Social Media Evidence and Jury Trials
By Timothy P. Flynn
How do lawyers admit evidence from a social media site in a court proceeding? This post examines the process, which pits ancient evidentiary rules against the explosion of social media data.
Trial courts, typically technology laggards, are increasingly faced with attorneys making offers of proof from the ocean of social media teeming with data; some of which may be relevant to the case before the court.
Here are a few examples: A photo posted on Facebook that shows a young probationer in a bar with a drink in her hand is relevant at a probation violation hearing; a litigant that has checked into a series of businesses via Foursquare could be relevant to establish a timeline on the litigant’s conduct; the LinkedIn profile of a spouse going through a divorce may contain valuable information about the divorcee’s present career prospects. There truly are endless avenues of relevant evidence now available via social media platforms.
Recognizing relevant social media evidence is one thing; getting the data before the trier of fact is an entirely different matter. Here is what a trial lawyer needs to consider these days in the social media era.
Data Preservation. After identifying the relevant social media data, the first step in the trial preparation process is to preserve the evidence. As social media, by definition, is digital and fluid, the litigator must take the proper steps to preserve the evidence today, as it may be gone tomorrow (or at least prohibitively expensive to retrieve). Lawyers therefore must know how to capture screen shots of the target social media site, making sure to save the image(s) with time and date tags.
Site Security and Authentication. Just because data finds its way onto a litigant’s electronic profile does not mean the litigant produced the content. Each social media platform offers different security options; each individual selects different security settings.
One “best practice” is to eliminate the possibility that someone other than the at-issue litigant or witness created the post. The lawyer should utilize basic discovery tools such as a specifically-tailored set of interrogatories and requests for admissions that pertain to access and potential corruption of the target social media site.
The lawyer’s goal is to eliminate the possibility of an unauthorized use of the social media platform, either through hacking, use of a shared account, or access gained through lack of password protection. Security questions and answers used to set up an account are things that are discoverable. The litigator must ascertain these facts as early in the case as possible.
Social Media Account Ownership. It may sound obvious, but the litigator must stick to the basics, and establish ownership of the targeted social media site. Information about the electronic profile of a party to the litigation can also be obtained through the use of a subpoena. These days, a copy of the “subscriber report” along with all other personally identifying information submitted to the social media site to open the account are often sought by the attorney.
Specific Content Authorship. Once the relevant social media content has been identified and preserved, and account ownership is verified, the final step is to prove the litigant or witness, in fact, authored the relevant content. You would think that litigants would admit to the creation of content that is obviously attributable to that person’s electronic profile; guess again.
Litigation is war. Although it is a war with rules, not everyone participating in the process observes the rules. In addition, there are attorneys who take expansive and fantastic liberties with court rules and the rules of evidence, making it more difficult to prove social media content authorship.
Thus, if a litigant or witness denies authorship of relevant social media content, then circumstantial evidence will need to be developed to lay a proper foundation for the admission of the evidence. IP addresses associated with a particular social media site or email address are good examples of circumstantial evidence pointing to an inference that the litigant created certain content found on the site.
Social media evidence is now pervasive in our society. It is possible to track a digitally viable person’s every move. The challenge for lawyers is to be prepared to work around the lag in the court rules and evidentiary principles that do not take the sources of modern data into account.
Digitally creative lawyers who refuse to succumb to old-fashioned evidentiary obstacles will be able to get relevant social media evidence admitted into their case, greatly improving their chances of winning that case.
Timothy P. Flynn is the founder and owner of Clarkston Legal, a full service law firm located in Clarkston, MI. He has been litigating cases in Michigan’s courts for 25 years. An early adopter of social media marketing, Flynn addresses professional groups across the country about the process of integrating social media into law firm marketing.