Technology Committee

Technology Committee: Social Media as Evidence

The technology committee held a webinar on December 14, 2022 on discovery, preservation, authentication, and admissibility of social media. The webinar even included practical demonstrations for an audience of young lawyers. Presenters included U.S. Magistrate J. Mark Coulson; Michael D. Berman, Rifkin Weiner Livingston LLC, and E-Discovery LLC; Alicia L. Shelton, Assistant U.S. Attorney; Melissa E. Goldmeier, Assistant U.S. Attorney; Thomas W. Keilty, III, Keilty Bonadio; and Ashley Aranega, X1 Discovery, Inc. For the purposes of the webinar, Mr. Berman defined social media broadly as any website that allows social interaction with an exchange of comments on its website. State v. Sample, 468 Md. 560 (2020) is the prevailing case that defines social media and contains guidelines for how to authenticate and admit social media as evidence during trial.

Discovery Requests

Magistrate Coulson emphasized that discovery rules require requests to be relevant, proportionate, and non-privileged. So, if you are requesting social media in your discovery, the request should not be so broad that its not evident why it is needed for the issues being litigated. Notably, there is no general privilege over social media regardless of the privacy settings on an individual account.

Preservation

Mr. Berman discussed best practices for collecting the data and why a DIY collection may not provide the information you are looking for, including the metadata. He reminded the audience that the duty to preserve is separate and

distinct from the duty to produce. The duty to preserve continues after production Ms Aranega demonstrated how to use the program X1 Social Discovery to download information from the social media website with the metadata while capturing every part of the post.

Admissibility and Authenticity

Ms. Shelton advised the audience to think about how to frame the evidence as what it purports to be while making your discovery requests, and while you are determining what the parties stipulate to before trial, so that the opponent doesn’t claim lack of knowledge during the trial. Authentication is a matter for the court; the court is not bound by strict rules of evidence. Sample held that the offering party must prove by the preponderance of the evidence that the evidence is what it purports to be. The offering party does not have to rule out every inconsistent possibility about the evidence. Irwin Industrial Tool Co. v. Pifer, 478 Md. 645 (2022) held that circumstantial evidence is sufficient without authenticating a years-long chain of custody. The opponent could introduce conflicting evidence. Authentication merely renders evidence admissible. Weight and reliability of the evidence are ultimately up to the jury.