By John Patzakis
As succinctly noted by The Florida Bar Association in its publication, Florida Law Journal: “Social media is everywhere. Nearly everyone uses it. Litigants who understand social media–and its benefits and limitations–can immeasurably help their clients resolve disputes…it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.“ However, the FLJ warns that “If not properly researched, preserved, and authenticated, the best social media evidence is worthless.” “Social Media Evidence: What You Can’t Use Won’t Help You” (2014) Florida Law Journal, Volume 88, No. 1.
In fact, many courts have rendered “smoking gun” and other key web-based evidence worthless because the proponent offered a simple printed a copy of a social media webpage, and thus failed to meet evidentiary authentication requirements. Notable recent cases with such rulings include Linscheid v. Natus Medical Inc. 2015 WL 1470122, at *5-6 (N.D. Ga. Mar. 30, 2015), (finding LinkedIn profile page not authenticated by declaration from individual who printed the page from the Internet); Monet v. Bank of America, N.A., 2015 WL 1775219, at *8 (Cal Ct. App. Apr. 16, 2015), (memorandum by an unnamed person about representations others made on Facebook is at least double hearsay” and not authenticated), Moroccanoil vs. Marc Anthony Cosmetics, 57 F.Supp.3d 1203 (2014), (Facebook screenshots inadmissible in a trademark infringement without supporting circumstantial information).
Commonwealth v. Mangel 181 A.3d 1154 (2018), is a must-read case that provides an instructive and detailed case study on the perils of improperly collecting social media evidence for court. In that case, the Superior Court of Pennsylvania addressed the standard for admissibility of social media posts and ultimately disallowed into evidence a social media post presented by the prosecution as a simple screen shot. In Mangel, the State charged the defendant with aggravated assault and harassment and sought, in a pre-trial hearing, to introduce evidence of an image of bloody hands posted to Facebook, as well as messages allegedly authored by the defendant. The Facebook account at issue bore the defendant’s name, hometown and high school, which the prosecution argued was sufficient to authenticate the proffered evidence.
Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the Defendant’s name was not enough to allow the evidence in. Instead, the court noted that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” Metadata is a key form of circumstantial evidence, and the Mangel court noted the conspicuous omission of two key metadata items: the date the post was created, and account ID:
“A thorough review of the Facebook posts and messages themselves raises specific issues. First, the evidence presented by the Commonwealth does not indicate the exact time the posts and messages were made. The incident which brought about the instant criminal charges occurred allegedly on June 26th, 2016, according to the Criminal Information. The lack of a date and timestamps raises a significant question regarding the connection of the posts and messages to the alleged incident on June 26th, 2016. Furthermore, the ‘Tyler Mangel’ who allegedly authored the Facebook posts and messages does not specifically reference himself in the incident on June 26th, 2016; rather, other individuals, many of them who are not directly involved in the instant criminal case, reference a ‘Tyler Mangel’ in response to a post made and in subsequent conversations about an alleged assault.”
By using best practices instead of print screen, practitioners can avoid the falling victim to outcomes like in Mangel. A party can authenticate electronically stored information (“ESI”) per Rule 901(b)(4) and Rule 902(14) with circumstantial evidence that reflects the “contents, substance, internal patterns, or other distinctive characteristics” of the evidence. Many courts have applied Rule 901(b)(4) by ruling that metadata and file level hash values associated with ESI can be sufficient circumstantial evidence to establish its authenticity, including Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.Md. May 4, 2007.
For further analysis on additional case law, applicable rules of evidence and practice tools, X1 has prepared a detailed white paper on evidentiary authentication of social media and other web-based evidence. You can access this valuable resource here.