social media evidence
TRANSCRIPT
Social Media EvidenceRod Souza, District Court Judge
American Users of Social Media
Pew Research Center 2021
Facebook data 7 in 10 American users
visit Facebook at least
once a day
77 % of American women
use Facebook; 61 % of
American men use
77% of Americans age
30-49 use Facebook; 50%
age 65 or older use
Urban v. rural- evened
out
Roadmap
How to obtain the evidence
Client Counseling/Discovery
Evidentiary issues
Stored Communications Act (SCA)
18 USC 2701 et seq
Enacted in 1986
Limits disclosure of stored communications maintained by third-party providers
Applied to social media companies in Crispin v. Christian Audigier, 717 F.Supp.2d 965 (2010) “[T]he court is compelled to apply the voluminous case law cited above that establishes that such services [Facebook and MySpace] constitute ECS [Electronic Communication Service].”
Twitter is an ECS and RCS. Shenwick v. Twitter, 2018 Northern District of CA
Civil Matters “Federal law does not
allow private parties to obtain the content of communications (example: messages, timeline posts, photos) using subpoenas. See the Stored Communications Act, 18 U.S.C. § 2701 et seq.” Facebook Help Center
Case Law
("[C]ourts have repeatedly held that providers such as Yahoo! and Google may
not produce emails in response to civil discovery subpoenas."); see also In re
Facebook, Inc., 923 F. Supp. 2d 1204, 1206 (N.D. Cal. 2012) (quashing subpoena
issued pursuant to 28 U.S.C. § 1782 because "civil subpoenas may not compel
production of records from providers like Facebook"); In re Subpoena Duces
Tecum to AOL, LLC, 550 F. Supp. 2d 606, 609 (E.D. Va. 2008) ("[T]he plain
language of the [Stored Communications Act] prohibits AOL from producing the
[plaintiff's] e-mails, and the issuance of a civil discovery subpoena is not an
exception to the provisions of the [Stored Communications Act.]"); Viacom Int'l
Inc. v. YouTube Inc., 253 F.R.D. 256, 264 (S.D.N.Y. 2008) (granting [*9] protective
order and denying motion to compel production from YouTube).
Katz v. Liberty Power Corp., LLC, 2019 U.S. Dist. LEXIS 30901, *8-9, 2019 WL 957129
Discovery
Parties to litigation may satisfy party and non-party discovery
requirements relating to their Facebook accounts by producing and
authenticating the content of communications from their accounts and
by using Facebook’s "Download Your Information" tool, which is accessible
through the Settings drop down menu.
“A provider described in subsection (a) may divulge the contents of a
communication--with the lawful consent of the originator or an
addressee or intended recipient of such communication, or the
subscriber in the case of remote computing service.” 18 USC 2702(b)(3).
ARM 24.5.324 “. . . ) to produce and permit the party making the
request, or the party's agent, to inspect and copy any designated
documents or records, or to copy, test, or sample any tangible things,
which may be relevant and which are in the possession, custody, or
control of the party upon whom the request is served(Make sure a
relevant timeframe is designated)
Preservation
Prevent deletion, removal, or editing of any data stored on device(s) or cloud based storage.
Email providers, document storage cites, backup storage sites, social media sites. (Including but not limited to language)
Physical devices used to capture or store photographs, videos, or make/receive communications
Broad language to capture accounts using actual name, pseudonyms, or business names.
Geo location data from photographs and posts
Discovery positions No expectation of privacy in social media with “private” setting
Discovery of social media focuses on relevancy- is it reasonably
calculated to lead to admissible evidence?
Obtain public information to support basis for request. “[Defendant]
has not come forward with any evidence that the content of either of
the plaintiff’s public postings in any way undermine their claims in
this case.” Keller v. Nat’l Farmers Union Prop. & Cas., 2013 U.S. Dist.
Lexis 452 (Dist. of Montana)
“[A] party seeking discovery of social networking information must
make a threshold showing that publicly-available information on those
sites undermines the non-movant's claims." Tucker v. Momentive
Performance Materials USA, Inc., 2016 U.S. Dist. Lexis 187413.
Defendant has already demonstrated through the information it gathered
from Plaintiff's once-public personal account that Plaintiff posted about his
social life, personal relationships, and engagement in leisure activities.
Sanchez v. Albertson’s, 2021 U.S. Dist. LEXIS 154191.
Client Counseling
Is social media
presence a good idea
during litigation?
Frank discussion
about all social media
and activity level,
Nucci v. Target, 162
So.3d 146 (Fla. 4th
Dist. Ct. App. 2015)
Filter communication
(Even Snapchat)
Identify “friends” and
cross-reference with
potential witness lists
and attorneys
Client counseling
Do not advise deletion. Rule
3.4- “unlawfully obstruct
another party’s access to
evidence” See Allied
Concrete v. Lester, 285 Va.
295 (2013)
Do not engage in or solicit
“fake friending” of opposing
party. Rule 4.2- “a lawyer
shall not communicate about
the subject of the
representation with a person
the lawyer knows to be
represented by another
lawyer”
Unfriending/Private
Presenting Social Media Evidence Two primary issues to address:
1. Authentication
2. Hearsay
You must lay a proper foundation-“Foundation is simply a loose term for preliminary questions designed to establish that evidence is admissible.” A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630 (7th Cir. 2001)
In making determinations on admissibility of evidence, the rules of evidence are not applicable. M.R.Evid. 104(a)
“[I]n determining whether adequate foundation exists for the admission of evidence, the plain language of the Rule authorizes a trial court to consider any evidence "including hearsay and other evidence normally inadmissible at trial.“ State v. Delaney, 1999 MT 317, 2917 Mont. 263, 991 P.2d 461.
Presenting the
Evidence
Authentication- “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” M.R.Evid. 901(a)
Not self-authenticating under Rule 902
Authentication concerns This type of evidence is easily created
and/or manipulated. “Authentication concerns arise in regard to printouts from Facebook "because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password," and, consequently, "[t]he potential for fabricating or tampering with electronically stored information on a social networking" site is high.” State v. Gordon, 114 N.E.3d 345 (8th App. Dist. Ohio 2018).
Rule 901 Authentication
(1) Testimony of Witness with Knowledge.
“Authentication or identification may be
accomplished by a witness' testimony that a
matter is what it is claimed to be.” Rule
901(b)(1), M. R. Evid., State v. High Elk,
2006 MT 6.
(4) Distinctive Characteristics and the Like.
Appearance, contents, substance, internal
patterns or other distinctive characteristics,
taken in conjunction with circumstances.
Rule 901(b)(4) M.R.Evid.
Authentication “Courts lag behind technology for good
reason. As society adapts to the digital age,
courts are growing more comfortable with
using circumstantial evidence to
authenticate social media content.” State v.
Green, 830 S.E.2d 711 (S.C. Ct. App. 2019)
Sender admits authorship to another
Sender seen composing the
communication
Internet provider or cell provider
establish communication originated from
sender’s device
Communication contains information only
the sender could be expected to know
Sender responds to an exchange in a
manner as to indicate circumstantially
he/she was the author of the
communication
Authentication
Example
You are a Facebook “friend” with the Defendant?
You’ve been a friend for 5 years?
You’re familiar with the Defendant’s writing style and word phrasing?
You’re familiar with the typical subjects Defendant posts on?
Defendant typically signs off each post with a hashtag? And that is hashtag “lovin life?”
Defendant typically posts between 6pm and 8pm?
After you saw this post, you discussed the same topic with Defendant two days later, correct?
During that discussion, Defendant acknowledged the post?
Remember Rules 101 and 104(a) on your foundational questions
Posted photographs/videos The person who posted the photograph may not have
taken the photograph
“[W]e have held--albeit before adopting Montana's current rules of evidence--that HN8 a photograph may be proved to be a correct representation by a witness other than the person who took the photograph.” High Elk, citing Pilgeram v. Haas (1946), 118 Mont. 431, 449, 167 P.2d 339, 348
[P]hotographs, including social-media photographs, are authenticated by 'evidence sufficient to support a finding that the [photograph] is what the proponent claims it is.", United States v. Farrad, 895 F.3d 859 (6th
Cir. 2018), citing United States v. Thomas, 701 F.App’x414 (6th Cir. 2017).
For purposes of authentication, distinguish between uploaded and tagged- resolve these issues in pretrial discovery
If geo location of the photo is important, request the actual image to obtain accurate data you are seeking-information may be scrubbed by the social media site.
Utilize discovery
process
Foundational issues can
be mitigated during
discovery.
Seek foundational
information during
deposition, through
interrogatories, or RFAs.
Rules of Evidence do not
apply to foundation
This Photo by Unknown Author is licensed under CC BY-ND
Hearsay Issues “Something someone else said” is
NOT the Hearsay Rule
“A statement is a . . . “written assertion.” Rule 801(a)(1)
“Hearsay is a statement, other than one made by the declarant at the trial or hearing, offered in evidence to PROVE THE TRUTH OF THE MATTER ASSERTED.” Rule 801(c)
Questions, commands, and threats are generally not hearsay. “Like questions and commands, threats are commonly not hearsay, because they do not make assertions capable of being proved true or false.” State v. Scott, 2017 UT App 74.
The statement is offered against the party and is the party’s own statement in either an individual or a representative capacity. 801(d)(2)(A)
Statement by a person authorized by the party to make a statement concerning the subject. 801(d)(2)(C)
Statement by the party’s agent . . . concerning a matter within the scope of the agency or employment. 801(d)(2)(D)
“Courts routinely find that statements on the website of a party to a lawsuit are considered an admission by a party opponent.” Bouton v. Ocean Props., 2017 U.S. Dist. Lexis 174989.
Hearsay Exceptions
Rule 803(3) “A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.” State v. Tieman, 2019 ME 60 (holding some of murder victim’s Facebook messenger posts were admissible under Rule 803(3)).
Rule 803(1) and (2) Present sense impression/Excited Utterance- based on the timing of the post or statement, this exception may be applicable
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