What’s Happening? The Impact of FRE 902(14) on eDiscovery.

Be careful what you post on  the Internet.

Not everyone listens to this warning, and those who ignore it could see their posts, tweets, shares, and likes front and center — in court.

But how are tweets and other forms of social media admitted into evidence? The answer: Federal Rule of Evidence (“FRE”) 902(14).

What is FRE 902(14)?

In general, the comprehensive and widely used FRE 902 allows certain self-authenticating evidence to be admitted without extrinsic evidence of authenticity. Litigators rely on this rule for certain documents such as public records, newspapers, and other uncontroversial documents.

On December 1, 2017, subsection 14 was added to FRE 902 to streamline the admission of electronic evidence by replacing in-person testimony with written certifications.

Rule 902. Evidence That Is Self-Authenticating:
“The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
. . .
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).”

Because the data contained on social media platforms is considered data from an electronic device, it is subject to FRE 902(14).

Interpreting FRE 902(14)

FRE 902(14) can be divided into three elements. It permits self-authentication of data from social media platforms and other similar evidence if:

• Copies are made through a digital identification process;
• A qualified person can submit a written certification regarding the digital identification process; and
• Reasonable notice of the intended use is given to the opponent.

Each of these elements is discussed in turn below.

Digital Identification Process: In its comments to FRE 902(14), the official Advisory Committee describes one acceptable digital identification process. This process involves a specialized software that compares two documents’ “hash value[s].” A hash value is an alphanumeric sequence of characters that is unique to that document. Thus, if the original document, e.g., a Facebook page, and a copy of the Facebook page have the same hash value, there is a very high probability that the documents are identical – at least in the eyes of the court. Despite describing only one digital identification process, the Committee notes that “[t]he rule is flexible enough to allow certifications through process[es] other than comparison of hash value, including by other reliable means of identification provided by future technology.”

Qualified Person & Written Certification: Not just anyone can attest to the digital identification process. Under FRE 902(14), proponents must submit written certification by a “qualified person.” A qualified person is someone who knows how data systems operate (e.g., someone who would be able to establish authenticity through testimony at trial, such as an IT specialist or an e-discovery vendor). Acceptable written certification replaces in-person testimony. Whether submitted by certification or testimony, the information provided must be sufficient to authenticate the proffered evidence.

Reasonable Notice: FRE 902(14) adopts FRE 902(11)’s notice requirement. FRE 902(11) requires proponents to give any adverse party reasonable written notice – before trial – of the proponent’s intent to use the social media evidence. What is considered reasonable notice is case-specific. However, per FRE 902(11), proponents must, in all cases, make certifications available for inspection so “that the [adverse] party has a fair opportunity to challenge them.”

FRE 902(14)’s Effect on eDiscovery Practice

FRE 902(14) provides specific steps and instructions to determine the admissibility of social media evidence.  As a result, litigators likely will have seen in the past year, and will continue to see, a reduction in trial costs, lessening of unnecessary evidentiary disputes, and a more streamlined discovery process.

What FRE 902(14) Does Not Do

For all its benefits, FRE 902(14) also has its limitations. While the rule addresses authentication of social media evidence, it is silent on accuracy, relevance, ownership, or control of such evidence. It also does not overcome any hearsay objections. For example, written certification can establish that the web page is what the proponent says it is (e.g., a LinkedIn account listing the defendant as a Harvard graduate), but it does not prove the substance (i.e., that the defendant actually graduated from Harvard).

Strategies for Lawyers

Considering the prevalence of social media and the increasing impact of social media activity at trial (one need only to look at the impact of the U.S. president’s tweets in lawsuits against his administration to verify this), below are strategies for litigators to ensure discovery is streamlined if litigation arises:

• Be familiar with companies’ online presence and how online activity can be verified, including identifying knowledgeable personnel. 
• Preserve electronically stored information as it relates to social media for a reasonable amount of time (what is reasonable could depend on the size and nature of the business).
• Keep staff and IT departments up-to-date on eDiscovery certifications and forensic techniques.
• Keep up-to-date on emerging technology and other ways electronic evidence can be digitally identified.
• When issuing legal hold notices, be sure to include metadata, social media accounts, and social media posts in the list of items to be preserved.
• Identify social media information such as Twitter handles, Facebook, or LinkedIn name(s), etc., in initial disclosures, automatic disclosures, joint statements, and in requests for production.