At a seminar in November, I got an earful about social media. The presentation claimed that each second of the day there are: 9,000+ tweets sent, 50,000+Google searches, 2,000,000+ emails sent, 2,000+ Instagram pictures uploaded, and 1,500 Skype calls. I found each of those intriguing. I am particularly curious as to how many of those pictures are of someone's dinner. It has been claimed that some choose their holiday meal for photogenic reasons.
The presenters in November noted that the prevalence of such media has led these platforms to become a part of everyday law practice and litigation. There are innumerable instances in which electronic data may become interwoven into the proofs and defenses of litigated claims. One cited case concluded that such evidence will evolve from merely common today to predominant in our near future.
There was discussion of many challenges that lawyers may face with such evidence. Mention was made of relevance (section 90.401, F.S.), authenticity (sections 90.901 and 902), and hearsay (sections 90.801-90.805). The presenters skipped in that regard to the identification of some "exception to hearsay." I was struck by that, as it is consistent with my experience on the bench. Lawyers are too quick to concede that something is "hearsay" (section 90.801) and move on to search for an exception (sections 90.803 and 804).
In fact, a great many statements are not intended to "to prove the truth of the matter asserted," and thus are simply not hearsay under the definition. If it is not hearsay, why look for an exception? That is lazy litigating. The analysis should begin instead with why is this evidence being introduced. If a picture from my Instagram account is introduced to prove I was water skiing (when perhaps I have testified I cannot), then there is a hearsay problem. If that picture is instead introduced to explain why I was placed under surveillance, that is what effect that picture had on the viewer, then it is arguably not hearsay and no exception is needed. It may not be a simple analysis, but the point is to take the analysis in appropriate order.
Another point that the presenters skipped is the age-old adage that each objection stands on its own. that is, if there are objections to relevance, authenticity, and hearsay then the proponent party needs to effectively address all three. Demonstration that something is not hearsay or that there is a statutory exception allowing the evidence over a hearsay objection, despite it being hearsay, does not mean that the thing is authentic or relevant. The response must meet and overcome all three objections, not merely one.
This presentation proceeded rapidly to the discussion of authentication. The presenter was quick to remind us that such a hurdle is quickly cleared if that picture of me skiing is shown to me and I admit that it is me, and that the picture is an accurate representation. The problem, instead, is when the witness denies either of those points. Then outside evidence is needed to authenticate that photograph. This can include firsthand witness testimony (if not me, perhaps the person who took the photo, or was at least present when it was taken), extrinsic evidence, or the "silent witness theory."
The point of these rules is two fold. First, they each establish parameters regarding what will and will not be evidence. Parameters give us predictability and allow us to structure and plan our arguments. Second, as the parties are all part of that process, there is a fulfillment there of our commitment to due process. What will be viewed by the judge or jury in making a decision will be viewed only after all parties are aware of it, and have had an opportunity to both object to it and obtain contrary evidence to rebut it.
In the extrinsic evidence category, there is the simple example of someone testifying that they were also present when a photo was taken. They would testify that the photo is a true and accurate representation of what occurred (section 90.901). But, that extrinsic evidence in the context of a social media or other internet data might also be someone from the social media company (live or by affidavit) providing testimony that establishes that the photo exists, when it was posted, and by whom (tied to an email address or an internet protocol [IP] address of the person that uploaded it). Simple "screenprints" found on the world wide web are unlikely to be accepted on their own (without substantiating testimony, beyond that of the person taking the screen-shot).
Proving that the internet media "account" is in someone's name or contains their picture is unlikely to be sufficient. The person that seeks to introduce that evidence will need to either elicit an admission of account ownership or prove it. This often comes down to IT experts and the metadata that is associated with the information on the Internet.
One tool they use is called "hash values," an examination of numbers that are assigned by computer algorithms in the creation and upload processes. As these are computer-generated, they are seen by many experts as unlikely to be duplicated. In that distinction, much like with DNA, there lies implied credibility of authenticity. Thus, while there is a clear process to follow, it may be expensive and laborious to authenticate and admit Internet evidence. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 546–47 (D. Md. 2007).
An interesting case in which the procedure for obtaining such IP addresses is Doe v. Cahill, 884 A. 2d 451 (DE 2005). The complaining party there obtained the IP addresses from the company that hosted a website upon which comments were made, traced the ownership of the IP address, and from there to the subscriber to whom the IP had been assigned. This lawsuit resulted from Cahill's efforts to make the owner of the IP disclose the identity of that subscriber, "Doe."
The case is interesting as it describes the Internet as "unique democratizing medium unlike anything that has come before." The Court concluded that "speech over the internet is entitled to First Amendment protection." And, in reversing the trial court that ordered Doe be unveiled, the Court held disclosure of Doe in this setting would effect a "chilling effect on anonymous First Amendment internet speech." Noting the competing interests of discovering the identity and the protection of free speech, the Court enunciated a "summary judgement" standard, meaning that to discover the anonymous poster identity, the plaintiff "must support his defamation claim with facts sufficient to defeat a summary judgment motion." An interesting and instructional read.
There are a number of courts that have characterized internet postings with "inherent unreliability." Picture Me Press v. CPI Images, ___ F.Supp.2d ___, 2009 WL 2252879 (U.S. Dist. Ct. E.D. OH 2009); Jaime Lynn Marketing v. Clark IV Family Trust, ___ F.Supp.2d ___, 2012 WL 400961 (U.S. Dist. Ct. N.D. IL 2012); There are also a number that have noted that "inherent unreliability" "is not clear." Alfa Corp. v. OAO Alfa Bank, 475 F.Supp.2d. 357 (U.S. Dist. Ct. S.D. NY 2007). Thus, there is discretion with the trial judge and perhaps little predictability for the litigants. The party seeking to introduce such evidence may face a significant challenge.
The court in Jamie Lynn noted that some sources "such as Wikipedia and others, are often unreliable." However, other courts have noted that "The Internet has become a source of reliable information both for courts and experts." Member Services Inc. v. Se. Mut. Life Ins. Co. of New York, ___ F.Supp.2d ___, 2009 WL 2252879 (U.S. Dist. Ct. N.D. NY 2010). The court noted that "Countless contemporary judicial opinions cite internet sources, and many specifically cite Wikipedia.” It remains curious that a college student citing Wikipedia is likely to suffer grade degradation, but judges pursuing non-record support for their outcomes cite it without apparent concern for accuracy or reliability.
Some would argue instead that judges should make decisions based upon the record evidence adduced by the parties. This is a due process argument that would be seemingly popular. But the growing reliance on judicial Internet surfing may belie that. If a judge would rely on Wikipedia in their own sleuthing, perhaps a party might have higher expectations of successfully introducing Internet evidence before that judge? That, of course, ignores that judges performing such independent research is shaky ground in the broader context of due process.
What is certain is that the Internet is not going away, at least in most countries. Therefore, there will continue to be references to, questions about, and evidentiary rulings regarding the Internet and its vast assortment of writings, images, and videos. And, if you cannot find the image, article, or tweet you want, wait a few seconds, more is uploaded every second of every day. I just added this post to the melange.