The Admissibility of Social Media Evidence
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A lawyer recently expressed to me serious doubts about using evidence from social media websites. According to him, electronically stored information (ESI) can never be trusted without the proffering party proving each step of creation to guarantee its authenticity. But that would be the equivalent of requiring a team of experts to authenticate a hard-copy document. You’d start with a lumberjack to explain how a tree was cut down. An expert on how trees are made into paper would follow. Another expert would detail how ink works, and so on and so on.
The law simply does not require such a metaphysical discussion of existence for social media information to be admissible. It is treated no differently than any other evidence. For admission in court, a party must show that the ESI is relevant; authenticate it; address issues of unfair prejudice and probative value; address hearsay (show an exception or non-hearsay use of the ESI); and demonstrate that the ESI conforms to the original writing (the best evidence rule).
Federal Rule of Evidence 401 states that evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and if the fact is of consequence in determining the action.
There has been a mad dash by some attorneys to introduce social media evidence against an opposing party at trial. Such evidence, however, must first be deemed relevant to the litigation, either in support of the plaintiff’s case or the defense’s case. In a case involving emotional distress, photographs posted on a social media site were relevant to both. In Quagliarello v. Dewees, 2011 U.S. Dist. LEXIS 86914, at *9–10 (E.D. Pa. Aug. 4, 2011), the court held that the defendants could show up to three pictures of the plaintiff from a social media website if she testified on direct examination regarding her emotional distress after the incident alleged in the lawsuit. The plaintiff then would have the opportunity to rebut the photographic evidence on redirect by introducing up to three additional social media photographs from the same time period.
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Tags: Social Media, social media websites
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