Social Networking Revisited
/ 29.Jul, 2011
We have received considerable response to our initial foray
into an analysis of the evidentiary value of social networking. Plaintiffs may present one face to a defendant in bodily injury litigation and an entirely different face to friends and family on their social network page. Let us assume that discovery turns up some favorable information. The “totally disabled” plaintiff posts the fact that he recently went snowboarding and thoroughly enjoyed himself. How do defendant’s counsel authenticate, for evidentiary purposes, electronically stored information printed from a social networking website? Pennsylvania Rule of Evidence 901 requires authentication as a condition precedent to admissibility. When a party offers evidence contending either expressly or impliedly that the evidence is connected to a person, place, thing or event, the party must provide evidence sufficient to support a finding of the contended connection. Commonwealth v. Pollock
, 414 Pa. Super. 66, 606 A.2d 500 (1992). What do we do with printed pages from a social network account? Pennsylvania Courts have not yet dealt with the issue of admissibility of such information at trial. However, in April of this year, the Court of Appeals in Maryland decided the case of Griffin v. State of MD
, 419 M.D. 343, 19 A.3d 415.
In a criminal prosecution of murder, the accused’s girlfriend supposedly posted on her MySpace profile “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO U R!!” The State offered the testimony of the lead investigator to attribute the posting to the girlfriend. Defense counsel objected to the admission because the State could not sufficiently establish a “connection” between the girlfriend’s profile and posting. The posting contained the girlfriend’s photograph of the defendant, date of birth, and described herself as the defendant’s live-in fiancée.
Concerns arose, however, because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password. There is no law that prevents someone from establishing a fake account under another person’s name, so long as the purpose is not to deceive others or gain some advantage. The bottom line is that with its potential for manipulation, electronically stored information requires greater scrutiny of “the fundamental requirements” to bolster reliability than letters or other paper records.
The Maryland Court ruled the evidence should not have been admitted by the trial Judge. Someone other than the girlfriend could have created the site and posted the words “SNITCHES GET STITCHES.” A witness’s testimony that they received a message from someone with access to an individual’s MySpace web page does not identify the person who actually sent the communication.
So, what to do? In order to properly lay a foundation down for admissibility of social networking evidence, consider the following:
- Simply ask the purported creator if they indeed created the information.
- Invoke Pa.R.C.P. 4009.31 to inspect plaintiff’s computer. Examine the computer’s internet history and hard drive to determine whether the computer was used to originate the social networking information.
- Use subpoena power to obtain information directly from the social networking website that links the posting sought to be introduced to the person who initiated it.
Most civil cases will only justify expenditure of time and treasure required to complete the first option. Tougher cases will require tougher measures. Recognize this issue and be prepared!
– Frederick Fletcher