Litigation

Ca. Litig. Rev. 2016

Evidence

By Marcellus A. McRae, Michael M. Lee, and Vania Wang

California Courts "Like" a Lenient Approach to Authenticating Social Media Evidence

The proliferation of different social media platforms and their continued widespread use present unique challenges in modern litigation. Corporations and individuals worldwide utilize various types of social media—Facebook, Twitter, LinkedIn, YouTube, Instagram, Snapchat, and others—on a regular basis to communicate with friends, share photos of their children, promote themselves or their brands, and voice opinions on political issues or current events. Research shows that as of 2016, an astounding 68% of all U.S. adults use Facebook, while 28% use Instagram, 25% use LinkedIn, and 21% use Twitter.1 This ubiquity means that social media content is increasingly becoming relevant to litigation of all types.

But while social media evidence can be a valuable asset in litigation—from discovery through trial—California litigants and courts have grappled with serious authentication concerns, given the ease with which it may be manipulated or forged. Despite these concerns, recent decisions indicate that California is moving toward a more permissive rule regarding authentication requirements for social media evidence. This article discusses the unique issues related to the authentication of social media evidence, and how courts, both nationwide and in California, have addressed authentication concerns. Finally, it addresses some additional concerns regarding the admissibility of social media evidence.

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