Social media as evidence is still a new phenomenon, and attorneys and courts are continuing to figure out the best way to handle such data. In speaking to and with attorneys around the country on this topic, we’ve compiled some tips for you as you seek to authenticate social media data:
- Use a third party, such as Step Ahead Social Research, in case you need someone to testify to the validity of the data. It’s never a good idea to have in house staff testify, as that presents a conflict of interest. A witness who is an expert in the subject and whose company is a specialist in this area will be the most effective.
- Don’t just grab screenshots of social media data. Anyone can create an image or alter an image, calling into question the authenticity of the information.
- Collect metadata to prove the account the item was posted to, as well as the date and time. Step Ahead Social Research can collect this data for you. Frances Crockett, a New Mexico attorney, notes: “Metadata is now being considered under rule 901B4 distinctive characteristics of an electronic record that can be used to authenticate it.”
- You can also authenticate the data during plaintiff deposition or interrogation by getting them to admit they did post the item. According to Crockett, some questions to ask include:
- Who created this document?
- Where was it created?
- Who has seen it?
- How was it stored? What was the chain of custody?
- How do you know this file/how is it recognizable to you?
- Who’s had access to these files?
- Has anyone edited this file/photo?
- If the plaintiff refuses to admit they posted the information, you might ask them who else has access to their account and then suggest you will need to depose any family members who have access to this data. This may discourage lying, since they don’t want to put their family members through deposition.
- Additionally, you might ask what other accounts share the same password. If they are suggesting the account was hacked, then other accounts with the same password are likely to have been affected.
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