Most attorneys by now are accustomed to the use of social media in discovery. As we become more familiar with digital technology, it will play a greater role in litigation. In California there is no case on point to guide the way to introducing evidence of social media postings in trial. My introduction to the devastating use of social media in a personal injury case came about ten years ago when I represented a young man as a defendant in an automobile accident case.
My client, Mario (not his real name), was allegedly racing his souped-up Honda Civic north on California Highway 39, which provides miles of curves and switchbacks between Azusa and the San Gabriel Mountains, at nighttime, when he collided with another car containing two plaintiffs which was coming south down the mountain. The issue was whether either driver had been speeding and had crossed the double yellow line into the other’s lane. There were no eyewitnesses and the police report was inconclusive. The damage to the cars could have been consistent with either version.
Of course my client, a young man in his teens, vehemently denied any wrongdoing. I had met with him and his father, the named insured and car owner, and he stuck to his story. On that basis the plaintiffs’ claims were denied. As you’ve probably guessed by now, my client and I were in for a surprise.
My client’s deposition was set after we had responded to plaintiff’s discovery denying liability. I prepared my client fully before the deposition day. On the day of the deposition I showed up with my client and his father. Dad wanted to watch his son testify. Plaintiff’s attorney carefully went through the facts of the accident, setting the trap. Once my client was fully committed to his version, we took a break.
Returning from our short break plaintiff’s counsel had a DVD player set up in the conference room which featured a large flat screen TV. on one wall. After starting the deposition back up, he played for us a video from YouTube which showed a fast-moving car from the perspective of the driver through the front windshield looking forward onto the highway ahead. It was nighttime and the highway was illuminated by the car’s high beams. The car was obviously going at high speed, cutting apexes and swerving back and forth over the double yellow line, until a collision with another car. The DVD was slowed down to an excruciating frame-by-frame pace which clearly showed the impact occurred on the downhill side of the roadway with plaintiffs’ car.
Next, on the record, my client was asked about the video. At first he denied knowledge of it until plaintiff’s counsel asked him if he had uploaded it to YouTube. I asked for a break and took my client outside with his father. Mario finally admitted, while his father and I glowered at him, that he had filmed his race up the mountain with a GoPro mounted inside his Honda. Incredibly, he had proudly uploaded the action onto YouTube, for all to marvel at his driving prowess. Of course I admitted liability and persuaded the carrier to settle the case.
I found out later that the plaintiffs had seen the camera mounted inside Mario’s car and had alerted their attorney. Plaintiff’s attorney had no need to further authenticate the video after Mario admitted he was the originator. But what if my client had not admitted his authorship?
Having learned the value of social media, I have used it to good advantage in my cases. In one I found the plaintiff on YouTube being filmed while skeet shooting long after the accident with my client. He had alleged that his shoulder, (the same one he braced his shotgun with), was so painful as to prevent him from engaging in any activity with it. In another I located the plaintiff on his fiancée’s Facebook page which featured the happy couple swimming, riding motorcycles, and skiing at various vacation spots after the accident, in which he had sustained allegedly life-altering neck and back pain. (Plaintiff’s own Facebook page contained nothing useful).
In both cases the incriminating evidence was verified by the plaintiffs during their depositions. But what if it had not been authenticated by the subject? California Evidence Code §1400 requires authentication of a writing, but are Facebook and YouTube postings “writings”? The caselaw does not yet exist to overcome a hearsay objection in these situations. There are problems with proof involving authentication which must be overcome to make use of such evidence at trial. The subject may claim he or she did not post the item, or it is not really the subject shown in the posting, or the posting was somehow manipulated.
One case often cited in a discussion of this problem is People v. Beckley, (2010) 185 Cal.App.4th 509. In Beckley, the prosecutor’s failure to authenticate a photograph downloaded from the defendant’s MySpace homepage should have barred the admission of the photo at trial, according to the Court of Appeal. The appellate court relied on Evidence Code Sections 250 and 1401 for the definition of a photograph being a writing which must be authenticated, and then the bench reached way back to two cases, decided 68 and 53 years ago to support its decision on what is necessary to authenticate a photograph. Not particularly enlightening for attorneys practicing in the digital age.
One of the most recent California cases to discuss admissibility of a photograph at trial, Christ v. Schwartz, (2016) S.O.S. 4107 - filed Aug. 12, 2016, Fourth District, Div. One concerned a simple automobile accident in which defendant offered and the court accepted photographs of the minor damage to the two cars. The plaintiff, claiming personal injury damages for negligence, argued, “that in the absence of foundational expert testimony of biomechanical experts, the post-accident photographs of the vehicles involved in the collision invited the jury to speculate on the relationship between visible damage to the plaintiff's vehicle and actual impact on its occupant.” Plaintiff found no California cases supporting this argument and therefore she relied on a 2001 Delaware Supreme Court decision. The Fourth District upheld the admissibility of the photos, holding the determination to do so was within the trial judge’s discretion.
By analogy to Beckley and Schwartz, the admissibility of material gathered from the Internet will depend (1) on longstanding Evidence Code provisions and caselaw setting forth the admissibility of documents (writings) and photographs, and (2) judicial discretion. Counsel seeking to admit photographs, videos, quotes, text messages, Tweets, MySpace and Facebook posts and the like will have to authenticate the items as best as possible, prove to the court the reliability of the material, and overcome objections that under Evidence Code §352 the material is more probative than prejudicial. Caselaw will eventually catch up with the technology, but until then it seems clear that digital evidence must be tested by the same rules which common law has used for centuries.