Federal Rule of Evidence 902(14) Will Especially Impact Social Media Evidence Preservation

On December 1, 2017, Federal Rule of Evidence 902(14) will go into effect, with a significant expected impact on social media evidence collection processes. To review, FRE 902(14) is a very important new federal statute, which provides that electronic data recovered “by a process of digital identification” is to be self-authenticating, thereby not routinely necessitating the trial testimony of a forensic or technical expert where best practices are employed, as certified through a written affidavit by a “qualified person.” A detailed discussion of Rule 902(14) can be found here.

Unlike other forms of evidence, social media is fleeting, and often examiners will collect and preserve tweets and Facebook posts that subsequently disappear from their original location. In the past five years or so, the clear majority of published court cases that address authenticity questions of electronic evidence involve social media and other internet-based evidence.  On this blog, I have documented dozens of such cases where “print screen” methods for social media and website preservation resulted in disallowed evidence or, at best, costly further litigation, in the form of motion practice and appellate proceedings. Rule 902(14) should provide the final nail in the coffin for those bad collection habits. For instance, if key social media evidence is collected through manual print screen, which is not a “process of digital identification” under Rule 902(14), then not only will the proponent of that evidence fail to take advantage of the efficiencies and cost-savings provided by the new rule, they will also invite heightened scrutiny for not preserving the evidence utilizing best practices.

In fact, Rule 902, in its current form, enumerates a variety of documents that are presumed to be self-authenticating without other evidence of authenticity. These include public records and other government documents (902 (4)), and records kept in the ordinary course of business (902 (11)). New additional subpart (14) will now include electronic data collected via a process of digital identification as a key addition to this important and highly relied upon rule of evidence.

The current law is in practice more than just a means to offer, for instance, routine business records under 902(11) into evidence in an expedited manner. It standardizes how lawyers handle and introduce those documents into evidence. Rule 902(11) is really the only way it is done — by every trial lawyer on a highly routine basis, to the point where if 902(11) was not utilized to authenticate business records, then that omission itself would likely raise significant questions about the offered evidence. So just as lawyers routinely admit business records into evidence through a written certification of a designed custodian of records under 902(11), it is expected that the authentication of social media and other internet-based evidence will also be routinely effectuated through written certifications under Rule 902(14).

Social media provides torrential amounts of evidence potentially relevant to litigation matters, with courts routinely facing proffers of data preserved from various social media websites. One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available circumstantial evidence in order to present the best case possible for the authenticity of 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, which is specifically identified as an acceptable means of “digital authentication” in the accompanying committee notes to Rule 902(14).

So with evidence collected with X1 Social Discovery , an examiner can simply write a certification attesting to the process used, including the automated generation and verification of a hash value calculation for all social media and other internet-based evidence collected. This will provide a streamlined means to authenticate social media evidence without the need of burdensome court testimony. One can easily imagine eDiscovery, forensic examiners and other legal field professionals signing thousands of social media certifications a day across the US once Rule 902(14) goes into effect – assuming they have the right software to enable the job.