Monitoring and Capturing Relevant Social Media Evidence
While litigators can use formal discovery to seek relevant social media evidence from the opposing party, there are drawbacks to relying exclusively on this method of information gathering because the defending party has control over when and what it produces short of a motion to compel or sanctions motion. See, e.g., Thurmond v. Bowman, No. 14-cv-6465W, 2016 WL 1295957, at *7–11 (W.D.N.Y. Mar. 31, 2016) (deciding spoliation motion and finding no spoliation despite deletion of some social media posts). Likewise, a subpoena to Facebook, Twitter, or any other social media hosting site may be met with silence because the Stored Communications Act prevents such sites from disclosing the contents of an account to any nongovernmental entity, even pursuant to a subpoena. 18 U.S.C. § 2702. Accordingly, it may be more efficient and fruitful for a litigator to informally monitor public social media accounts and capture relevant evidence, especially if the facts of the case are still developing.
Best practices for capturing social media evidence require, at a minimum, (1) keeping a log or record of the date and the source of the evidence and (2) using a tool that accurately captures the content (whether video, image, or text). Careful documentation is essential to ultimately proving authenticity, especially if the post has changed over time, either passively, because social media websites are dynamic, or actively, because someone deleted or edited the post. Accuracy is also important, and printing to a file in portable document format (PDF) may jumble text and produce an inaccurate copy; tools like Snagit, Microsoft’s “snipping tool,” or Apple’s “grab utility” may produce a better copy. Capturing can be done in-house with properly trained litigation support professionals or through a vendor, such as X1 Social Discovery or Page Vault. In collecting social media evidence, keep in mind the ultimate goal—will it be used as evidence in pretrial motions or for eliciting testimony during depositions, or does your case depend on it being admitted at trial? If trial is the goal, use a vendor that is able to capture relevant metadata and document the chain of custody to have a better chance of proving authenticity.
Using Social Media Evidence to Obtain a Temporary Restraining Order or Preliminary Injunction
Because public social media evidence can be gathered and preserved without formal discovery, it may be useful, and even critical, to early motion practice. For example, a company’s Facebook marketing may provide the facts necessary to establish (or refute) a prima facie case for trademark infringement. Federal courts typically relax the rules of evidence for these motions, making the use of social media evidence—however captured—easier. See, e.g., Kotori Designs, LLC v. Living Well Spending Less, Inc., No. 2:16-cv-637-FtM-99CM, 2016 WL 4375274, at *1 n.3 (M.D. Fla. Aug. 17, 2016) (relying on an undated and unauthenticated phone screenshot of a Facebook page and acknowledging that “[a] court deciding a motion for a temporary restraining order or a preliminary injunction may rely on evidence that might otherwise be inadmissible, so long as ‘the evidence is appropriate given the character and objectives of the injunctive proceeding’”) (quoting Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995)).
Using Social Media Evidence in a Motion to Dismiss
Social media evidence may also refute allegations in a complaint in the context of a motion to dismiss under Rule 12(b)(6). Bringing outside evidence to a federal court’s attention at the motion to dismiss stage, however, requires (1) that it be incorporated by reference in the complaint and (2) that the other side does not challenge its authenticity. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). If the evidence is not incorporated by reference into the complaint, a court may deem it a motion for summary judgment (see below). Still, a litigator should consider the possibility of requesting judicial notice of those social media posts that are arguably incorporated by reference into the complaint.
Using Social Media Evidence in Discovery and Depositions
If nothing else, litigators should take the time to investigate a deponent’s relevant public social media prior to taking his or her deposition. The converse, of course, is also true, and an attorney defending a deposition should be sure to thoroughly review the deponent’s social media presence in preparation. The social media evidence will provide areas of questioning for the deposition, and the attorney should use the opportunity to establish ownership or authorship of certain social media accounts and the authenticity of specific social media evidence, which can then be used to establish authenticity at trial. Note: If not done during the deposition, requests for admission or interrogatories can provide a second opportunity to establish a factual basis for authenticity.
Using Social Media Evidence at Summary Judgment and Trial
For summary judgment and trial, the proponent of social media evidence must establish admissibility. JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (at summary judgment, proponent of evidence must show that “underlying evidence could be provided in an admissible form at trial”).
First, the proponent of the social media evidence must overcome the rule against hearsay by establishing that the evidence (1) is not hearsay, (2) is presented for a purpose other than the truth of the matter asserted, or (3) meets an exception under Rules of Evidence 803, 804, or 807. Social media posts by the opposing party are relatively easy—they will most likely be deemed statements by an opponent party and therefore not hearsay under Rule 801(d)(2). Statements by a third party are more difficult. For example, it may be useful to put forward evidence of social media interactions between a party and its customers—say, a company’s support staff addressing customers’ complaints about a defect in the product. These customer statements are hearsay but can arguably be offered for a purpose other than the truth, such as establishing that a company was on notice of the customers’ complaints. Of course, they could not be offered to prove the product was in fact defective.
Second, the proponent of the social media evidence must establish authenticity. The Third Circuit had held that social media posts are not “self-authenticating” under Rule 902(11). United States v. Browne, 834 F.3d 403, 405 (3d Cir. 2016) (doubting that social media evidence could be a business record); see also Linscheid v. Natus Med. Inc., No. 3:12-cv-76-TCB, 2015 WL 1470122, at *5–6 (N.D. Ga. Mar. 30, 2015) (in context of summary judgment, finding inadmissible printouts of a LinkedIn profile page that were attached to an attorney declaration). However, under a traditional Rule 901 authenticity analysis, the Third Circuit concluded that circumstantial evidence, including testimony that the defendant owned the Facebook account and had corresponded with the victims, established the authenticity. Browne, 834 F.3d at 413–14 (citing similar decisions by the Second, Fourth, and Fifth Circuits).
The importance of investigating an opposing party’s social media presence (and a client’s social media presence) is now well known and cannot be overstated. The key to effective use of social media evidence is to anticipate how that evidence will be used and then monitor and capture the evidence accordingly.
Rose Leda Ehler is with Munger, Tolles & Olsen LLP in Los Angeles and San Francisco.