While the need to authenticate evidence is not new, the types of evidence that trial lawyers need to authenticate is. Social media evidence is one example. While not the type of evidence most practitioners are accustomed to, there are best practices to keep in mind to make the process of social media evidence authentication more approachable and fruitful.
When seeking to admit evidence, both the Federal and California rules of evidence require the evidence to be what the proponent claims it to be. This standard can be problematic with social media evidence given its pseudonymous nature and the potential for someone other than the account holder posting and commenting (whether through consent or fraudulent means). Authentication of social media evidence requires the proponent to prove what was actually on the website, whether the document or testimony accurately reflects that and whether the evidence sought to be admitted is attributable to the author. Questions like this may be answered through traditional methods of evidence authentication, as well as through more recent methods.
Through the direct testimony of a witness with knowledge, one may establish that the evidence is what it is claimed to be. The witness can testify, among other things, 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.
Authentication of social media evidence through circumstantial evidence requires the focus to be on distinctive characteristics within the document, post or comment that identifies the author. There are now a number of cases where evidence was authenticated through distinguishing language, slang, emoticons, nicknames and other content uniquely known to be attributed to the person one contends is the author.
Searching the actual computer or device of the person who allegedly posted or commented on a social media page may prove to be very helpful. With the help of an expert or vendor, Internet history and hard drives may be searched to determine whether that particular computer or device was used to generate the profile in question, as well as the post or comment associated with it. When utilizing this method, documenting the process is imperative for evidentiary purposes.
Subpoena to Provider
While most social media providers have made it clear they will not turn over user data absent a court order, in some instances, providers will abide by a discovery subpoena. A subpoena to a provider will enable you to obtain information that links the user to the profile in question.
These methods of authenticating social media evidence are not the only available ones, but they are a great starting point for this new and emerging type of evidence. Utilizing these best practices will put you in a position of properly authenticating those salacious social media posts that are all too often all that is needed to discredit a witness or even prove the case.
Neda Shakoori is an attorney with McManis Faulkner. Her practice focuses on civil litigation with an emphasis on commercial and business law matters. She is currently leading the firm’s eDiscovery Initiative and oversees all ESI-related issues in the firm’s cases. She also presents MCLE programs relating to eDiscovery. For more information, please visit mcmanislaw.com.