Two recent decisions in Pennsylvania have contributed to the ever-growing body of law covering social media in litigation, providing new guidance to litigants and attorneys on the discoverability, admissibility and relevance of social media data. In Commonwealth v. Mangel, a case of first impression in Pennsylvania, the Superior Court held that Facebook posts and messages are not admissible at trial without some evidence of who actually wrote them. Meanwhile in Kelter v. Flanagan, a Pennsylvania trial court held that a plaintiff in a personal injury suit had to provide the defendant with access to the photographs in her Instagram account. The court held that the photographs were discoverable and relevant to the question of the extent of the plaintiff’s injuries and noted that there is no expectation of privacy on social media. Litigants who want to use evidence from social media at trial can learn important lessons from these cases: Courts are beginning to acknowledge the relevance and utility of information on social media, while at the same time requiring that proponents of its admission meet traditional foundational requirements before it may be admitted.
Commonwealth v. Mangel
In this criminal case, a three-judge panel of the Pennsylvania Superior Court held that the trial court did not abuse its discretion when it rejected the prosecution’s request to admit into evidence Facebook posts and messages allegedly authored by the defendant. The prosecution claimed the posts and messages were evidence that the defendant had committed aggravated assault.
To authenticate the posts and messages under Pennsylvania Rule of Evidence 901, the prosecution presented testimony from a county detective who was qualified as an expert in computer forensics. The detective testified that information obtained from Facebook showed that the Facebook account belonged to a person with the same name as the defendant and who lived in the same hometown as the defendant, attended the same high school as the defendant, and was registered using a cellphone number associated with the same physical address as the defendant. However, aside from showing that the posts and messages originated from the same account, the prosecution did not present evidence that the defendant wrote the posts or messages. The prosecution also did not provide any evidence of the dates or times of the posts or the IP addresses associated with the posts.
In its opinion, the Superior Court reviewed previous case law related to instant messages and email communications. The court reiterated that, because more than one person can use an email address and accounts can be accessed without permission, the mere fact that an email message bears a particular email address is inadequate to authenticate the identity of the author. Additional testimony or other circumstantial evidence is required.
“Social media evidence presents additional challenges because of the great ease with which a social media account may be falsified, or a legitimate account may be accessed by an imposter,” the court said. With these concerns in mind, the court held that, similar to emails or text messages, “the proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender.”
Under this standard, the mere fact that the Facebook account in question pointed to the same name, hometown, high school and address of the defendant was insufficient to establish that the specific posts and messages were authored by the defendant, and the trial court was correct to deny their admission into evidence.
Kelter v. Flanagan
In this personal injury action following an automobile accident, the Court of Common Pleas of Monroe County granted the defendant’s motion to compel the plaintiff to turn over login information for her Instagram account.
The request for the login information came after the plaintiff’s deposition, during which she was shown photographs from her Instagram account that were publicly available. These photographs tended to show that, both before and after the accident, the plaintiff was engaged in physical activity that should not have been possible given the extent of her claimed injuries. Immediately after her deposition, the plaintiff changed her Instagram account from public to private, preventing the defendant from accessing additional photographs that might show the plaintiff was not injured.
The court held that these photographs were relevant to the case, and thus discoverable under Pennsylvania Rule of Civil Procedure 4003.1(b) and Pennsylvania Rule of Evidence 401. The court ordered the plaintiff to provide the defendant access to all photographs on her Instagram account, whether posted publicly or privately.
As emails, text messages and social media data are increasingly used as common and powerful evidence at trial, new legal issues are being injected into the litigation process. Anyone collecting this evidence for use in litigation must keep in mind that they will need to authenticate and prove who owns the social media account, as well as provide at least circumstantial evidence of the authorship of any specific posts, messages or pictures.
The best way to accomplish this would be through direct testimony from the author admitting to having written the post or message in question. Otherwise, parties wishing to use social media evidence should be prepared to collect circumstantial evidence as to authorship directly from social media companies, such as timestamps for messages, IP addresses for the devices making the posts, or other metadata.
Further, as shown by the Kelter decision, all social media posts, even those posts kept private to a small group of friends or contacts, are potentially relevant and discoverable. Anyone entering into litigation should make efforts to not delete posts and preserve anything posted to social media, as it may be requested during discovery.