Social Media Posts Fair Game in Civil Litigation

laptop-work-1260785-m.jpgParties to legal actions should always assume that their social media (e.g., Facebook; Twitter) postings will be discovered (discovery is allowed by FRCP 1.350; Discovery of Facebook Content in Florida Cases, 31 No. 2 Trial Advoc. Q 14 (Spring 2012)) and used against them by the other side if helpful. Postings can be used to contradict assertions made in a legal case and sometimes lead to the outright dismissal of actions by the court based on fraud.

However, hurdles must be overcome to get postings into evidence. Among the hurdles:

Finding and Preserving the Social Media Evidence

  • Once we find useful postings by surfing the Internet, we save link addresses, print pages, and take iPad screen shots by simultaneously pressing both of the device’s power switches.
  • Preservation of evidence letters can also be sent to those who own and or control the site to prevent spoilation of the evidence through the innocent or purposeful removal of content. Surprisingly, parties are not obligated to preserve evidence without a specific request. See, Osmulski v. Oldsmar Fine Wine, Inc., So.3d , 37 FLW D1578 (Fla. 2nd DCA 6-20-2012).
  • Formal discovery, pursuant to FRCP 1.310, 1.340, and 1.350, can be used to identify websites with potentially valuable information. Request from the respondent: websites the respondent uses to communicate with others; website account information such as account holder and user name; respondent’s email addresses, phone number, home address; printouts of account information and screen shots.
  • Subpoenas can also be issued to website administrators, like Facebook and Twitter. (The particular knotty issues involved in gathering information from administrators is beyond the scope of this blog.)
  • Another source of information is the Wayback Machine. This is a service that allows people to surf more than 150 billion pages in the Internet Archive’s Web archive.

Legal Hurdles

Florida law draws a distinction between the discovery of evidence and the admissibility of that evidence in court proceedings. While discovered evidence is often admitted into evidence, the concepts of discovery and admissibility are not the same. Florida’s discovery standard is set forth in FRCP 1.280, as follows:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

One of the primary admissibility concerns is that an item being used to prove something is what it is purported to be. This is known as authentication, codified in Florida Statute 90.901:

90.901 Requirement of authentication or identification.–Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

The primary authentication concern regarding social media involves establishing who made the post. The person against whom a post will be used may claim that he or she didn’t make it. Hacking, friendly pranksters, and Facebook “tagging” are examples of others being responsible for posts. The burden is on the proponent of the evidence to establish its authenticity, which can be met through witnesses with personal knowledge, distinctive characteristics, and self-authentication. If the court finds that the evidence is sufficient for a reasonable juror to find that the item is genuine, it will be admitted. It then becomes the responsibility of the jury to determine the probative value, if any, of the item.

Personal Knowledge. The party against whom the post will be used can admit to authenticity. Other people, such as friends and acquaintances, claiming to have knowledge may also testify to authenticity, albeit with less effectiveness than an outright admission. The court will decide if the evidence goes to the jury, and if it does, the jury weigh its value. Examples of cases addressing this topic include U.S. v. Phaknikone, 605 F.3d 1099 (11th Cir. 2010) and U.S. v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012).
Distinctive Characteristics. In Coday v. State, 946 So.2d 988, the Florida Supreme Court addresses how an item’s characteristics can establish authenticity. Appearance, contents, barcodes, serial numbers, and signatures are examples of a social media’s distinctive characteristics. U.S. v. Benford, 479 F. App’x 186 (11th Cir. 2011) also discusses this topic. The essence of this evidentiary standard is whether the object presents a sufficient level of characteristics to sway a judge, then jurors, to consider a posting authentic.

Self-authentication. Florida Statue 90.902 contains a list of documents that can be admitted into evidence without proof of authentication. Websites are not in this list and Florida courts have held that they are not self-authenticating. Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So.3d 897, 900 (Fla. 5th DCA 2012), reh’g denied (July 10, 2012), review denied, SC12-1714 (Fla. June 18, 2013) (citing St. Luke’s Cataract and Laser Inst., P.A. v. Sanderson (“Websites are not self-authenticating. To authenticate printouts from a website, the party proffering the evidence must produce ‘some statement or affidavit from someone with knowledge [of the website] … for example [a] web master or someone else with personal knowledge would be sufficient'”) see also dicta in Sun Prot. Factory Inc. v. Tender Corp.

Expert Witness Testimony/Internet Consultants. Florida Statute 90.702 addresses the use of expert testimony.

90.702 Testimony by experts.–If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.

Florida courts have begun to recognize the use of Internet experts as a way of authenticating website information. Tiffany (NJ) LLC v. 954JEWELRYMAX.COM, No. 12-23518-CIV. 2012 WL 4896644 (S.D. Fla. Oct. 15, 2012), involved the sale of counterfeit Tiffany jewelry on the Defendant’s website. The Internet expert was able to establish the authenticity of the website’s contents by describing how he derived the information presented to the court.

Another staple concerning the admissibility of evidence is relevance — see Florida Statutes 90.401 and 90.402. Does the evidence tend to prove a material fact? If the answer is No, the evidence should not be admitted. The court makes this ruling — see Florida Statutes 90.104 and 90.105. In some instances, even relevant evidence is not admitted. See 90.403.

While Internet evidence is not guaranteed to be admitted into evidence, we travel on the assumption that if it is relevant, it will be admitted. Even Internet evidence that might not be admitted can complicate or block the successful resolution of a case. Naturally, opponents who become aware of contradictory postings will be less inclined to cooperate in the settlement process. Finally, as officers of the court, lawyers cannot knowingly present false evidence.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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