The U.S social media usage rate has risen to roughly 70% from 50% in 2011. Facebook, the most widely used, shares the market with Instagram, LinkedIn, Pinterest, and Twitter. About 75% of Facebook users access the network daily. Despite widespread acceptance, introducing information from these sites as evidence in courtrooms has progressed slowly.
Potential Social Media Evidence in a Personal Injury Action
We will assume another driver accidentally strikes your car and you are suffering from whiplash. Your personal injury attorney enters a civil case for damages. Days later, you feel slightly better and decide to attend a birthday party you had prior committed to attending. Many pictures are taken that night, which you post to your social media account. An attorney for the defendant finds these date-stamped photos while researching you, and tries admitting them as evidence against you.
Colorado Bar Association Opinion
The Ethics Committee of the Colorado Bar issued a formal opinion on the ethics of investigational usage of social media among attorneys. The opinion was determined to align with the Attorney General’s position on the subject:
- Public information is allowed under the law or Rules of Professional Conduct.
- Information not intended for the public, or restricted by a user’s social media account privacy settings is prohibited. The exception is if done in compliance with RPC 4.2, which outlines directly contacting represented individuals.
- Attorneys should not send friend requests to access restricted social media information without disclosing their role as an attorney in the case and their professional relationship to the client(s).
Cases Involving Social Media Evidence
Social media can provide electronically stored information (ESI) such as photos, text or video. Two clear hurdles for admissibility are authenticity and hearsay under Rules of Evidence. In the Radazza case in Nevada District Court it was determined that the admission of videos would be allowed if authenticated by satisfying three elements of a business records exception for hearsay:
- Records were created by someone with knowledge.
- There creation was based on standard business practice
- They were stored or maintained according to standard business practice
In Colorado’s State v. Glover, the court considered authentication under the CO Rule of Evidence. The attempt to authenticate used an affidavit from Facebook staff showing the subscriber info, IP information, and messages all linked to the defendant. Records were maintained according to the standard business practices. The court did not allow the evidence because Facebook did not rely on this data for any clear business purposes to warrant insuring its integrity. Dozens of cases nationally illustrate that standards for authentication of social media sourced evidence are likely to continue to develop in courts.
The Law Office of Jeremy Rosenthal is an advocate for those who have endured hardship in Colorado cases of personal injury. If someone’s negligent or reckless actions have caused you suffering, contact the office today to coordinate a consultation at (303) 825-2223.