As individuals are posting more and more of their personal day-to-day thoughts, whereabouts, and photographs on social networking sites such as Facebook and Twitter, it should come as no surprise that lawyers are turning to the internet to mine this data to assist them in preparation for litigation. However, both obtaining and admitting this information into evidence is proving a challenging task. Attorneys wishing to obtain information in the form of photographs, status updates, wall posts and messages are faced with the challenge of privacy concerns, and authenticating the information once received. Similarly, judges who aren’t familiar with the functionality of social media are faced with the challenge of applying archaic evidentiary rules to this modern fast moving technology.

When it comes to obtaining an individual’s social media history through discovery, New York courts have found that the information obtained from social networking sites are at a minimum discoverable. In an August 2011 decision, Romano v. Steelcase, Inc., Judge Spinner of the New York Supreme Court, Suffolk County, ordered a plaintiff to turn over the contents of her Facebook and Myspace pages to the defendant after the court found that the information contained in the pages were both material and necessary to the defendant’s defense of the action. The court weighed the plaintiff’s privacy concerns versus the defendant’s need for the information and found that the plaintiff’s privacy concerns were outweighed by the fact that her social networking information contained certain information inconsistent with her claims regarding the nature of her injuries, and loss of enjoyment of her life.

On the other hand, Connecticut attorneys are facing an uphill evidentiary battle when faced with the admissibility of social media content. The Connecticut Appellate Court in State v. Eleck 23 A.3d 818, 130 Conn.App. 632 (Conn.App. 2011) imposed a high bar for a party seeking to admit this type of evidence. In Eleck, the defendant who was charged with assault attempted to impeach a witness who testified against him. According to the witness, she had not communicated with the defendant since the assault; however, to impeach her testimony the defense offered facebook messages to show she had indeed communicated with the defendant. The witness then claimed that she did not author the messages as her facebook page had been hacked and she was not able to gain access. Based on the witnesses’ denial the court found that the defense had not adequately authenticated the messages pursuant to the Connecticut Code of Evidence §9-1, thus they were inadmissible.

As it stands, the current standard imposed by the Eleck court requires a showing that both: (1) the evidence originated from a particular social media account, as well as (2) providing additional authenticating facts to prove the authorship of the information. The standard will no doubt prove difficult for attorneys seeking to admit evidence from social networking sites as they may not be privy to additional facts to authenticate the authorship. One solution would be the implementation of a new evidentiary rule which shifts the burden to the party denying authorship to refute the data’s authenticity.