Product Liability and Mass Tort Section

by John B. Kearney and William Reiley

#SocialMediaEvidence has become a trending topic as lawyers dig for digital dirt among various social media sites during pretrial discovery. Often, there is more smoke than fire, but now and then the digital evidence that is uncovered on Facebook, Instagram, LinkedIn, and a host of other sites can be quite powerful and worth all the digging. What defense lawyer hasn't longed to discover photographs of the plaintiff with alleged back problems doing all sorts of physical activities a week after an accident?

However, sometimes lawyers are so caught up in the chase for social media evidence that they don’t reflect on what they will need in order to make sure the evidence is admissible. To avoid the trending topic of #LegalMalpractice, lawyers need to collect social media evidence in discovery in a way that enables them to overcome any authentication or hearsay objections when they try to use the evidence in court.

Authentication

New Jersey's Authentication Rule, at N.J.R.E. 901, provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." In an era of fake news, phishing emails from nefarious hackers, and other such examples of the dark side of technology, authentication of social media evidence is important because courts are skeptical of the credibility of social media posts. Due to that appropriate concern, courts require that such evidence be authenticated through direct or indirect evidence to prove it is genuine.

There are multiple ways to authenticate social media evidence. Consider the following scenario as an example: An altercation is being litigated, and a purported author posts a captioned photograph of a weapon; the caption implicates an individual in the altercation that is the subject of the litigation. The easiest (but the most unlikely) way to authenticate this evidence is to have the purported author admit (during a deposition or through requests for admissions) to posting the photograph and caption. Another way, albeit pricey, would be to have an information technology (IT) forensic expert and/or photographic expert testify that the captioned photograph in question originated from the plaintiff or defendant (as the case may be), and has not been altered. The expert would need to provide factual specificity, along with his or her expertise, about the process by which the electronically stored information in question was created, acquired, maintained, and preserved without alteration or change.¹

A simpler way to authenticate such evidence is by showing that: 1) the profile picture on the social media account where the digital dirt was found depicts the purported author; 2) the social media account includes other identifying information of the purported author such as address, birth date, name of spouse, etc.; or 3) the post includes information that only the purported author would know, like engaging in a back-and-forth twitter conversation with an ex-boyfriend about hitting his girlfriend with a shoe (which is the subject of a case discussed below). All of these topics could probably be covered in a deposition (assuming the witness was forthright and truthful), and a pending criminal proceeding did not create Fifth Amendment concerns about testifying. But that might not be the end of the story, since not every state permits the use of such indirect evidence to authenticate social media evidence.

The authors will leave the best ways to capture the electronic information trails that social media posts leave behind for another article. Suffice to say there are programs, such as X1 Social Discovery, that preserve metadata that can be analyzed by an IT forensic expert of social media posts. Some examples of metadata that can be captured for electronic documents include a file name, location (e.g., directory structure or pathname), format or file type, size, dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and permissions (e.g., who can read the data, who can write to it, who can run it).² In appropriate situations, taking a screenshot or printing out the page in question might suffice to use in a deposition. For now, however, the focus will be on the evidentiary hurdles at trial of authentication and hearsay.

Two Approaches to Authentication

Two distinctive approaches to authenticating social media evidence have developed in recent years: The Maryland approach that is articulated in Griffin v. State,³ (adopting a higher standard to authenticate social media evidence), and the Texas approach as set out in Tienda v. State,⁴ (adopting a lower standard to authenticate social media evidence). Under the Griffin/Maryland approach, there is a presumption that the social media posting being moved into evidence is falsified, and thus can only be authenticated if the proponent sets forth sufficient “distinctive characteristics” that connect the author to the post. The Griffin court suggested a non-exhaustive list of three potential methods of authentication: 1) asking the author if he or she drafted the post, 2) searching the author’s browsing history or computer hard drive for traces of the post, or 3) obtaining evidence directly from the social networking site to prove the author drafted the post.

Texas, unlike Maryland, does not impose this presumption, and permits circumstantial evidence to authenticate social media evidence and allow for a reasonable juror to find the evidence was authored by a particular individual. Other states, such as Delaware,⁵ have adopted the Texas approach. A close look at Parker v. State highlights the rationale behind the Texas approach as articulated by Delaware’s highest court.⁶

In Parker, the defendant claimed she was acting in self-defense during a physical altercation. However, Facebook posts immediately following the altercation discredited her self-defense argument. The state sought to authenticate these posts, as well as information from her Facebook account including her profile picture, name, and the time and date of the posts at issue.

In admitting the evidence, the Parker trial court held (and the Supreme Court of Delaware affirmed) that the defendant's Facebook posts were properly authenticated under D.R.E. 901(b). The court explained that although the judge is the gatekeeper for the admissibility of social media evidence, the jury ultimately decides the issue of authenticity of social media evidence. The federal district court in Maryland, which authored the Lorraine v. Market Am. Ins. Co. opinion, made it clear that “(b)ecause authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims.” Thus, even though the Lorraine court was sitting in Maryland, that federal district judge chose to adopt the more lenient Texas standard for authentication. "Because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims."⁷

Several years after Parker, the Third Circuit adopted the same approach in U.S. v. Browne.⁸ In Browne, the defendant used Facebook to contact minors and solicit their explicit photographs. Once he received these photographs, Browne threatened to make them public unless the minors performed sexual acts on him.

At Browne’s criminal trial, the prosecution sought the admission of the defendant’s posts from Facebook chats he had with the minors. The trial court treated his Facebook chat logs the same as traditional documentary evidence, holding that conclusive proof of authenticity was not required. Rather, the court permitted the Facebook chats to be authenticated through the circumstantial testimony evidence of the minors.

Thus, each minor testified about exchanges with Browne in the Facebook chats, and this testimony was consistent with the content of the chat logs. Some minors also testified that after conversing with Browne on Facebook they met him in person, which enabled them to identify Browne in court. Additionally, personal details about Browne were revealed in these chats, such as where he lived, his occupation, and the fact that he was engaged at the time he was chatting with the minors. In light of all of this evidence, the Third Circuit affirmed the district court’s ruling that this social media evidence was properly authenticated.

New Jersey’s Approach to Authentication

The New Jersey Appellate Division has addressed the standards for authentication of social media evidence in the 2016 case of State v. Hannah.⁹ In Hannah, the defendant was accused of hitting someone with a high-heeled shoe. In her defense statement, Hannah claimed she did not have contact with the victim on the night in question.

To rebut this testimony, the prosecution sought to admit the defendant’s reply tweet to the victim after the altercation, which stated, in part, "…shoe to ya face bitch (sic)." The prosecution authenticated this Twitter post by relying on circumstantial evidence such as: 1) the defendant’s twitter handle and corresponding profile picture; 2) the content of the post, which showed the defendant’s knowledge about the altercation that one would expect only her to have; and 3) the fact that the defendant’s tweet was a reply to the victim. Under the reply doctrine, a piece of writing "may be authenticated by circumstantial evidence establishing that it was sent in reply to a previous communication."¹⁰

On appeal, the defendant argued that the trial court improperly admitted her tweet since it had not been properly authenticated under the higher standard of the Griffin/Maryland approach. In opposition, the prosecution argued that the court properly admitted the evidence under the more lenient Tienda/Texas approach to authentication. In ruling, the Appellate Division did not expressly adopt either approach, but rather applied New Jersey’s traditional rules of authentication under N.J.R.E. 901. Thus, the Hannah court held that the fact that a Twitter post is created on the internet does not set it apart from other customary writings, nor do social media posts require a special approach or rule of evidence.¹¹

Although not expressly adopting the Texas approach, in Hannah, the New Jersey Appellate Division took an almost identical approach: Both jurisdictions permit the use of circumstantial evidence to authenticate social media evidence, with the judges’ role being to determine if the proponent of the proffered evidence established a prima facie case that would justify admission. The Appellate Division in Hannah found that the trial court provided sufficient reasons for finding the tweet authentic, relevant, and admissible, and thus affirmed the lower court’s ruling.¹² Note that the Hannah decision did not limit the scope of its holding solely to criminal cases and, therefore, this holding may also be relied upon in civil matters to resolve authentication issues, at least until the New Jersey Supreme Court addresses the issue.¹³

Hearsay and Social Media Evidence

In addition to authenticating properly social media evidence, one must address potential hearsay issues if one wants to get the digital dirt into evidence. As is known from Evidence 101, hearsay is an out-of-court statement that is offered in court to prove the truth of the matter asserted within the statement.¹⁴ In order to constitute hearsay, there must be a declarant making the statement (e.g., a Mississippi court ruled that an automatic email notification from Facebook containing a message was not hearsay because there was no declarant and, therefore, no hearsay¹⁵). And if the statement is hearsay, the evidence is inadmissible, unless it falls under one of the exceptions to the hearsay rule.¹⁶

One exception that is helpful in the social media context is the party-opponent admission,¹⁷ which is the party’s own statement, made either in an individual or representative capacity. In People v. Oyerinde,¹⁸ the Michigan Court of Appeals held that the defendant’s Facebook messages to a non-party were not hearsay, but rather a party admission, because the messages were the defendant’s statements.

With respect to social media evidence from non-party witnesses that is subject to a hearsay objection, some appropriate exceptions include: present sense impression;¹⁹ excited utterance;²⁰ and then-existing mental, emotional, or physical condition.²¹ The prevalence of portable electronic communication devices provides one with the ability to post about events as they occur, thereby making present sense impression and excited utterances potential hearsay exceptions depending on the specific facts of this case.²² Additionally, the then-existing state of mind exception can be useful when seeking to admit emails (and equally, social media private messaging), as both are modes of communication that often are chock full of candid statements of the declarant's state of mind, feelings, emotions, and motives.²³

Conclusion

Finding digital dirt on the other party does not automatically mean the evidence will be admitted at trial. One first must authenticate the evidence and then meet any hearsay objection by showing that it is either non-hearsay or falls within a hearsay exception. Best practices dictate that lawyers should deal with authentication and hearsay issues during discovery—especially at depositions—rather than in the middle of what one thought was going to be a withering cross-examination at trial.

Authenticating social media evidence can also be accomplished by stipulation or requests for admissions prior to trial. The more rigorous federal court final pretrial order and conference practice will force one to confront and solve those potential problems. Don’t let the less rigorous state court final pretrial procedures create a false sense of security. In collecting authentication evidence—at a minimum—take screenshots, print out postings, and capture as much electronic data as possible to display the origin of the post. Waiting until summary judgment motion practice or trial to deal with authentication issues may be too little, too late.

John B. Kearney and William Reiley are attorneys in the New Jersey office of Ballard Spahr LLP.

Endnotes

[1].          Lorraine v. Market Am. Ins. Co., 241 F.R.D. 534, 545 (D.Md. 2007).

2. The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age, App. E.
3. 419 Md. 343 (Md. 2010).
4. 358 S.W. 3d 633 (Tex. Crim. App. 2012).
5. See Parker v. State, 85 A.3d 682 (Del. 2014).
6. Id.
7. Lorraine, supra note 1, at 539.
8. 834 F.3d 403 (3d Cir. 2016).
9. 151 A.3d 99 (App. Div. 2016).

[1]0. Hannah, 151 A.3d at 106 (quoting State v. Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162 N.J. 132 (1999)).

[1]1.        Id.

[1]2.        Id. at 108.

[1]3. See, e.g., New Century Financial Services, Inc. v. Oughla, 437 N.J. Super. 299 (App. Div. 2014) (citing evidentiary rulings on authentication from criminal matters as a basis for its ruling on a civil matter).

[1]4.        Fed. R. Evid. 801(c); N.J.R.E. 801(c).

[1]5. Smith v. State, 2013 WL 2400393 (Miss. Ct. App. June 4, 2013) vacated in part on other grounds 136 So.3d 424 (Miss. 2014).

[1]6.        Fed. R. Evid. 803; N.J.R.E. 803.

[1]7.        Fed. R. Evid. 801(d)(2); N.J.R.E. 803(b).

[1]8.        2011 Mich. App. LEXIS 2104, at *26–27 (Mich. Ct. App. Nov. 29, 2011).

[1]9.        Fed. R. Evid. 803(1); N.J.R.E. 803(c)(1).

20. Fed. R. Evid. 803(2); N.J.R.E. 803(c)(2).
21. Fed. R. Evid. 803(3); N.J.R.E. 803(c)(3).
22. See Lorraine, supra note 1, at 569.
23. Id., at 570.