“Making (It) Facebook Official” - Authenticating and Admitting Social Media Evidence
Sierra J. Spitzer, Partner
Schwartz Semerdjian Cauley & Moot LLP
According to a national survey of 1,520 adults conducted by Pew Research Center in 2016, 79% of Americans who use the internet are Facebook users, up 7% from the survey results from 2015, and 76% of those Facebook users report that they visit the site on a daily basis. http://www.pewinternet.org/2016/11/11/social-media-update-2016/#fn-17239-1. Thus, suffice it to say that Facebook has become a staple of modern day life for the majority of Americans. It is a way to stay connected with friends and family across the world, a place to share photos and announce life events (after all, it’s not official until it’s “Facebook official”), a forum for topical discussion and debate, a news and media source and just mindless entertainment (“You know you’re a child of the 80s if” quizzes, cat videos, etc.). It is also a treasure trove of potential evidence for legal matters of all kinds. However, making use of this evidence is not as simple as simply hitting a “share” or “like” button. Rather, those wanting to use this social media evidence must first overcome the hurdles of preservation, authentication and admissibility.
Preserving the Evidence
When litigation is being contemplated, there may instinctively be a desire to want to advise a client to “clean up” a social media page and take down potentially damaging photos, posts or messages on Facebook, Instagram, Twitter, etc. However, doing so can put attorneys (and their clients) between a rock and a hard place because what is best for the client may likely conflict with the rules regarding spoliation and suppression of evidence—the violation of which can result in serious consequences. As such, during the pre-litigation phase, it is generally advisable to have your client leave the content as is and use the highest privacy setting available so that the information is not accessible by others. Once in litigation, however, information stored on Facebook or other social media platforms qualifies as electronically stored information and is discoverable. EEOC v. Simply Storage Management, LLC, 270 R. RD. 430 (S.D. Ind. 2010). Thus, care must be taken in the pre-litigation stage to prevent altering or destroying the metadata associated with the digital evidence. Simply taking screen shots (even with date and time stamps) will likely be considered insufficient authentication due to the lack of metadata. To properly preserve the digital aspect of the information, forensic images should be made before anything is removed or deleted.
Obtaining the Evidence
While the most direct route may seem to be to send third-party subpoenas to the social media platforms, their ability to produce documents is somewhat limited by the Stored Communications Act, 18 U.S.C. Sections 2701-2712, which prevents the disclosure of the content of private parties’ stored electronic communications. Generally, the platforms will disclose only basic information, like a user name, but no substantive content. It does not hurt though to nonetheless send a preservation letter to all social media platforms at issue.
The most direct way to obtain social media related discovery is to request it straight from the user and to be as specific as possible. For example, if there are communications between certain people or on certain topics, ask for those specific documents. Special interrogatories and deposition can be used to find out which social media platforms the person uses, how often, whether anyone else has access, logon names and whether any additions or deletions have been made and when. Establishing this groundwork is critical to authenticating this information and ultimately getting it admitted into evidence.
In terms of the scope of potentially discoverable information, the courts are still somewhat divided when it comes to the issue of privacy and social media platforms like Facebook. For the most part, the courts have rejected the notion that materials posted on social media are privileged, even when access to same is restricted by the user. Mail-hoit v. Home Depot U.S.A. Inc., 285 R.R.D. 566, 570 (C.D. Cal. 2012) (content posted to social networking sites not privileged or protected.) That being said, the courts are equally reluctant to just grant unfettered access to a Facebook profile without there first being a preliminary showing of relevance. Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012).
If you are able to obtain agreement from the user to the production of the entire Facebook profile, there is now an easy way to obtain this data. Facebook now allows its users to download their entire profile – including an activity log, timeline postings, comments and other interactions. The process begins with going to the Facebook Account Settings page and then clicking on a link labeled “Download a copy of your Facebook data.” Next, you will be taken to a new page where you click a button labeled “Download Archive.” Facebook then begins the automated process of gathering and packaging the information. Detailed instructions on downloading information from Facebook can be found on the Facebook website at https://www.facebook.com/help/212802592074644. Once the archiving process is complete, Facebook sends an email to the email address registered with the account.
Authenticating the Evidence
As touched upon above, authentication is key to getting social media evidence admitted. There are two widely recognized approaches to the authentication process: the Maryland standard (Griffin v. State, 19 A. 3d 415 (Md. 2011)) and the Texas standard (Tienda v. State, 358 S.W. 3d 633, 638, 642 (Tex. Crim. App. 2012)).
Under the stricter Maryland approach, social media evidence may only be authenticated through testimony from the author of the social media post; hard drive evidence or internet history from the purported author’s computer; or information obtained directly from the social media site itself. By contrast, in Texas, parties are allowed to use any form of evidence to authenticate the social media so long as it is sufficiently demonstrated to the judge that a jury could reasonably find that the evidence is reliable and authentic.
California’s approach to authentication of social media evidence is more similar to that of Texas and includes three main levels of inquiry: 1) What was actually on the post?; 2) Does the exhibit or testimony accurately reflect what appeared on the post?; 3) If so, is it attributable to the source that the proponent claims? See Lorraine v Markel Am. Ins. Co. (D Md 2007) 241 FRD 534, 555; Authentication of Social Media Evidence (2013) 36 Am J Trial Advoc 433, 446.
These steps can be accomplished in a variety of ways. One option is direct testimony in which a witness, with knowledge, can establish that the evidence is what it is claimed to be, i.e. testimony that he/she is the account holder, the username on the account is one he/she selected and utilized, he/she posted the comment, “John hacked into X Bank’s system yesterday,” he/she posted the comment on a particular date, and the document is an accurate record. Another option is circumstantial evidence such as distinctive characteristics within the document, post or comment that identifies the author (i.e. distinctive language, use of slang, emoticons, nicknames and other content unique to the purported author). For example, in People v. Valdez, the trial court admitted evidence of a Myspace page that was asserted to belong to the defendant. (Cal. App. 4th 1429, 1434-37 (2011).) On appeal, the appellate court stated “like any other material fact, the authenticity of a document may be established by circumstantial evidence.” (Id. at 1435.) Despite not having testimony from defendant authenticating the Myspace page, the appellate court found that a reasonable trier of fact could conclude from postings of personal photographs, communications and details, that the social media profile belonged to the defendant. (Id.at 1437.) A third option is to hire an expert to conduct an actual inspection of the internet history or hard drive of the computer or device belonging to the purported author. Finally, as mentioned above, a subpoena can be sent directly to the provider; however, their response may be somewhat limited due to the Stored Communications Act.
Admitting the Evidence
Social media evidence, either at trial or in a summary judgment motion, is subject to the standard evidentiary rules including 1) relevance; 2) if relevant, has it been properly authenticated; 3) if offered for truth, is it hearsay, and if so, is it covered by an applicable exception; 4) is the evidence being offered an original or duplicate, and, if the latter, is there admissible secondary evidence to prove the content; and 5) does the probative value outweigh the danger of undue prejudice. Again, as stated above, out of all of these factors, authentication is particularly crucial.
Between Facebook, Instagram, Snapchat, Twitter and the like, for better or worse, social media has turned many people’s lives into the proverbial open book. Accordingly, as litigators it is important to have a firm grasp on how best to handle the information produced by this powerful research tool.