Question:

It’s nearly 6 pm and you’re anxious to get out. It’s time to catch up on the latest episodes on the Game of Thrones show. Curiously, you feel like that show is a reflection of your life in the law practice. 

This is not what you expected when you took that LSAT seminar in your last year of college. Plus, you’re not too sure about this city especially with the rumors of a large Bat that comes out at night. Then what about this character called the Joker; is this guy for real? This city just oozes weirdness. You miss Central City.

Then Dent walks in your office waving an article about Metropolis. 

You wonder if it’s about the flying guy that is apparently from another world. Now that’s the life! Flying; bulletproof; heat-vision; x-ray vision, can run faster than a speeding bullet, super-strength. And doesn’t he have some kind of a relationship with an Amazon goddess? 

No. The article is about how there is a court ruling from Metropolis has breathed new life in the social media debate. You quickly scan the article which talks about how attorneys collecting relevant social media evidence must be prepared to properly authenticate it. 

In this article, the criminal defendant argued on appeal that the government had properly failed to authenticate certain Facebook posts attributed to him because the government failed to produce any witness identifying the Facebook chat logs on the stand. He argued nothing in the contents of the message was uniquely known to the defendant and the defendant was not the only individual with access to the Facebook account issue. 

In addition, the court rejected government’s argument that Facebook posts were business records that may be “self-authenticated” by way of a certificate from a records custodian under Rule 902(11) of the Federal Rules of Evidence. Much of it can be, you suspect, attributed to the court’s inherent mistrust of social media evidence with all the “fake news” accusations flying around. 

Dent looks at you for your thoughts because he’s actually leading a case whose evidence rests on offering social media evidence for its evidentiary matter. He wants to know whether (1) authenticating social media is the same as traditional paper evidence under Federal Rule of Evidence 901; and (2) what are the various instances where social media will enjoy a strong likelihood of being deemed authenticated; and also (3) how should one consider preserving social media in the future?