By John Patzakis
The Best Evidence Rule, as codified in Federal Rule of Evidence 1002, provides that an original writing, recording, or photograph is required to prove the contents of the document. This rule was formulated in a paper document dominated era, and aimed to prevent fraud and inaccuracies that could arise from secondary or duplicate evidence. However, the prevalence of electronically stored information (“ESI”) prompted exceptions to this rule when it comes to computer-generated evidence. Specifically, FRE 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) means 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, it is very different when it comes to screen shots of social media posts. Because screen shots 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.
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 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 X1 Social Discovery 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.
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. As a result, attorneys should be aware that courts are unlikely to find that screenshots alone are 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.
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