Authentication, Admissibility and Hearsay Considerations for Social Media Evidence

Social media eDiscovery evidence

Courts continue to struggle to come to a consensus on admissibility thresholds for social media evidence. Robert Keeling, partner at Sidley Austin, participated in a recent Lexbe eDiscovery webinar where he discussed how social media evidence must still satisfy the rules of evidence regarding authentication, hearsay and relevance.

Regarding authentication, Mr Keeling explained that screen captured social media must be authenticated in order to be accepted as admissible evidence. He advises that when submitting social media screen grabs you do so with it a “contemporaneous declaration that states out the date and time that the capture took place, who was taking it, the URL that you visited, the site, how you got to that page, and then affirm it, and sign it under penalty of perjury, for example, and have that contemporaneous document that you could use to rely on if challenged.” Additionally, if you are seeking access to a party’s social media profile, attaching a pertinent screenshot to a motion to compel bolsters your argument that there is likely to be additional relevant information on the other side of the privacy wall.

Mr Keeling further went on to discuss hearsay, saying that certain hearsay exceptions are well suited to social media context. He offered that under Federal Rules of Evidence 801(d)(2), the adopted admission exception would apply; “[a] statement is not hearsay if . . . [t]he statement is offered against a party and is the party’s own statement, in either an individual or representative capacity.” Also relevant to the hearsay exception, he asserted that under Fed Rules of Evidence 803(1)(2) and (3) that social media messages and updates may be admissible “state-of-mind, emotional or physical condition, present sense impression or excited utterance exceptions to hearsay.”

On the topic of relevance, Mr Keeling stated that parties may offer social media evidence for the purpose of impeachment or as substantive evidence.  As an example of impeachment, he offered a scenario where photos on a social media site of the plaintiff waterskiing could be used to impeach her testimony about a disabling shoulder injury.  Substantive evidence could include photo printout of social media communication in an attempt to show that one party sent a threatening message to the other.

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