Gone Viral: Social Media in eDiscovery, Part 4 – Authentication and Admissibility
Friday, June 2, 2017
Posted by: ACEDS Marketing Team
Gone Viral: Social Media in eDiscovery, Part 4 – Authentication and Admissibility
Posted on May 25, 2017 by Matthew Verga
A multi-part series on the technical and legal challenges raised by the involvement of social media sources and data in electronic discovery and how to overcome them
In the first Part of this series, we reviewed the scope and scale of the social media problem and usage patterns for the five primary social media platforms. In the second Part, we reviewed the types of materials available on those sites and how, mechanically, they can be acquired. And, in the third Part, we reviewed the legal mechanisms for their acquisition. In this Part, we turn our attention to the topic of authenticity.
Authenticity and Admissibility
In order for any of the materials you have preserved and collected to be usable at trial, they will have to be successfully admitted as evidence. The admissibility of a particular piece of evidence turns on a variety of factors, including its relevance, its potential for prejudice, its status as hearsay, etc. The most foundational of the requirements offered evidence must satisfy, is that it must be authentic, i.e. it must actually be whatever it purports to be. This is essential for the obvious reason that fake or falsified materials cannot carry any weight as evidence; fake evidence makes no fact more or less true and is, therefore, irrelevant to the proceedings.
Unfortunately, in the context of social media evidence, the question of authenticity can be a challenging one. Social media platforms, like all Internet sources, are still very new, legally speaking, and they are constantly evolving in form and content. Moreover, many individuals still view Internet sources as inherently suspect compared to older media. As a result, there has been a great deal of disagreement about when and how social media materials and other Internet sources should be authenticated and admitted.
The following classic passage about “voodoo information taken from the Internet” (from St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773 (1999)) illustrates well the resistance some felt and continue to feel towards the use of such materials:
While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity . . . . There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy.
Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation . . . .
Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form . . . .
Thankfully, the reality is not nearly so dire as this decision makes out, and slowly but surely, practitioners and courts have been getting more comfortable with these newer sources and how to assess them under the applicable rules and case law.
Next, let’s take a look at how authentication of social media materials for admission as evidence is supposed to work under the Federal Rules of Evidence.
Authenticity and the Federal Rules
The process for establishing evidentiary authenticity is laid out in Federal Rule of Evidence 901. To establish authenticity, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” The rule goes on in subpart (b) to provide a non-exclusive list of ten example ways that authenticity might be shown for various types of evidence. Among them are two example methods of particular relevance to the authentication of social media materials:
Rule 901. Authenticating or Identifying Evidence
. . .
(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
. . .
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
Subpart 901(b)(1) says that a witness with knowledge can provide authenticating testimony. For social media materials, that might be testimony from the person who created the material or a person who received the material. Unfortunately, authenticating testimony from the creator or author may not be available when the material is unfavorable evidence for that individual. For that reason, distinctive characteristics are very important.
Subpart 901(b)(4) says that “distinctive characteristics” of a piece of evidence can be considered to establish its authenticity. Distinctive characteristics are specific details of the material that make it likely the material is authentic. For social media materials, distinctive characteristics might include (but are not limited to): materials appearing on a page that is in the alleged author’s name; relevant individuals appearing in included pictures; relevant topics being discussed; distinctive slang being used; the appearance of relevant names or nicknames; the times or locations on shared posts or photos; or, the IP address of the device from which posts were made. Basically, to quote Judge Grimm’s shorthand for this rule: “If it looks like a duck, waddles like a duck, and quacks like a duck, it must be a duck.”
Even if a showing sufficient to establish authenticity is made, however, the authenticity of the evidence can still be challenged by a similar, contrary showing from another party. In the event of conflicting showings regarding the authenticity of some piece of evidence, what arises is a situation where relevance depends on a factual determination: If the underlying facts about the offered evidence are as the submitting party contends, the evidence is authentic and relevant; if instead the underlying facts about the offered evidence are as the opposing party contends, the evidence is inauthentic and, therefore, irrelevant.
Such situations are governed by Federal Rule of Evidence 104(b) Relevance That Depends on a Fact, which requires that “proof must be introduced sufficient to support a finding that the fact does exist.” As long as that required proof is offered, the original social media evidence and the proof supporting its authenticity can be put to the jury for a factual determination regarding authenticity, which will in turn determine relevance. To again quote Judge Grimm:
. . . courts historically considered admissibility of all documentary evidence on a continuum, in which clearly authentic evidence is admitted, clearly inauthentic evidence is excluded, and everything in between is conditionally relevant and admitted for the jury to determine its authenticity.
For a deeper dive into the operation and interplay of these rules, I recommend both the 2013 journal article from Judge Grimm linked above (“Authentication of Social Media Evidence”) and the more recent best practices guide he co-authored for the Rules Advisory Committee, “Best Practices for Authenticating Digital Evidence” (available starting on page 275 of the materials from the October 2016 meeting of the Advisory Committee on Rules of Evidence).
This is how the application of the rules to social media materials should work, but in practice, that has not always been the case. Some courts have instead held social media materials to a higher stand for authentication because of fears like those articulated in the “voodoo information” passage quoted above.
Upcoming in this Series
In the next Part of this series, we will continue our discussion of the issues associated with authentication of social media evidence by looking at how the authentication of social media evidence has played out in practice in the courts.
About the Author
Matthew Verga, JD
Director, Education and Content Marketing
Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A ten-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.