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Best Evidence Rule Requirements For Social Media Evidence

What is the Best Evidence Rule (Or FRE 1002)?

The Best Evidence Rule, as codified in Federal Rule of Evidence 1002 (FRE 1002), is a principle in the law of evidence that governs the admissibility of the contents of writing, recordings, and photographs in court.

The rule stipulates that if you want to prove the content of a writing, recording, or photograph, you must produce the original document, recording, or photograph. This is based on the idea that the original piece of evidence is the most reliable and accurate source of information about its contents — aka. the best evidence.

What is the Best Evidence Rule for Electronically Stored Information (ESI)?

The Best Evidence Rule was codified in Federal Rule of Evidence 1002 on January 2, 1975. It was formulated in a paper document dominated era aiming to prevent fraud and inaccuracies that could arise from secondary or duplicate evidence.

However, the rise of electronically stored information (ESI) prompted exceptions to this rule when it came to computer-generated evidence.

As such, Federal Rule of Evidence 1001(d) was drafted to provide clarification for how ESI was to be treated under the Best Evidence Rule:

“For electronically stored information, ‘original’ means any printout — or other output readable by sight — if it accurately reflects the information.”

FRE 1001(d) stipulates that for most forms of ESI, including electronic documents, emails, digital photos, and video files, an exact copy of those items will suffice under the Best Evidence Rule. And because it is very easy to create an exact copy of electronic evidence (as any eDiscovery practitioner who has ever “de-duped” ESI can attest to), the Best Evidence Rule has been almost forgotten in the ESI era.

However, The Best Evidence Rule has very different significance when it comes to social media evidence -- specifically screenshots of social media posts submitted as evidence. Because screenshots are truncated images of the full native social media posts, they are not exact copies of the original as defined under FRE 1001(d).

In fact, given the unfortunately extensive but erroneous reliance on screenshots of social media evidence, The Best Evidence Rule could be cited far more frequently by opposing counsel seeking to contest the admission of such evidence.

Best Evidence Rule Case Study: Edwards v. Junior State of America Foundation

A case out of the federal courts in Texas addressed this issue head on. Edwards v. Junior State of America Foundation, is a civil litigation matter involving the intentional destruction (spoliation) of social media evidence. The plaintiff had deleted his Facebook account resulting in lost evidence critical to the case. The court cited an affidavit submitted by an eDiscovery expert witness who noted that when X1 Social Discovery (now Pagefreezer) was used to collect from the Plaintiff’s Facebook account, key evidence that existed prior to the litigation was missing because it had been deleted by the Plaintiff prior to the collection.

As a result of the spoliation established in large part by the X1 Social Discovery examination, the Court imposed severe evidentiary sanctions on the plaintiff, including the exclusion of evidence and claims related to the destroyed Facebook data, and adverse jury instructions.

Texas Court Determines Social Media Screenshots Do Not Satisfy Best Evidence Rule

The plaintiffs’ had sought to offer screenshots as evidence of the Facebook communications instead of the deleted native files. The court ruled that the metadata and full context of the native files were essential to satisfy the Best Evidence Rule.

The court held that screenshots were not an output that accurately reflected the substance and context of the native file, since they could not show that the messages were authentic, nor could they “be used to prove that Harper sent the Facebook Messages contained in the screenshots.”

Failure to produce the native files prejudiced the Defendants, in part, because it deprived them “of the ability to substantiate or refute the authenticity of the alleged messages.” In a key passage the court states:

“Here, the screenshots will not suffice as an ‘original’ because the screenshots are not an ‘output’ that accurately reflects the information. Only native files can ensure authenticity. Additionally, although the Best Evidence Rule allows for an original ‘photograph’ to prove the contents of the photograph, this does not mean that the screenshot here can be used to prove that Harper sent the Facebook Messages contained in the screenshots.”

Edwards demonstrates that the collection and preservation of full native social media posts is vital to both that evidence’s authentication and obtaining the full context and substance of the posts under the Best Evidence Rule. The court found that screenshots, which truncate social media posts and omit key metadata, do not suffice.

What are the Best Evidence Rule Requirements For Social Media Evidence?

When it comes to satisfying the Best Evidence Rule for social media evidence, different states and courts will have different requirements. But for general guidance, the following best practices can help you satisfy the Best Evidence Rule for social media posts:

  1. Provide the original content in the original format. Courts have preference for the original digital format from the social media platform. This makes the evidence easier to read, verify, and evaluate.
  2. Include complete Metadata. Metadata associated with the post is essential for proving authenticity of the evidence and should include timestamps, author information, IP address, and any other relevant data. 
  3. Capture the context. Ensuring the content retains its original meaning and context is essential, so make sure to preserve the social media evidence in its native format with all associated content and context.
  4. Include digital signatures. A digital signature or hash value is an algorithmically generated number string that is associated with a particular file. It’s impossible to change the file without changing the associated hash value as well. This is used to ensure authenticity of records and establish the chain of custody.
  5. Collect evidence from multiple social media platforms associated with the person. Usernames and profile photos that are used consistently across their social media profiles can help prove ownership.

For legal proceedings, using specialized software and methods to collect and preserve social media evidence is crucial to meet these requirements.

Satisfying Social Media Best Evidence Rule with Pagefreezer

Attorneys should be aware that courts are unlikely to find screenshots alone sufficient to authenticate a social media post and will likely insist on the native files. To ensure this data is collected defensibly, attorneys should work with best practices software and methods to preserve and collect social media evidence and underlying metadata so that they can be properly authenticated and admitted in court.

Do you need to capture social media content for evidence? Learn how to capture complex, legally-admissible social media and web evidence with our guide. Download the Guide.

Additional Resources

  1. How to Use Social Media in Fraud Investigations
  2. Capturing Website & Social Media Metadata
  3. Reference Guide: Collecting Authenticated Digital Evidence

Editor's Note: A version of this blog post originally appeared on the X1 Social Discovery blog. It has been updated and expanded for Pagefreezer after acquiring X1 Social Discovery. 

John Patzakis
John Patzakis
As Founder and Executive Chairman of X1, John leads the company’s strategy and business development efforts. He has an extensive background and expertise in eDiscovery and corporate compliance, combining strong knowledge of both the law and the supporting technologies in those areas. Prior to joining X1, John served as a consultant providing strategic planning and product strategies to eDiscovery and compliance solution providers. John also spent nearly a decade at Guidance Software, Inc. (NASDAQ: GUID) where he held senior management positions, including Chief Strategy Officer, Vice Chairman, Chief Legal Officer and President and CEO. While at Guidance, John led the transition of the company from start-up to a major enterprise software firm and grew revenues from $5 million to $40 million during his tenure. Prior to joining Guidance, John spent eight years practicing law in the fields of commercial litigation and business transactions. John received an undergraduate degree from the University of Southern California and a JD from the Santa Clara University School of Law.

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