As of the third quarter of 2017, 2.07 billion people actively used the social networking site Facebook on a monthly basis. (1) Instagram, the mainly mobile photo-sharing network, serves 800 million active monthly users. (2) Snapchat users view more than 10 billion videos on the mobile application every day. (3) Statista reports that WhatsApp, a smartphone messaging app, has more than one billion monthly active users. (4) These statistics serve to illustrate the monumental influence digital networking wields upon contemporary society.
Although some digital evidence is self-destructing because of the nature of the technology employed, innovative forensic investigators are able to recover seemingly transient data for use in later court proceedings. Digital evidence is often critical in proving or disproving a material issue. Thus, a court determination regarding the admissibility of such evidence can create profound consequences on the outcome of a case. Although the proliferation of recovered digital evidence has created a burgeoning body of caselaw, the courts are not always unified in their approach to determining the admissibility of such evidence. Considering this landscape, and as the digital revolution continues to engulf the world, many legal practitioners struggle to formulate workable guidelines to assist them in admitting internet posts and messages at trial.
This article focuses on the use of traditional evidentiary principles in establishing a sufficient foundation for the admission of internet postings and messages under Florida law by 1) establishing relevance; 2) proving authenticity; and 3) demonstrating that the posting or message falls within a recognized exception to hearsay.
The Florida Evidence Code is devoid of specific provisions governing the authentication of social media posts or text messages. However, at least one legal scholar has noted that "the emergence of social media such as email, text messaging, and networking sites like Facebook may not require the creation of new rules of authentication with respect to authorship." (5) In Florida, the general rule is that "[a]ll relevant evidence is admissible, except as provided by law." (6) Further, "[r]elevant evidence is evidence tending to prove or disprove a material fact." (7) Lastly, "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." (8) Thus, as with any other evidence, the threshold issue for the admissibility of social media posts or messages is relevance.
The pragmatic impact of multiple sources contributing to data is illustrated by the following hypothetical Facebook post. A Facebook user, Lisa Smith, "checks in" at a local restaurant and posts a photograph of her and several friends at the venue. The post reflects a geotag confirming the location of the restaurant. Additionally, a time and date stamp appears on the post. Smith has posted the following description of her observations: "The avocado toast is scrumptious." She tags her companions. Several of her Facebook "friends" immediately post comments, including:
"My cousin is working and just saw you there!" Smith later claims food poisoning and sues the restaurant. A review of her post yields information regarding what she consumed that day, input by her, witnesses present that day, tagged by her, and confirmed by them, her location, tracked by geotag, and a comment confirming a server saw her, input by a third party. Although each of these quantities could serve to prove or disprove a material fact, each discreet piece of information will require a different analysis for admissibility.
In determining relevance, discreet pieces of information discernible from a single post must be isolated to determine whether they have bearing on a material fact. Succinctly stated, the proponent must identify which piece of data is relevant to prove or disprove the fact that is at issue in the case. In light of this consideration, a significantly different analysis should be used to determine admissibility of Smith's statement, "The avocado toast is scrumptious," as compared to demonstrating exactly the location at which the post was made, who was present at the venue, who viewed Smith's post, or a viewer's articulated reaction to the post.
Several Florida appellate opinions address the relevance of electronic evidence in the context of discovery disputes. In Root v. Balfour Beatty Const. LLC, 132 So. 3d 867 (Fla. 2d DCA 2014), the Second District Court of Appeal considered the propriety of an order compelling the production of Facebook pages. (9) The trial court required the plaintiff, who was claiming loss of consortium following injury to her three-year-old son, to produce electronically stored information relating to her mental health, alcohol use, and relationships with friends and family members. The appellate court considered whether the order was overly broad, and began by noting that "trial courts around the country have repeatedly determined that social media evidence is discoverable." As the plaintiff's claim was premised upon loss of consortium, the court stated that discovery should have been limited to evidence related to the impact of the child's injury upon his mother. As such, the compelled production was irrelevant and the discovery order was quashed. The court did conclude with the following caveat: "Should further developments in the litigation suggest that the requested information may be discoverable, the trial court may have to review the material in camera and fashion appropriate limits and protections regarding the discovery." (10)
In a later opinion, Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015), the Fourth District Court of Appeal conducted certiorari review of a lower court order compelling the discovery of photographs from a personal injury plaintiff's Facebook account. In the underlying suit, the plaintiff claimed she slipped and fell on a foreign substance on the floor of a Target store. Following the plaintiff's deposition, Target sought production of photographs from the plaintiff's Facebook page, alleging that it was entitled to view her profile, as her lawsuit placed her physical and mental condition at issue. The plaintiff responded by asserting that disclosure violated her reasonable expectation of privacy and contended that Target's motion amounted to a fishing expedition. Target narrowed down its requests, and the plaintiff raised objections, including relevance. The trial court ordered the plaintiff to provide copies or screenshots of all of the photographs associated with her social networking...