More On Social Networking Evidence – Five Elements for Admissibility

In Lorraine v. Markel Am. Insurance Co., 241 F.R.D. 534 (D. Md. 2007), the court identified five evidentiary issues that must be overcome in order to introduce electronically stored information as evidence at trial.

First, the information must be relevant.  This should be easy to establish since social networking information provides a litany of photos, status updates and commentaries discussing your client’s or other parties’ personal conduct and behaviors.  Photos of parents who appear intoxicated with their children around, for example, should be relevant to the issue of fitness for custody.  In states that permit a showing of fault, pictures or messages that relate to extramarital affairs are clearly relevant.  Photos that show a spouse and his or her newly acquired expensive goods can be relevant to defeat a claim of lack of resources available for support.

Second, the attorney offering the evidence must also show that the probative value of the message or images substantially outweighs any dangers of unfair prejudice.

Third, the proponent must authenticate the evidence.  It appears that many judges routinely permit the introduction of Facebook-acquired information because the author of this information, if a party to the action, is available to testify to its authenticity.  Alternatively, you can authenticate a photo by showing that it is an accurate depiction or description of the individual.  The person who obtained the information can also testify as to how and when it was obtained.

Overcoming hearsay objections is the fourth issue.  If you are trying to admit the statement to prove the matter asserted, then you must establish a hearsay exception.  Images and photos on websites are not hearsay unless they depict the matter asserted.  Messages and images on social networking sites are more often used for non-hearsay purposes such as for impeachment or to establish a state of mind, motive, or purpose.

The fifth issue to deal with is the “original writing” evidentiary rule which requires that the original record be produced if it is available.  Some technology-friendly courts consider a copy of the original message or image as having the same evidentiary value as the original.  The copy must accurately reproduce the original and simply printing from the website should accomplish this. 

If  the message or image has been removed from the social networking website, an exception to the “original writing” rule can permit secondary evidence when the original is no longer available due to unintended or intended conduct.  Additionally, you can request the original message or image from the social network website provider but these providers tend to resist such requests.  They claim that divulging this information violates the federal Stored Communication Act which prohibits any electronic communication service “from knowingly divulging the contents of any communication while in electronic storage by that service to any person other than the addressee or intended recipient.”

Please contact to discuss!
Simon W. Johnson
swj@swjlawoffice.com

Law Offices of Simon W. Johnson

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