Disputing Social Media and Smart Phone Discovery

a.                 Contesting the Veracity of the Online Information

Often the best place to begin your challenge of ESI and social media evidence, in particular, is on authenticity.   Every piece of evidence that is admitted must meet a threshold standard of authenticity under F.R.E. 901.   It does not need to be proven that the object is what it is purported to be, only that a reasonable juror could find it to be what it is purported to be.   Federal Rule of Evidence 104(b) makes this a preliminary determination for the judge.   In other words, the judge is the gatekeeper.

Authentication of social media often devolves into two categories.   The first is the identity of the alleged declarant and the second is whether the offered evidence is an accurate representation of the material to be found online.   As discussed previously, courts are increasingly finding a printout of a social media website to be a fair and accurate depiction of a website, but it may still be worth a try if you can point out discrepancies between the current site and the print out.

Calling into question the identity of the social media user has been successful.   The first step, however, is to consider how your opponent will seek to authenticate the information.   If the opponent is likely to utilize F.R.E. 901(b), by having a witness testify as to the origins of the communication, you can attempt to attack their credibility.   If the opposing party is likely to attempt authentication of ESI through distinctive characteristics of the material, attempt to show that the characteristics are not so distinctive.   This is essentially what happened as Griffin v. Maryland, 419 Md. 343 (Md. Ct. App. 2011), moved up the Maryland court system.   Commonly, a successful argument is that others had access to the computer, phone, or media outlet.   Many courts are cognizant that photos and documents may be altered and online accounts hacked.   Consequently, this can be successful even if the other side is attempting to use an expert to show the trustworthiness of the process in which the alleged records are made.   Finally, and if finances allow, you might be able to show another user posted the alleged content through metadata.

b.                 Contesting the Process of Obtaining the Information

There are several possible objections a party may make with regard to the manner in which ESI discovery is conducted.   The first rationale, and perhaps the rationale the courts were initially most willing to accept, was that a discovery request was overly burdensome or costly under Fed. R. Civ. P. 26(b)(2)(B).   Generally speaking, the cost of allowable E-Discovery will vary directly with the amount in controversy.   According to the Comments associated with Fed. R. Civ. P. 26(b)(2)(B) in accessing discoverability the court should consider:   (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources.   Many of these factors are explicitly considered under Fed. R. Civ. P. 26(b)(2)(C), which authorizes a protective order to limit discovery.

Rule 26(b)(2)(C) provides:

When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Be mindful, though, that this is a Federal Rule of Evidence, while adopted in most jurisdictions the particularities of E-Discovery may differ in your jurisdiction.

Also, even if the judge does not find that the material is too burdensome or costly, the judge does have the authority to shift the burden of discovery related costs.   Ordinarily, the producing party bears the burden of the associated costs, but instances where a party requests that documents be provided in a format different from which they are usually kept, may be sufficient to justify expense shifting.   Other factors such as whether the information is available from other sources, such as depositions, interrogatories, requests for admission, or other discovery devices; each party's respective resources; the nature of the issue being litigated; and, each party's ability to control costs.

Further, one can object that the discovery request is likely to produce privileged material.   Fed. R. Civ. P. 26(b)(5)(B) is essentially a clawback provision.   It provides that if information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it.  After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

Finally, and often related to burden and cost, one can object that discovery of, in this case, social media evidence is not relevant to the matter at hand.   In order for any evidence to be admitted, it must as a threshold matter be relevant under F.R.E. 401.   Depending upon what issue is being contested, your client’s social media use may provide no insight as to finances or child care habits.   Further, even if there is evidence to be found, perhaps the purpose for which the materials are being sought is not relevant.   Take infidelity for example, in most no-fault jurisdictions, evidence of marital indiscretion so long as it is not wasting marital resources is irrelevant.

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