Recently, the Advisory Committee on the Federal Rules of Evidence published an important treatise, “Best Practices for Authenticating Digital Evidence.” The Advisory Committee is an arm of the Judicial Conference of the United States, which drafts all proposed Federal Rules of Civil Procedure and Evidence, which the US Supreme Court and Congress ultimately ratify. Their advisory committee publications are given great weight by the courts in applying the Federal Rules of Evidence. In fact, in the official minutes from its April 29, 2016 meeting, the Committee noted it considered whether to draft new specific Federal Rules of Evidence to govern authentication of electronic evidence, opting instead to draft the official best practices guide to serve as an accompaniment to the Federal Rules:
“The Committee concluded that amendments regulating authenticity of electronic evidence would end up being too detailed for the text of a rule; they could not account for how a court can and should balance all the factors relevant to authenticating electronic evidence in every case; and there was a risk that any factors listed would become outmoded by technological advances.
The Committee unanimously concluded, however, that publication of a best practices manual on authenticating electronic evidence would be of great use to the bench and bar. A best practices manual can be amended as necessary, avoiding the problem of having to amend rules to keep up with technological changes. It can include copious citations, which a rule or Committee Note could not.”
Federal District Court Judge Paul Grimm is the lead author on the best practices guide. Judge Grimm is widely seen as the one of the most influential judges concerning electronic discovery issues. He is known for several ground breaking decisions in the field including Lorraine v. Markel (2007), and Victor Stanley, Inc. v. Creative Pipe Inc. (2008), and The American Lawyer profiled him as one of the top 5 judges at the forefront of eDiscovery.
The best practices guide includes a very notable section dedicated to Internet website and social media evidentiary authentication, noting that “Parties have increasingly sought to use social media evidence to their advantage at trial. A common example would be a picture or entry posted on a person’s Facebook page, that could be relevant to contradict that person’s testimony at trial.” However, “authenticity standards are not automatically satisfied by the fact that the post or the page is in that person’s name, or that the person is pictured on the post.” The guide notes that where affirmative direct testimony of the actual author is not available (which is often in the case of “smoking gun” type evidence), then circumstantial evidence is required for authentication.
As noted in the guide, absent uncontroverted and cooperative witness testimony, lawyers must turn to circumstantial evidence to help establish an evidentiary foundation for social media evidence. The guide provides many examples of circumstantial evidence that can be used to authenticate social media evidence. For instance metadata is particularly important as a “distinctive characteristic” under Rule 901(b)(4), as social media items contain a wealth of key metadata that represent or can establish “internal patterns or other distinctive characteristics” of the social media items in question.
In such situations, the testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the evidence presented is what the proponent asserts. See, Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and also referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence).
One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” or “additional confirming circumstances,” in order to present the best case possible for authenticating social media evidence collected with the software. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve social media posts and general web pages in a thorough manner with best-practices technology specifically designed for litigation purposes. There are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries, or any combination of them could provide unique circumstantial evidence that would establish foundational proof of authorship.
The bottom line is that, as reinforced by the Federal Rules Advisory Committee, collection and preservation of all the metadata and other critically important circumstantial evidence, which can be effectively obtained with tools like X1 Social Discovery, is absolutely essential to an effective social media discovery practice.
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