The discoverability and admissibility of social media evidence continues to remain a hot topic of discussion. There is not a single accepted definition of “social media,” but the Courts have not seemingly had difficulty in determining whether a particular service falls under the penumbra of “social media.” Merriam-Webster defines “social media” as “forms of electronic communications (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages and other content”. There seems to be very little that happens on the internet these days that does not fit under this broad definition. Popular sites include YouTube, Facebook, Instagram, Pinterest, LinkedIn and others.
The use of social media is ubiquitous across racial, gender and socioeconomic demographics. The biggest drop off is for folks over 65 years of age where YouTube and Facebook usage is only about 50%. A study by the Pew Group found 81% of people used YouTube and 69% used Facebook. The lowest overall percent of usage was the Nextdoor app which only had 13% usage across all categories.
There seems little doubt now that social media evidence is discoverable. As Magistrate Judge Michael North of the United States District Court, E. D. Louisiana stated in Farley v Callais & Sons LLC, 2015 WL 473729), there is no distinction under the Federal Rules between the discovery of evidence that is posted on a social media account and evidence that is written down. The question becomes the scope of what is discoverable. Postings on a public social media platform should have no expectation of privacy and should therefore be discoverable. Postings in a private social media platform have an expectation of privacy and should only be discoverable under very limited circumstances.
Louisiana courts have addressed the discoverability of social media evidence in Walmart, Inc. v Ohler and Arcement v Blue Bayou Waterpark, LLC. In both cases, the First Circuit held that the evidence was discoverable to some extent but was subject to time and topic limitations.
The most perplexing issue concerning the admissibility of social media evidence is authenticating the evidence. In State v Smith, the Court stated that the “standard for proper authentication of social media evidence was whether sufficient evidence supported finding by a reasonable jury that it was what the proponent claimed it to be.” If there has ever been a more profound example of lawyer talk, I have not seen it. What is probably clear is that simply offering screenshots of Facebook postings are not going to be admissible without some other supporting information.
This area of law continues to grow and develop. Andres Gomez and I will be presenting a paper on the Discoverability and Admissibility of Social Media Evidence at the Louisiana Claims Association conference in Biloxi on June 9 at 8:30 a.m. Stop by and hear our full presentation.