In the recent Gwyneth Paltrow ski case, the Plaintiff claimed that Paltrow had skied into him leaving him with life-altering brain damage. Paltrow claimed that the Plaintiff had in fact skied into her. The jury decided in favor of Paltrow, awarding her the $1 she was seeking. One of the factors that sunk the Plaintiff’s case was that Paltrow’s attorneys used the Plaintiff’s social media posts to show that he had taken trips to South America, Europe, and Morocco after the accident and was apparently quite active. While this case was in Utah, social media is also an increasingly important type of evidence in California.
In California, social media posts are generally accepted as evidence. This includes private posts. Therefore, as a preliminary matter, it is important to remember that nothing should be posted online that you would be embarrassed to have shown up as evidence in court.
Getting Social Media Evidence Admitted
If you think you might want to use social media as evidence in a case, a litigation hold letter should be sent to the opposing party, or any other party with relevant evidence, as soon as possible, even before litigation is initiated, putting that party on notice that they need to preserve all relevant documents, since they might be needed as evidence in litigation. It is generally a good idea to send such a letter any time litigation is contemplated, but it is particularly important if you think that electronically stored information is going to be sought in discovery, since it is generally easier to delete, either intentionally or unintentionally than paper documents. Since social media posts are all electronic and can generally be deleted easily, an opposing party should be put on notice to preserve them as soon as possible. There can be serious consequences for a party who fails to preserve such evidence after receiving a litigation hold letter. However, it is also a good idea to get copies of any social media posts you intend to use as evidence, in the event they are deleted at some point.
Getting social media admitted into evidence in California Courts can seem daunting, but it is not different from getting other types of documents admitted into evidence. Like any other documents, social media posts must be authenticated before they can be received as evidence. California Evidence Code § 1400 states: “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” The simplest way to authenticate a social media post is generally to get the person who posted it to admit that it is authentic. This can be established during a deposition.
Social media platforms are notoriously resistant to subpoenas, and enforcing a subpoena issued to a social media platform can certainly be challenging and time-consuming. However, a subpoena is not generally necessary when you want to enter a social media post into evidence. It is generally not necessary for a social media platform employee to authenticate a social media post. A subpoena will be necessary, however, if you want to obtain non-public information or documents from a social media platform.
If you are not able to get a party to admit that they created a social media post, you can also authenticate it by describing the process you went through to obtain it, such as what website you went to, how you searched, how you determined the profile belongs to the relevant party, etc. You can also retain an expert witness, ideally with experience in computer forensics, to search for the content themselves and describe their process in detail, including the technical details which make them believe that the post is authentic. You can also request that a party produce social media posts in discovery, and obtaining such documents through discovery to the party which posted them may make them easier to authenticate.
Preventing Social Media Evidence from Being Admitted
In the event you want to prevent social media evidence from being admitted which is harmful to your case, there are several avenues that can be used. One way to try to prevent social media posts from being admitted is to attack the foundation for admitting such posts. If your client has not admitted that they made the relevant posts, you can argue that the opposing party has failed to demonstrate that the post was made by your client or that the post actually came from your client’s account.
Additionally, to the extent that a social media post is harmful to your case, but viewing other posts that your client made on the same topic or around the same time is helpful, you can seek to have those other posts also admitted based on the rules regarding completeness. California Evidence Code § 356 states: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
California Evidence Code Section 1553 provides in part that “[a] printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent.” Therefore, there is a presumption that a printout of a social media post is accurate. However, this presumption can be overcome by presenting evidence that the printouts are not accurate and reliable. Therefore, to keep social media evidence out of a case, you can present evidence challenging the accuracy and reliability of a printed version of a post.
Furthermore, you can also challenge the authenticity of social media evidence using expert witness testimony. If an expert in computer forensics, or a similar field, examines the evidence and determines that it is not an accurate representation of a post or that there is evidence that the post was not created by your client, admission of evidence could be challenged on that basis. Also, the increasing use of artificial intelligence and the ability to create very convincing deep fake images may make it more difficult in the future to prove that an image or a post is authentic. Therefore, the use of expert witnesses in this area will likely become increasingly important in the future.
Use of Social Media by the Jury
There is also the possibility that jurors will try to use social media to learn more about a case outside of what is presented in court. This is prohibited and jurors should not be using social media, or any other outside resources, to try to learn about a case. Jurors are also required to refrain from using social media, or any other platform, for expressing their opinions about the case or posting evidence from the case. Jurors should never use electronic devices in the courtroom. Also, when jurors leave the courtroom, they should be admonished not to conduct their own research or discuss the case. California Code of Civil Procedure § 611 states: “If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to conduct research, disseminate information, or converse with, or permit themselves to be addressed by, any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them. The court shall clearly explain, as part of the admonishment, that the prohibition on research, dissemination of information, and conversation applies to all forms of electronic and wireless communication.”
Also, in a jury case, jury instructions should be used to remind jurors of their duties. For instance, the Judicial Council of California Civil Jury Instruction (CACI) 5000 states in part: “These prohibitions on communications and research extend to all forms of electronic communications. Do not use any electronic devices or media, such as a cell phone or smartphone, PDA, computer, tablet device, the Internet, any Internet service, any text or instant-messaging service, any Internet chat room, blog, or website, including social networking websites or online diaries, to send or receive any information to or from anyone about this case or your experience as a juror until after you have been discharged from your jury duty.” Therefore, appropriate jury instructions should be used to remind jurors of their duties regarding social media and communications.
Parties to a case should also be reminded that in most situations, it is not a good idea for them to be discussing a case on social media, or any other public forum, while a case is pending. If they do comment on a pending case, such comments could possibly become evidence in the case.
In conclusion, social media posts are already an important type of evidence in litigation and will likely become more so in the future. Social media evidence is generally admissible in California, but there are ways to challenge its use as evidence. Moreover, it is generally not necessary to subpoena the social media platform to authenticate a post. Finally, jurors should be frequently reminded of their duties regarding social media while serving as jurors.
Please do not hesitate to reach out to TALG, Ltd. if you have any questions about legal issues relating to social media.