Show Me The Evidence – Use of Social Media Information at Trial

A defendant in an employment action discovers through Facebook that a plaintiff has lied about her discrimination claim. The information essentially undermines plaintiff’s entire claim. However, such information does not make it to a factfinder at trial unless the evidentiary foundations can be established — proof of authorship and timeliness. These evidentiary foundations are not easy to establish in the ever-changing medium of social media. The anonymity offered by some social networking sites may be what makes them attractive to users, but it also makes establishing authorship of content difficult. Similarly, social media sites are constantly changing, as users can add, remove or edit content at any time. As a result, recreating a post or a profile from a particular moment in time can be difficult, if not impossible, depending on how a partciluar site functions.

In discovery, not only should litigants work to identify relevant social media, counsel should also seek to discover the facts that will be necessary to introduce social media evidence at trial. This includes information that may establish authorship, such as nicknames used by a party which may mirror an online profile, the identity of users who have viewed or commented on social media content and information relating to the inner-workings of a social media site. This information will aid in authenticating social media evidence and ensuring its admission into evidence.

At trial, the rules of evidence will determine whether electronic evidence, including social media, is admissible. In the federal courts, Federal Rule of Evidence 901 controls authentication of evidence. Rule 901 clearly places the burden of authentication on the proponent of the evidence. To satisfy Rule 901’s requirement that a document is what its proponent says it is, authorship and timeliness of social media content must be confirmed. Authorship may be established by testimony from the author or recipient, or other evidence which helps to confirm authorship, such as testimony that an individual’s commonly used nickname matches the name asociated with the online profile which authored the content. To confirm timeliness, data from a social media site may be available to confirm when information was posted and/or viewed. If data is not available from a site, witness testimony may be sufficient to confirm the time when social media content was published or viewed, although establishing timeliness may prove difficult.

As use of social media proliferates, courts will increasingly need to resolve challenges to the admissibility of social media. While the use of certain social media, like Facebook and MySpace, may already be familiar to courts, the ever-evolving nature of social media sites and applications make it difficult (if not impossible) to promulgate hard and fast evidentiary rules. Rather, the application of evidentiary rules to social media must remain flexible and fluid to ensure that relevant and critical information is available to the factfinder.

Stephen J. Finley, Jr. is an Associate on the Gibbons E-Discovery Task Force.
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