From left: Manleen Singh and Liana Newton
Be careful what you post on the internet.
Not everyone listens to this warning, and those who ignore it could see their posts, tweets, shares and likes front and center . . . in court. But how are tweets and other forms of social media admitted into evidence? The answer: Federal Rule of Evidence (FRE) 902(14).
WHAT IS FRE 902(14)?
In general, the comprehensive and widely used FRE 902 allows certain self-authenticating evidence to be admitted without extrinsic evidence of authenticity. Litigators rely on this rule for certain documents, such as public records, newspapers and other documents.
On Dec. 1, 2017, subsection 14 was added to FRE 902 to streamline the admission of electronic evidence by replacing in-person testimony with written certifications.
Rule 902. Evidence That Is Self-Authenticating:
“The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
. . .
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).”
Since social media is considered data from an electronic device, it is subject to FRE 902(14).
INTERPRETING FRE 902(14)
FRE 902(14) can be divided into three elements. It permits authentication of social media and other similar evidence if:
- Copies are made through a digital identification process;
- A qualified person can submit a written certification regarding the digital identification process; and
- Reasonable notice of the intended use is given to opponent.
Digital Identification Process: In their comments to FRE 902(14), the official Advisory Committee describes one acceptable digital identification process. This process involves a specialized software that compares two documents’ “hash value.” A hash value is an alphanumeric sequence of characters that is unique to that document. Thus, if the original document, e.g., a Facebook page, and a copy of the Facebook page have the same hash value, there is a very high probability that the documents are identical — at least in the eyes of the court. Despite the description of only one digital identification process, the committee notes that “[t]he rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.”
Qualified Person and Written Certification: Not anyone can attest to the digital identification process. Under FRE 902(14), proponents must submit written certification by a “qualified person.” A qualified person is someone who knows how data systems operate and who would be able to establish authenticity through testimony at trial. Acceptable written certification replaces in-person testimony. Whether submitted by certification or testimony, the information contained therein must be sufficient to authenticate the proffered evidence.
Reasonable Notice: FRE 902(14) adopts FRE 902(11)’s notice requirement. FRE 902(11) requires proponents to give any adverse party reasonable written notice — before trial — of the proponent’s intent to use the social media evidence. What is considered reasonable notice, however, is case-specific. Nevertheless, per FRE 902(11), proponents must make the certification available for inspection so “that the [adverse] party has a fair opportunity to challenge them.”
FRE 902(14)’S EFFECT ON EDISCOVERY PRACTICE
FRE 902(14) provides specific steps and instructions to determine the admissibility of social media evidence. As a result, litigators likely will have seen in the past year, and will continue to see, a reduction in trial costs, lessening of unnecessary evidentiary disputes, and a streamlined discovery process.
FRE 902(14) SOLVES AUTHENTICATION, BUT REMAINS VULNERABLE
For all its benefits, FRE 902(14) also has limitations. While the rule addresses authentication of social media evidence, it is silent on accuracy, relevance, ownership or control of such evidence. It also does not overcome any hearsay objections. For example, written certification can establish that the web page is what the proponent says it is (e.g., a LinkedIn account listing the defendant as a Harvard graduate). But it does not prove the substance (i.e., that the defendant actually graduated from Harvard).
STRATEGIES FOR LAWYERS
Considering the prevalence of social media and the increasing impact of social media activity at trial (one need only to look at the impact of the president’s tweets in lawsuits against his administration), below are strategies for every lawyer — whether a litigator or a corporate attorney, in-house or outside general counsel:
- Keep staff and IT departments up-to-date on eDiscovery certifications and forensic techniques.
- Keep up-to-date on emerging technology and other ways electronic evidence can be digitally identified.
- When issuing legal hold notices, consider including metadata, social media posts, and the preservation of social media accounts.
- Identify social media information, such as Twitter handles, Facebook or LinkedIn name(s), etc. in initial disclosure, automatic disclosures, joint statements, and in requests for production.
- Preserve electronically stored information as it relates to social media for a reasonable amount of time (what is reasonable could depend on the size and nature of the business).
- Be familiar with companies’ online presence and how online activity can be verified, including identifying knowledgeable personnel.
Manleen Singh is an associate at Robins Kaplan LLP. She is a versatile attorney committed to her clients, to understanding their businesses, and to helping them achieve their goals and meet their needs with efficiency and creativity. Singh represents large and small companies in a variety of sectors, including retail, food and beverage, and manufacturing, on matters involving litigation and business relationships. On the litigation front, Singh thoroughly investigates the facts and engages in strategic negotiations, all with an eye towards efficient dispute resolutions that are in line with her clients’ goals and interests. Singh’s experience in business litigation includes fraud, consumer protection, contractual disputes, conversion of corporate assets, and trade secrets. On the transactional front, Singh carefully manages multimillion-dollar acquisitions, commercial real estate transactions and general corporate governance issues to put her clients and their businesses in the best position to be successful.
Liana Newton is a 3L student at Boston University School of Law. She hones her litigation and arbitration skills through domestic and international experiences. As a student, Newton represented BU Law at the 2018 Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria. She credits her success and noted preparation to her participation in Robins Kaplan LLP’s Exceptional Advocate Training Program. Newton completed the program while serving as a summer associate and diversity fellow for Robins Kaplan in 2017 and 2018. After two successful summers, she continues working as a semester law clerk at the firm. Newton plans to join Robins Kaplan’s Boston office as an associate in the fall of 2019.