Employment lawyers know the potential importance of social-media evidence. We’ve written about numerous cases in which an employee is fired for something he posted on Facebook or other social-media site. As a general matter, it is not unlawful per se to make an employment decision based on information obtained from a social-networking site. (Of course, the normal rules apply to social media, too. Thus, it is unlawful to make an adverse employment decision based on race, religion, gender, etc., regardless of the source of that information.)
So employers may make decisions with social-media “evidence.” Whether an employer (or other party) has a right to discovery of such evidence during litigation and, if so, how to go about getting it, are two entirely different questions.
Assuming the employer is able to obtain relevant social-media evidence, there is yet another question to be answered: Is the evidence admissible in the litigation? There is a split among courts as to the appropriate standard for admissibility of social-media evidence. Without oversimplifying it too much, there are two approaches.
First, there is the Texas approach. That approach requires the proponent of the evidence to make some proffer of authenticity. In other words, if you want it to come into evidence, you have to make some affirmative showing that it is authentic. If an employee, for example, denies writing the Facebook post, the employer must offer up some evidence to prove that the evidence is not fraudulent. In short, under the Texas approach, the proponent does not necessarily need to prove that the social media evidence is authentic, so long as a jury “could reasonably find” the evidence authentic.
Second, there is the Maryland approach. This approach imposes a higher standard and requires that the proponent of the evidence offer some sort of evidence to show that the posts are authentic. For example, the proponent could ask the supposed author (i.e., employee) if he or she created the profile or post, search the internet history and hard drive of the purported creator’s computer, or obtain information from the social-networking site itself. Those courts that have followed the Maryland approach cite to a concern that social-media evidence could be fake or otherwise inauthentic.
The Supreme Court of Delaware has now weighed in on the question. In Parker v. State of Delaware, decided last week, the state’s highest court adopted the Texas approach. Specifically, the Court acknowledged that social-media evidence could be falsified but concluded that such evidence should be treated like other forms of evidence. In other words, where a proponent seeks to introduce social-media evidence, he or she may use “any form of verification” available under the Rules of Evidence, including:
witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question.
This is, in my opinion, the correct approach. Social-media evidence should not be made more difficult to authenticate merely because it is “possible” to falsify such evidence. All evidence can be falsified. To make the proponent attempt to authenticate a Facebook post by obtaining some kind of verification from Facebook is more than highly impractical-it can be close to impossible since Facebook will not release much, if any, user information absent a criminal subpoena or written consent from the user himself.
This ruling is an important one-in Delaware and in those jurisdictions where the issue has not yet been decided-and hopefully more courts adopt a similar finding.