The use of social media as evidence in court cases has skyrocketed in the past several years. Everything from Facebook to Map My Run histories are now fair game for the courtroom. And social media isn’t being used just for divorce cases – social media is being used in everything from personal injury to commercial law cases. The reason social media evidence has become so prevalent is because people, often unwittingly, put things out in the public sphere without thinking about the implications down the road.
As a result, a lawyer must know the proper way to obtain and use social media evidence. For example, companies like Facebook typically won’t respond to a subpoena – especially if it’s issued from out-of-state. However, with the correct discovery request from a skilled attorney, a person’s entire Facebook history, including all of the deleted posts, can be obtained! So the first key point in looking for a lawyer is identifying one that actually knows how to obtain social media.
The second aspect – actually utilizing the social media as evidence – is equally as tricky. A lawyer must first authenticate the document; meaning, the lawyer must prove that the document is what it purports to be. For example, if you have a Facebook message that looks like it is between two adverse parties, a lawyer must prove that the person that wrote the message is actually the opposing party and not someone that “hacked” into the person’s account or someone pretending to be that person. Then, once the attorney authenticates the document, the attorney must still make sure that the document is admissible under the evidence code (e.g., that it falls into a hearsay exception).
All too often lawyers either fail to get what they need from social media accounts because they don’t know how to obtain it or they get what they believe to be good evidence to prove their case, but fail to ever actually get it admitted because they don’t know how. As a result, you need to make sure that your attorney knows not only how to obtain social media evidence, but how to actually use it at trial!