Case Law

Published Cases
Involving Social Media Evidence


The torrent of social media evidence continues to grow and X1 continues to monitor online legal databases of state and federal court decisions across the United States, where evidence from social networking sites played a significant role. Now, with over 9,500 published cases in 2016, representing over a 50 percent increase from 2015. This is an important metric establishing the ubiquitous nature of social media evidence, its unequivocal and compelling importance, and the necessity of best practices technology to search and collect this data for litigation and compliance requirements.

Below is a selection of key cases involving social media evidence from this year.

US v. Brown (D.C. No. 3-13-cr-00037-001) (3rd Circuit August 25, 2016)

The opening line in the Federal Appellate Court’s opinion reads: “The advent of social media has presented the courts with new challenges in the prosecution of criminal offenses, including in the way data is authenticated under the Federal Rules of Evidence—a prerequisite to admissibility at trial.” The court goes on to rule that social media is not self-authenticating but must be authenticated through extrinsic or circumstantial evidence under Federal Rule of Evidence 901.
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Stewart v. State of Iowa (No. 14-0583) (C.A. Iowa, August 17 2016)

Defendant brought a motion for mistrial after it was discovered (post-trial) through key Facebook evidence that several jurors appeared to be associated with the key witness, despite those jurors’ denials during voir dire. However, the court disallowed the screenshots of the Facebook pages as lacking proper authentication and denied the motion for mistrial. This case underscores the necessity of a timely and proper social media investigation (not mere screen shots), as well as the general importance of conducting social media due diligence on prospective and empaneled jurors.
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State of Louisiana v. Demontre Smith, (La. Court of Appeals, April 20, 2016)

In yet another court decision illustrating why software that supports best practices is needed to properly collect and preserve social media evidence, the Louisiana appellate court, 4th Circuit, issued a written opinion in a felony criminal case disallowing key social media evidence due to a lack of authenticity. Under cross-examination, the police officer, who offered the evidence in the form of screen shots, conceded that she lacked any corroborating circumstantial evidence to support the authentication of the social media posts. The appellate court ultimately ruled: “We find the social media posts the state seeks to introduce at trial were not properly authenticated, as the state presented no evidence in order to carry its burden at the hearing.”
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Xiong vs. Knight Transportation, (D.C. No. 1:12-CV-01546-RBJ) (D. Colo. July 27, 2016)

This case arose out of a personal injury from a major rollover traffic accident and illustrates the importance of performing a diligent and timely social media evidence investigation. The jury awarded the Plaintiff $832,000, finding that she incurred severe pain from her injuries, which impacted her social life and daily activities. Post-trial, a paralegal for the defense counsel found a litany of Facebook evidence apparently showing the Plaintiff taking a trip to Las Vegas, visiting nightclubs, attending a wedding and smiling happily with friends at restaurants. Despite this newly discovered Facebook and Facebook-derived evidence, the district court denied Knight Transportation’s motion, finding that “the new (Facebook) evidence could have been discovered before trial and Knight offered no justification for its failure to develop it earlier.” This decision illustrates the importance of performing a diligent and timely social media evidence investigation, most certainly before trial.
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Sublet v. State, 113 A.3d 695, 698, 718, 722 (Md. 2015)

Maryland determined that "in order to authenticate evidence derived from a social networking website, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be." Under Sublet, the preliminary determination of authentication is made by the trial judge and is a “context–specific determination” based on proof that “may be direct or circumstantial.” The court noted that this standard “is utilized by other federal and State courts addressing authenticity of social media communications and postings.”
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Stallings v. City of Johnston, 2014 WL 2061669 (S.D. Ill. May 19, 2014)

This case clearly illustrates that printing Facebook pages for production in eDiscovery is expensive as well as not defensible. In this case, plaintiff Jayne Stallings brought suit for wrongful employment termination against the City of Johnston, her former employer. And it seems that Stallings, like millions of others, was an avid and highly opinionated Facebook poster. So to respond to discovery requests, Plaintiff’s counsel and a paralegal spent a full week printing out the contents of Plaintiff’s Facebook account — which amounted to over 500 printed screen captures — manually rearranging them, and then redacting the pages. Plaintiff counsel also claimed that she could not provide the relevant Facebook information on a disk, and thus resorted to inefficient paper production – an obviously costly exercise. A week of paralegal and lawyer time could easily run $25,000 and no client should pay anywhere near that amount for a task that, with the right technology, requires minutes instead of days to perform.
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