Maryland Court of Appeals on Social Media Authentication

The Maryland Court of Appeals has ruled that social media authentication should be held to a high standard. In Griffin v. State, 419 Md. 343, 363, 364 (2011), the Maryland Court of Appeals found social media evidence must be shown to have not been subject to hacking or other manipulation.

Circumstantial evidence under the reasonable juror standard is not sufficient. Facts in some cases before the Maryland courts indicate that if a user of a social media account has shared her password with other people courts will find there is not sufficient grounds to authenticate the evidence. However, courts have also excepted evidence in situations in which detectives also made use of special software in order to confirm the identity of a person making social media posts.

In Griffin, Maryland Court of Appeals set up a three-factor test:

1. Did the purported user acknowledge that they created the post?

2. Does analysis of the computer show that a user of the computer made the post?

3. Has the social networking site been able to confirm that a particular user made a particular post?

If any one of these three points is confirmed the social media evidence will be authenticated.

Preservation Subpoenas

A mere written demand to preserve ESI does not create a binding legal duty on a third party to not destroy the data. In its Commentary on Rule 45 Subpoenas to Non-Parties, the Sedona Conference recommends of the use of preservation subpoena.

It cites Koncelik v. Savient Pharms., Inc., No. 08 Civ. 10262, 2009 WL 2448029, at *2 (S.D.N.Y. Aug. 10, 2009) (“The only thing that is certain is that without preservation subpoenas, the third party corporations in possession of potentially relevant information are free to destroy that information.”). Courts may issue preservation subpoenas when a stay has postponed discovery, or in time consuming multidistrict coordinated cases. These subpoenas must be narrowly tailored to avoid undue burden.

S.D. Ohio: Lawyers Must Understand Cloud Computing

In Brown v. Tellermate Holdings, Ltd., No. 2:11-cv-01122-JLG-TPK, 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014), Magistrate Judge Terence Kemp faulted the Defendant for failing to identify and preserve data saved with salesforce.com. He ruled that counsel did not meet its obligation under Rule 26(g) to make a reasonable inquiry into the existence of relevant documents, and issued sanctions.

Specifically, Judge Kemp found that Tellermate:

1. Failed to uncover any information about a salesforce.com database.

2. Did not preserve the data on salesforce.com

3. Made false statements to the Plaintiff's counsel that damaged their ability to conduct discovery efficiently.

The Court concluded that, ". . . it is not fair to place the entire blame on Tellermate, even if it must shoulder the ultimate responsibility for not telling counsel what, collectively, it knew or should have known to be the truth about its ability to produce the salesforce.com information. it is hard to overemphasize the fact that none of these representations made any sense at all in light of the way in which Tellermate employees used salesforce.com to improve their sales performance; if they could not go back and see the information after they entered it, it was of little use to them, and Tellermate would not have paid for the licenses for them to use it. Finally, to make matters worse, counsel interjected the totally frivolous argument that the licensing agreement prevented Tellermate from obtaining and disclosing its own information, when the terms of that agreement said just the opposite. This was more than just an abdication of responsibility; it was deliberate obfuscation of the issue. As the facts also demonstrate, this course of conduct was in direct violation of the duty, imposed by federal common law, to preserve relevant evidence. " Id. at *32-34.