Beck Redden trial lawyers, David J. Beck and Cassie Maneen, discuss authenticating social media and electronic evidence at trial in the latest News from the Bar newsletter published by the Litigation Section of the State Bar of Texas.

1. Introduction

When introducing evidence at trial, one of a trial lawyer’s greatest fears is to hear the words: “Objection. Lack of authentication,” accompanied by the dreaded ruling, “sustained.” This fear is heightened when attempting to introduce electronic evidence. To avoid such problems, it is critical that trial lawyers know exactly what is necessary to authenticate such evidence before offering it. Despite the greater frequency of electronic evidence in today’s increasingly digital world, courts apply the same authentication principles that have long existed because the reliability considerations are essentially the same. A Pennsylvania court summarized well the common-sense approach of applying existing evidentiary frameworks to modern evidence like social media and instant message conversations:

Essentially, appellant would have us create a whole new body of law just to deal with emails or instant 2 messages. The argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty. . . anybody with the right password can gain access to another’s e-mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationary can be copied or stolen. We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of [the rules of evidence and case law] . . . .1

Nonetheless, sponsoring parties of particular evidence should keep in mind that the threshold for authenticity is, by design, not an onerous one. Both the Texas and federal rules keep the preliminary judicial determination limited.2 With this in mind, the steps you must take will differ depending on whether your case is in Texas state court or federal court.

Authentication of electronic evidence, such as the contents of a website, data generated by an app, or information taken from a mobile phone or hard drive can pose a real challenge. Broadly stated, you must convince the trial court that the tendered evidence has not been altered or hacked, that it comes from a certain source, and that it is what it purports to be. In today’s online world, that is no easy task.

Evidence from websites can present serious authenticity issues because their content will change over time. Information currently on a website is less of an authenticity problem because the parties can simply access the website and confirm its content. However, proving up historic information from a website raises the issue of whether the information was actually posted as the proponent says it was. The relevant inquiries are: What was actually on the website at the relevant time? Does the exhibit or testimony accurately reflect its content, and, if so, is it attributable to the owner of the site? Evidence must be submitted to address each of these questions.

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