Chapter 10 - § 10.20 SOCIAL MEDIA POSTS

• Jurisdiction: Colorado

§ 10.20 SOCIAL MEDIA POSTS

➢ Discoverability; Relevance Thresholds. Social media posts, including Twitter, Facebook, and Instagram posts, are discoverable subject to the same rules of relevancy as other forms of evidence, including Rule 403. District courts are split on whether a threshold showing of relevance is necessary for production of social media accounts. Compare Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) ("Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. . . . [T]here must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence."), with Giachetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 114 n. 1 (E.D.N.Y. 2013) ("The Federal Rules of Civil Procedure do not require a party to prove the existence of relevant material before requesting it.").

➢ Admissibility; General Thresholds. "The admissibility of a computer printout is governed by the rules of relevancy, authentication, and hearsay." People v. Glover, 2015 COA 16, ¶ 9 (citing People v. Huehn, 53 P.3d 733, 736 (Colo. App. 2002)).

➢ Authentication; General Rules. Social media posts may be authenticated "in a number of different ways consistent with Federal Rule 901 and its various state analogs." People v. Glover, 2015 COA 16, ¶ 25 (citing Tienda v. State, 358 S.W.3d 633, 639 (Tex. Crim. App. 2012)). "Documents from electronic sources such as the printouts from a website like [Facebook] are subject to the same rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence." Id. (citing Moore v. State, 763 S.E.2d 670, 674 (Ga. 2014)).

➢ Authentication; Business Records Exception. Social media posts are not necessarily self-authenticated under the business records rule. Compare United States v. Hassan, 742 F.3d 104, 132-34 (4th Cir. 2014) (upholding district court's authentication of Facebook posts and YouTube videos under FRE 902(11) where "the

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