E-Discovery

Authenticating Social Media Evidence Is Harder Than Lawyers Think

Let’s play a game. You’re the judge. Under the following facts, is the social media evidence admissible?

After obtaining a Court Order allowing him to obtain a criminal defendant’s Facebook records, the prosecutor files a motion seeking permission to introduce into evidence the following items:

  1. Screenshots of the defendant’s Facebook account
  2. Various undated mobile and online “chat” messages
  3. A bloody hands photo posted by another individual

So, which items were admissible? Not which items should have been admissible?

The answer: None.

Why? Even social media obtained pursuant to a court order must be authenticated properly to be admitted into evidence. In other words, the prosecutor failed to establish sufficiently that the items were “connected” to the defendant even though the Facebook account in question bore the defendant’s name and other characteristics. The chat messages were excluded because they contained insufficient contextual clues establishing the defendant’s identity as the author to allow them in as evidence.

Pennsylvania Evidentiary Standards for Authenticating Electronic Data

The Superior Court, in Commonwealth v. Mangel, 2018 PA Super 57 (Pa. Super. Mar. 15, 2018), ruled that social media evidence authentication requires, at a minimum:

  1. An adequate foundational showing of its relevance and authenticity, and
  2. Direct or circumstantial evidence that tends to corroborate the identity of the author of the communication, such as testimony, or contextual clues in the communication tending to reveal the identity of the sender.
  3. The admissibility is to be evaluated on a case-by-case basis for an “adequate foundational showing of its relevance and authenticity.”

Direct Evidence such as electronic communications or documents require more than mere confirmation that the number or address belonged to a particular person to be authenticated and used in court.

Circumstantial evidence may include personal knowledge of participants, and verification to authenticate computerized instant messages, cell phone text messages, Facebook posts, and other contextual clues that tend to corroborate the identity of the sender to verify authorship.

So, was Mr. Mangel lucky that his Facebook chats were not admitted? Yes. But, why? Because the Commonwealth did not do its research and obtain corroborating data to authenticate the messages. In fact, no one testified about the veracity of the messages; thus, they were unverifiable.

Of note, as our office has explained to many clients, as well as lawyers attending continuing legal education programs where we speak, social media records and communications can be properly authenticated within the existing evidentiary rules. To authenticate social media chat messages or emails, the proponent (person offering the evidence) must present sufficient direct and circumstantial evidence to establish its authenticity, that the matter is what it purports to be, and/or testimony of a witness with personal knowledge. See Pennsylvania Rule of Evidence 901.

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Philadelphia Bar Association Ethics Committee Concludes That Social Media Evidence Must Be Preserved and Produced

A lawyer has a duty to preserve relevant, or potentially relevant evidence posted on social media websites, according to an ethical guidance opinion issued by the Philadelphia Bar Association Professional Guidance Committee on July 7, 2014. The Opinion emphasized that a lawyer’s duty to preserve evidence does not change simply because the information is on a social networking website such as Facebook. Regardless of where the information comes from, lawyers must comply with their obligations under the Pennsylvania Rules of Professional Conduct.

The opinion, No. 2014-5, focuses on two issues: (1) what a lawyer may instruct a client to change or remove from the client’s social networking site, and (2) what obligations a lawyer has when responding to a discovery request seeking social media content.

The Committee, applying Pa. R.P.C. 3.4 (“Fairness to Opposing Party and Counsel”), concluded that a lawyer may instruct a client to change the privacy settings on the client’s social media site. However, a lawyer may not instruct a client to destroy any information already posted on the page. This does not mean, however, that a lawyer cannot instruct a client to remove content that may be damaging to the client’s case. Instead, the lawyer may instruct a client to remove the information but must take “appropriate action” to preserve the information in case it becomes relevant and discoverable in the case.

The Committee also noted that changing the privacy settings on a social media site to restrict who may access its content is permitted under the Rules because changing the privacy settings does not change the content on the site. There are other ways to access the content, and the Opinion cites multiple cases where courts have granted motions for discovery of social media information. While it may be more cumbersome for opposing counsel to retrieve relevant information, there is nothing unethical about instructing clients to change the privacy settings on their social media sites.

Addressing the second issue, the Committee relies on Pa. R.P.C. 4.1 (“Truthfulness in Statements to Others”) to conclude that a lawyer, in response to a Request for Production of Documents, must make reasonable efforts to obtain and produce relevant social media content if the lawyer knows that a client possesses that information. However, a lawyer is not required to take any affirmative steps to obtain information that is under the control of a third party.

This opinion now gives lawyers some guidance on their ethical duties relating to a client’s use of social media. Social media evidence still must be preserved and produced like other types of evidence. Our office regularly addresses a variety of legal ethics issues dealing with social media and other areas of the law.

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Welcome Back – Pa. Supreme Court Issues “ESI” Rules

Welcome back to the Pennsylvania Law Blog, which has been dormant for about a year. It’s not that nothing has happened, it’s just not as easy to maintain a blog as we all had hoped. But our relaunch was designed to occur this summer, and the Pennsylvania Supreme Court has certainly “helped” things along with their first foray into e-discovery and the role of the Pennsylvania Rules of Civil Procedure in dealing with electronically stored information.

Unfortunately, the latest Rules changes don’t provide the type of guidance I had hoped for. First, the Supreme Court explained in its report (Explanatory Comment) that it did not intend to adopt the Federal Rules of Civil Procedure relating to e-discovery. While this is understandable in some ways, the key is to provide guidance, leading to the second point.

Second, the Court emphasized that the changes were intended to encourage “traditional principles of propotionality,” which offers no guidance, particularly in light of the fact that Rule 4009.1(b) (effective August 1, 2012) permits “A party requesting electronically stored information [to] specify the format in which it is to be produced and a responding party or person not a party may object.” This is a recipe for discovery disputes, particularly because so many attorneys simply don’t understand e-discovery or the methods information is stored, maintained or produced. It would seem therefore that the Court chose not to consult those of us who are most familiar with the issues.

Finally, the Rule continues by stating that “If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form.” In other words, a party can produce it in any way it wants.

To the Judges of Pennsylvania who handle discovery disputes, welcome to the world of e-discovery. I can only hope that the case law that will inevitably develop provides a bit more guidance, especially since the major body of case law (under the Federal Rules) does not apply.

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