Last Updated March 2024
According to Nielson’s Q1 2019 Audience Report, the average internet user spends 2 hours and 23 minutes on social media every day. If you work in copyright, trademark and patent infringement, personal injury, employment, or family law, you’re likely already aware of the incredible volume of content that people freely share online. So what do you do if you need to preserve this content for a case?
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Last Updated March 2024
With such an incredible amount of published webpages, websites and social media content, it can be a lot of work to sort out the content that is relevant in a legal case. However, once content is found, an attorney might ask whether or not it can be used as admissible evidence in court. The answer is likely yes, if it complies with the Federal Rules of Evidence, as well as web evidence collection best practices to strengthen its authenticity.
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Last Updated March 2024
Before evidence may be used in court, its authenticity must be established—proof that the evidence is really what the offering party says it is. Authenticating evidence captured from the internet or social media can be tricky. In fact, before they allow it in a courtroom, many judges subject web and social media evidence to closer examination than other evidence because it is believed to be more easily manipulated. As Maryland’s Judge Paul Grimm noted in Lorriane v. Markel American Ins. Co, 241 F.R.D. 534, 542 (D. Md. 2007), “[a]uthentication of ESI [electronically stored information] may require greater scrutiny than that required for the authentication of ‘hard copy’ documents.”
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Last Updated March 2024
By Elana Harris
As mentioned in Part I of this series, Federal Rules of Evidence (FRE) 901 deals with authentication. FRE 901(a) requires that each item of evidence be authenticated by producing “evidence sufficient to support a finding that the item is what the proponent claims.” Rule 901(b) provides a list of suggested ways to authenticate evidence. Several of the enumerated methods are particularly relevant to social media evidence and other webpage evidence such as blogs and corporate websites. In Part II of this series, we will discuss the challenges of authenticating social media evidence under Rule 901(b)(1). In particular, we will examine the issues that arise when the testifying witness presents printouts of a third party’s social media page to show that the party owns the profile and authored the content.
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Last Updated March 2024
By Stephen Nazaran
Social media connects different cultures, and allows us to share photos and information with family and friends in real time. It also provides huge amounts of evidence potentially relevant to a variety of litigation matters, and courts are routinely asked to determine the admissibility of data preserved from various social media sites, including Facebook.
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