, 2022 WL 5078278, at *3–4 (Del. Ch. Oct. 5, 2022) (noting that while Signal messages can be set to automatically delete, messages sent using the Signal platform “can also be captured through screenshots” and relying on a screenshot of Signal message with defendant attached to another text as evidence of the defendant using Signal to discuss the transaction). However, in most instances, litigants intending to offer such evidence will need to choose between doing a full collection of the mobile device or social-media account, or offering screenshots.
November 08, 2022 Practice Points
Screenshots as Evidence: Important Considerations in Preparing Your Case
Although they are often admissible in court, screenshots are rarely the ideal form to present evidence.
By Laura G. Readinger and Emma K. Diver
From an evidentiary perspective, courts tend to be lenient in allowing screenshots. For example, the authentication standard of the Federal Rules of Evidence is generally met “where the screenshots have a web address and a date stamped on them . . . [or] a witness testifies that he or she personally took the screenshots . . . [or through] affidavits from a representative from the website operator with personal knowledge [stating that the screenshot is an accurate representation of the website].” 32A C.J.S. Evidence § 1182 (2022); U.S. v. Bansal, 663 F.3d 634, 667–68 (3d. Cir. 2011); U.S. v. Davis, 918 F.3d 397, 401–03 (4th Cir. 2019) (upholding admission of photo of cell phone screen into evidence). There are two main circumstances under which a court is more likely to deny admission of screenshots into evidence.
First, courts have excluded screenshot evidence when the opponent demonstrates that the proponent may have tampered with the original evidence to ensure that it would no longer be available for trial. Edwards v. Junior State of Am. Foundation, 2021 WL 1600282, *8–9 (E.D. Tex. Apr. 23, 2021) (excluding screenshots of Facebook messages when proponent permanently deleted Facebook account); Simons v. Petrarch LLC, 2017 N.Y. Misc. LEXIS 834, *30–31 (N.Y. Super. Ct. Mar. 1, 2017) (excluding screenshot text messages when plaintiff threw away her phone containing original messages).
Second, courts have excluded screenshot evidence where the opponent demonstrates that the proponent has altered the screenshot’s contents, making it deceptive or unreliable. In Delaware, courts have found that the objecting party must offer more than mere speculation that the screenshot was tampered with or unreliable to prevail on these arguments. Purnell v. Dep’t of Ins., 2017 WL3980539, at *9 (Del. Super. Sept. 7, 2017) (finding no abuse of discretion when admitting screenshots over defendant’s objection that the screenshots were “incomplete and deceptive” because defendant offered no information on what was omitted or what “would have cured the violations”).
Although they are often admissible in court, screenshots are rarely the ideal form to present evidence. Metadata such as dates and times, full lists of recipients, document type, and other useful information is often missing in screenshots. See Twitter, Inc. v. Musk, 2022 WL 5078278, at *4 (Del. Ch. Oct. 5, 2022) (grappling with the question of when a message was sent because only a screenshot of the message was available). Litigants have argued that screenshots are unreliable because they lack such metadata, however objections on this basis can fail if the metadata was not specifically requested. See, e.g., Faulkner v. Aero Fulfillment Servs., 2020 U.S. Dist. LEXIS 99878, *12–21 (S.D. Ohio, June 8, 2020) (denying sanctions against plaintiff for failing to submit metadata in part because defendant never requested metadata).
In addition, in jurisdictions where self-collection and self-selection of responsive documents are frowned upon, a proper collection of mobile, chat, and social-media data overseen by counsel may be necessary. A full collection including metadata also allows for searching over chats and attachments, which may be required under the search protocol negotiated by the parties. As the cost to collect mobile data decreases and vendors are able to complete the process more easily, such as by remote collections, courts are likely going to begin to prefer evidence captured through forensically sound methods over screenshots. Courts may also place greater weight on evidence with metadata and other hallmarks of reliability.
At the outset of the discovery process, litigants needing to offer mobile or social-media data into evidence should consider the cost of completing a full collection, the case schedule, the importance of the data and whether the authenticity of that data is likely to be called into question, and the parties’ search protocols. And parties wishing to receive mobile metadata should explicitly request that in their document requests.
Laura G. Readinger is eDiscovery Counsel and Emma K. Diver is an associate in the Wilmington, Delaware, office of Potter Anderson & Corroon LLP.
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