tious account and masquerade under
another person’s name or can gain access
to another’s account by obtaining the user’s username and password,” combined
with the fact that “a person observing
the online profile of a user with whom
the observer is unacquainted has no idea
whether the profile is legitimate.” In short,
courts want to know if the account owner
actually posted, tweeted or uploaded the
social media evidence in question.
Given that courts want (and eviden-
tiary rules require) proof that the social
media content is genuine, here are some
ways to authenticate social media evi-
dence and get it admitted in court:
•;Written discovery. Propound Requests
for Admission that require claimants
to admit or deny that they created or
posted the social media at issue.
•;Deposition testimony. During depositions, claimants can be asked if they created the social media profile and posted
the picture or statement in question.
• Forensic inspection. Examine the
claimant’s hard drive or smartphone
to determine if that device was used to
create the social media profile or created the evidence in question.
• Stipulation. Simply ask opposing
counsel to stipulate to the authenticity of the social media evidence sought
to be introduced at trial — the answer
may, surprisingly, be “yes.”
The bottom line on social
Social media usage increases by the day.
People are constantly finding new ways
to share nearly every aspect of their lives
online. For those professionals who are responsible for handling or defending claims,
it is imperative to devise a social media investigation strategy to obtain evidence that
just may “make or break” a claim in your
favor. What is your strategy?
Jeremy Rogers, Esq., is a senior attorney
with litigation defense firm Smith Freed
& Eberhard, P.C. He assists in special
investigations, offers coverage advice,
and defends carriers and insureds in
federal and state court litigation. He can
be reached at firstname.lastname@example.org.
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