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New Federal Court Rules RE: Social Media Evidence

The Federal Rules of Evidence, just like the world, are ever changing and adapting. In an attempt to keep up with said changes, lawyers are forced to do hours and hours of research, just to ensure that the case breaking evidence they have obtained is going to be admitted. One area of particular concern is evidence that is found online. With so many exceptions and rules, it can be hard to keep up with what information found online can actually be used as evidence.

With the explosion in use of social media use over the last 10 years, the use of social media content has likewise seen an explosion in the courtroom. Due to authentication issues, courts across the country have started excluding social media evidence when presented as screen captures or simple printouts. This new rule addresses that issue. As of December 1, 2017, in accordance with changes to The Federal Rules of Evidence-Rule 902(14) we now have a clearer picture of how to get online content admitted as evidence. Prior to the rule change, authentication efforts often required the testimony of a forensic expert. Now however, evidence which is accompanied by the “digital identification” also known as metadata, will be self-authenticating. Metadata is computer code that sits behind every post, picture, video, etc. which includes the digital fingerprint (MD5 hash value), along with other items relating to the who, when and where of the content along with other things.

The area that this rule change most directly affects is the collection and use of social media evidence. Social media evidence can provide monumental, case changing evidence for many legal matters. Joseph Jones is a Certified Social Media Intelligence Expert and has been one of the industry pioneers in social media investigations and has regularly testified as an expert witness. Those who have attended any of his seminars knows that he has been talking about the need for metadata extraction for years. With this new rule in effect, the courts are taking another step to address some of these unique issues.

So, the question now is, how do we get metadata? Simply saving a post as a .pdf file is not going to preserve the needed information. The extraction of metadata requires a systematic process and use of specialized software by knowledgeable professionals. If your firm is in need of such professionals, Joseph Jones and the investigations team at Bosco Legal Services are available to help.

If you would like to know more about this process or would like additional information on Social Media Investigations we offer free MCLE courses to teach legal and insurance professionals everything they need to know about Social Media Investigations and metadata extraction. Click HERE for more information.