Cleveland Family Lawyer   |   Divorce   |   Custody Support   |   Estate Planning   |   Wills   |   Trusts   |   Probate   |   Premier Legal Services

Social Networking Evidence - Five Elements for Admissibility

January 1, 2011

In Lorraine v. Markel Am. Insurance Co., 241 F.R.D. 534 (D. Md. 2007), the court identified five evidentiary issues that must be overcome in order to introduce electronically stored information as evidence at trial.

First, the information must be relevant.  This should be easy to establish since social networking information provides a litany of photos, status updates and commentaries discussing your client’s or other parties’ personal conduct and behaviors.  Photos of parents who appear intoxicated with their children around, for example, should be relevant to the issue of fitness for custody.  In states that permit a showing of fault, pictures or messages that relate to extramarital affairs are clearly relevant.  Photos that show a spouse and his or her newly acquired expensive goods can be relevant to defeat a claim of lack of resources available for support.

Second, the attorney offering the evidence must also show that the probative value of the message or images substantially outweighs any dangers of unfair prejudice.

Third, the proponent must authenticate the evidence.  It appears that many judges routinely permit the introduction of Facebook-acquired information because the author of this information, if a party to the action, is available to testify to its authenticity.  Alternatively, you can authenticate a photo by showing that it is an accurate depiction or description of the individual.  The person who obtained the information can also testify as to how and when it was obtained.

Overcoming hearsay objections is the fourth issue.  If you are trying to admit the statement to prove the matter asserted, then you must establish a hearsay exception.  Images and photos on websites are not hearsay unless they depict the matter asserted.  Messages and images on social networking sites are more often used for non-hearsay purposes such as for impeachment or to establish a state of mind, motive, or purpose.

The fifth issue to deal with is the “original writing” evidentiary rule which requires that the original record be produced if it is available.  Some technology-friendly courts consider a copy of the original message or image as having the same evidentiary value as the original.  The copy must accurately reproduce the original and simply printing from the website should accomplish this. 

If  the message or image has been removed from the social networking website, an exception to the “original writing” rule can permit secondary evidence when the original is no longer available due to unintended or intended conduct.  Additionally, you can request the original message or image from the social network website provider but these providers tend to resist such requests.  They claim that divulging this information violates the federal Stored Communication Act which prohibits any electronic communication service “from knowingly divulging the contents of any communication while in electronic storage by that service to any person other than the addressee or intended recipient.”

Simon W. Johnson
Name
Phone
Email
Comments/Questions
The Cleveland Accident Injury Lawyer on BlogSpot Twitter Facebook LinkedIn
June 23, 2017
If your child has been seriously injured or killed as a result of another person's negligent conduct, then you may want to consider your legal remedies to hold the wrongdoer accountable. A Beachwood Ohio wrongful death attorney can help.
June 23, 2017
If the negligence of a children welfares agency or a mandatory reporter of abuse has caused serious injury or death to your minor child, you may be able to pursue legal remedies. Discuss how to proceed with a Cleveland Ohio child abuse attorney.
June 23, 2017
If a doctor's mistake has caused the death of your loved one, you may want to discuss what happened with a Cleveland Ohio medical malpractice lawyer or a Cleveland Ohio wrongful death attorney.
June 23, 2017
A personal injury attorney in Mayfield Heights Ohio can help you decide whether or not to file a lawsuit if your injuries may have been caused by another person's negligence.
June 23, 2017
If you have been injured in your head, please discuss what happened with a Cleveland Ohio head injury attorney or a Cleveland Ohio brain injury attorney.
PDC Building
3659 Green Road, Suite 325
Beachwood, Ohio 44122
Phone: (440) 477-6075
Fax: (216) 292-4615
Fax: (440) 756-1334
swj@swjlawoffice.com

Quick Contact

Name
Phone
Email
Comments/Questions
The Cleveland Accident Injury Lawyer on BlogSpot Twitter Facebook LinkedIn
Lawyer

Latest News

June 23, 2017
If your child has been seriously injured or killed as a result of another person's negligent conduct, then you may want to consider your legal remedies to hold the wrongdoer accountable. A Beachwood Ohio wrongful death attorney can help.
June 23, 2017
If the negligence of a children welfares agency or a mandatory reporter of abuse has caused serious injury or death to your minor child, you may be able to pursue legal remedies. Discuss how to proceed with a Cleveland Ohio child abuse attorney.
June 23, 2017
If a doctor's mistake has caused the death of your loved one, you may want to discuss what happened with a Cleveland Ohio medical malpractice lawyer or a Cleveland Ohio wrongful death attorney.
June 23, 2017
A personal injury attorney in Mayfield Heights Ohio can help you decide whether or not to file a lawsuit if your injuries may have been caused by another person's negligence.
June 23, 2017
If you have been injured in your head, please discuss what happened with a Cleveland Ohio head injury attorney or a Cleveland Ohio brain injury attorney.

Contact Information

PDC Building
3659 Green Road, Suite 325
Beachwood, Ohio 44122
Phone: (440) 477-6075
Fax: (216) 292-4615
Fax: (440) 756-1334
swj@swjlawoffice.com
Home   |   Mission Statement   |   Privacy Policy   |   Terms & Conditions   |   The Cleveland Accident Injury Lawyer   |   News   |   Family Law   |   Divorce   |   Dissolution   |   Legal Separation   |   Child Custody   |   Child Support   |   Shared Parenting   |   Spousal Support (Alimony)   |   Property Division   |   Post Decree   |   Prenuptial Agreements   |   Third Party Visitation   |   Estate Planning   |   Personal Injury   |   Other Practice Areas   |   Attorneys   |   Resources   |   FAQ   |   Contact
All Rights Reserved 2017, Law Offices of Simon W. Johnson - Admin Login   |   Cleveland web design by Alt Media Studios

The Law Offices of Simon W. Johnson provides legal services to Cuyahoga County, Geauga County, Lake County, Lorain County, Summit County, Stark County, Portage County, Medina County and Ashtabula County including Beachwood, Chagrin Falls, Cleveland, Cleveland Heights, East Cleveland, Lakewood, Lyndhurst, Mayfield, North Olmstead, Parma, Rocky River, Shaker Heights, Solon, South Euclid, Strongsville, Warrensville, Westlake, Chardon, Akron, Barberton, Stow, Elyria, Lorain, Canton, Mentor, Painesville, Willoughby, Kent, Ravenna, Medina, and Ashtabula.