Unlike a phone call or in-person comment, social-media posts are more permanent and potentially public, presenting the possibility of either a gold mine or minefield of evidence in litigation. Obtaining social-media evidence relevant to your litigation is now a must, and has rocketed to the top of every litigator’s checklist of potential evidence sources. However, the value of evidence that is not properly authenticated disappears. Attorneys collecting relevant social-media evidence must be prepared to properly authenticate it.
The first step in the analysis for authenticating social-media evidence is the same as traditional paper evidence: satisfying Federal Rule of Evidence 901. Under that rule, a proponent should be prepared to demonstrate that the information in the exhibit in question appeared on the referenced website, and that the exhibit accurately reflects the information as it appeared on the website.
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