131 A.3d 1154 (2018)
The court unanimously affirmed the trial court’s decision to deny the prosecutor’s motion in limine to introduce social media evidence allegedly offered by the defendant. The court determined that the information identifying the defendant was not enough to allow the Facebook posts as evidence, stating that it was too easy to falsify accounts and posts on social media, and that there is a high standard for social media evidence. Merely presenting evidence that the posts and messages came from a social media account bearing the defendant’s name was not enough to allow the evidence in.
Supreme Court of Delaware (2018)
A sixteen-year-old high school student died after being attacked by another student in a school bathroom. The appellant was not the perpetrator, but she was charged in Family Court with conspiring with the perpetrator and a third student to assault the victim. Video evidence from Snapchat was introduced, and questions as to authenticity were raised. The court held that it is an "inherent logical necessity" that evidence should not be admitted unless the party offering it can show that the evidence is what it is claimed to be. Court further found that while the 901 authentication requirement is fundamental, it imposes only a "lenient burden" that is "easily met." The proponent need not conclusively prove the evidence's authenticity, but merely provide a "rational basis" from which a reasonable finder of fact could draw that conclusion.The proponent can point to "witness testimony, corroborative circumstances, distinctive characteristics," or other evidence probative of authenticity.
Superior Court of Pennsylvania (2018) (unpublished)
Defendant was charged with burglary, assault, and numerous other counts. During the course of the investigation, the mother of one of the victims advised that photographs of the assault had been posted on Instagram. Upon further investigation, police determined that numerous Instagram accounts had posted or commented on the photographs, and police secured a court order to obtain from Instagram the images and comments posted, as well as all relevant account information. Instagram complied with the court order, providing a zip drive containing the photographs and account information along with a certificate of authenticity. Defendant argued that the court erred in admitting the photographs, as there was no reliable evidence connecting the Instagram postings to defendant. The court cited its recent Mangel decision, and found that the Commonwealth presented sufficient direct and circumstantial evidence, including testimony from various individuals and corroborating photographic evidence tending to support the authentication of the Instagram photographs.
No. 16-6730 (U.S. Ct. App. 6th Cir. (2018)
In which defendant put forth the “photoshop theory,” that social media evidence offered against him had been digitally altered. The jury heard evidence that the photos in question came from a Facebook account registered to a Malik Farrad from Knoxville, Tennessee, and saw photos that appeared to show Farrad in his own apartment— which the court felt largely ruled out the possibility that this was the work of a forger. Defendant also argued that lookalike theory, that "the pictures did not clearly disclose who, if anyone, was holding a gun." But again, the jury heard that personal details of the Facebook account that posted the photos matched Farrad's personal details, heard and saw evidence suggesting that the photos were taken in an apartment belonging to Farrad. “No opinion in this circuit has spoken directly to the proper standard for assessing the admissibility of photographs taken from an online social-media platform like Facebook.” After reviewing analogous cases from inside this circuit and persuasive authority from other circuits, we conclude that the district court was correct to admit the photos, but that it should have done so under a more traditional standard: regular authentication under Rule 901. The court concluded that while it was an error for the district court to deem the photographs self-authenticating business records, that error was harmless because admission was proper under Rule 901(a) regardless.
Crim. No. PJM 15-0258 (U.S. Dist. Ct. Maryland (2018))
Defendant and several others were charged with participation in a well-known gang. Defendant filed a motion to suppress the contents of a Facebook account associated with him. The government sought a pre-trial ruling authenticating the Facebook records. The court held that in this instance, the government provided sufficient evidence to establish that the account was linked to the defendant, but noting that extrinsic evidence was necessary to do so.
Superior Court of Pennsylvania (2018)(unpublished)
Reinforced the Mangel holding that, “[S]ocial media records and communications can be properly authenticated within the existing framework of Pa.R.E. 901 and Pennsylvania case law, similar to the manner in which text messages and instant messages can be authenticated. Initially, authentication social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity. See In re F.P., 878 A.2d at 96. Additionally, the proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender.”
30 N.Y. 3d 656 (2018)
Personal injury action in which court was asked to resolve a dispute concerning disclosure of materials from plaintiff’s Facebook account. Plaintiff alleged that she was injured when she fell from a horse owned by defendant. At her deposition, plaintiff stated that she previously had a Facebook account on which she posted "a lot" of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted. Defendant sought an unlimited authorization to obtain plaintiff's entire "private" Facebook account, contending the photographs and written postings would be material and necessary to his defense of the action. In support of the motion, defendant noted that plaintiff alleged that she was quite active before the accident and had posted photographs on Facebook reflective of that fact, thus affording a basis to conclude her Facebook account would contain evidence relating to her activities. The trial court granted the motion to compel to the limited extent of directing plaintiff to produce all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages. (Later reversal on other grounds.)
20 Cal. App. 5th 225 (2018)
In which defendant was a member of a gang, and his social media account was utilized for purposes of establishing participation in various gang-related criminal activity with which defendant was charged.
2018 N.Y. App.Div., 2018 N.Y. Slip. Op. 05861 (2018)
In which photographs of text messages between the defendant and the complainant were properly admitted into evidence based upon evidence presented that was sufficient to authenticate the photographs.
Case No. 2:13-cv-0298-APG-PAL, United States District Court, D. Nevada (2018)
A recent decision focused exclusively on issues and challenges related to preservation of electronically stored information in a large enterprise. Plaintiffs brought an employment wage & hour class action against UMC. UMC had difficulties with ESI preservation and collection obligations, which led the Nevada District Court to appoint a special master, who proved to be tech-savvy with a solid understanding of eDiscovery issues.In August 2014, the special master issued a report, finding that UMC’s destruction of relevant information “shock[ed] the conscious.” and that UMC and its counsel failed to take reasonable efforts to identify, preserve, collect, and produce relevant information. The court imposed monetary sanctions against UMC, including the attorney fees and costs incurred by opposing counsel. Additionally, the court ordered that if the matter went to trial, the jury would be instructed that “the court has found UMC failed to comply with its legal duty to preserve discoverable information… ”