This post is part of a series titled “Social Media Do’s and Don’ts for Lawyers.” Click here to view all the installments.
DO NOT Fail to Properly Authenticate Social Media Information for Use at Trial
Social media can be used to obtain helpful information during discovery, however, that information will not be helpful at trial if a litigator fails to properly authenticate it. Accordingly, trial attorneys should err on the side of caution and do everything they can make sure that social media information is properly authenticated so that it can be admitted into evidence.
There are no bright-line authentication rules for social media. In the case of Griffin v. Maryland, 19 A.3d 415 (Md. 2011), the Maryland Court of Appeals provided a helpful guiding principle: present evidence to corroborate that the social media information is what it purports to be and was posted by the person purported to have posted it.
In addition, there are several steps that lawyers should take to increase the likelihood that any social media evidence they have is properly authenticated:
- Preserve the metadata regarding the information’s author, location, date, and time by printing out such information or electronically storing it. See Tienda v. Texas, 358 S.W.3d 633, 642-43 (Tex. Crim. App. 2012).
- Capture screen shots of social media posting to establish that the information was not modified from the date of capture. See Stacie K. Hansen, Effective Use of Social Media as a Litigation Tool for the Defense, 27th Annual Claims Handling Seminar, E-6 (May 17, 2012).
- Consider designating the individual who discovered and store the social media information as a trial witness to buttress the information’s authenticity.
The kinds of measures improve the likelihood that social media capture during discovery will be admissible at trial in most jurisdictions.
This post was devised from “SOCIAL MEDIA DO’S AND DON’TS FOR LAWYERS,” Business Disputes 2014 Course