Florida Court of Appeal on the Authentication of Facebook Videos

Yesterday, on May 2, 2018, Judge Jonathan Gerber of the Court of Appeal of Florida, in Lamb v. State, 2018 Fla. App. LEXIS 6086 (Fla. Dist. Ct. App. May 2, 2018) affirmed the decision of a trial court to admit into evidence a Facebook video that showed a defendant charged with grand theft sitting in a stolen car with a stolen watch. The Facebook video was found on the defendants’s phone. The victim identified the defendant in the video as did a detective. The trial court initially sustained an objection to the video’s admission, rejecting the State’s position that it was self authenticating.

A digital forensic examiner downloaded the video from Facebook and testified as to its authenticity. He was unable to confirm the time at which the video was recorded but was able to determine that it was posted after the carjacking. The trial court ruled that there was a prima facie showing of the video’s authenticity. A screenshot showing the video posted on the defendant's Facebook page was also entered into evidence.

The Court of Appeal reject the argument that the trial court committed a discovery violation by not identifying the police digital forensic examiner as an expert. His testimony about how videos are broadcast and downloaded on Facebook was not sufficiently specialized.

While the Court of Appeal held that the fact that a video appears online does not make it self-authenticating, it found that there was a low threshold for its authentication. "the Facebook video provides an unbroken visual recording of the defendant for an extended period of time. . . if the video's distinctive characteristics and content, in conjunction with circumstantial evidence, are sufficient to authenticate the video, then the government has met its authentication burden." Id. at 18. Judge Gerber chose to follow the precedent set by U.S. v.Washington, 2017 WL 3642112 *2 (N.D. Ill. Aug. 24,2017), allowing the admission of social media videos in criminal cases even if the creator of the video doesn't testify; there's no search of the recording device; and the data is not obtained directly from the social media site.

An objection on the basis of the best evidence rule (which the court described as really being a 'lay opinion' objection) was also rejected because the detective and victim that identified the defendant in the video were in a better position to identify him and the stolen property than the jury.

Chart on the Admissibility of Electronic Evidence

A chart on the admissibility of electronic evidence developed by Judge Paul Grimm of the United States District Court for the District of Maryland and Kevin Brady of Redgrave LLP has been passed around in recent days. It was posted on Craig Ball's site on April 18, 2018.

It identifies authentication methods under Federal Rules of Evidence 901 and 902 for six different types of electronic evidence - emails & texts; chat room and blog posts; digitally stored data & the IoT; animations and computer processes; digital photos; social media postings.

Certified records; testimony by a witness with personal knowledge; and a "system or process capable of proving a reliable and dependable result", can be used for all six forms of evidence.

Official publications are permitted for chat room and blog posts; digital data; animations and computer processes; photos; and social media posts. Certified data copied from an electronic device is acceptable for for all forms of evidence except computer process and animations.

Under FRE 902, a certified record generated by an electronic process or system, or certified data copied from an electronic device, storage medium, or file is self-authenticating.

The importance of good information governance and data collection is emphasized, as is the explanation of technical issues to the court.

The Kansas Court of Appeals on Tracking Document Review Hours in Relativity

Today, Judge James Vano issued a decision in Ross-Williams v. Bennett, 2018 Kan. App. LEXIS 22 (Kan. Ct. App. Apr. 27, 2018) affirming a lower court decision approving a settlement and reducing the amount of attorney fees and expenses requested as part of the proposed settlement. A law firm used records from Relativity tracking user activity to support the fact that an attorney had worked more than 6800 hours performing document review. The Kansas district court found that the attorney's billing records were dubious, and noted that that, "it takes merely a keystroke of activity once every hour to keep [the computer program] from timing out or logging off a session." Id. at 33.

Plaintiff's counsel submitted a declaration in order to support the time worked by the attorney in Relativity, noting that a session will log out automatically after 62 minutes and used as an exhibit, a log using fields from a Relativity workspace named, 'Total Usage Time', 'Views', 'Distinct Views', 'Edits', 'Distinct Edits', and '# Documents'. This declaration was submitted after the district court's order and so was not considered by the Court of Appeals. The Kansas Court of Appeals ruled that, "simply hitting a key on one's computer every hour does not equate to actually reviewing documents. Accordingly, we do not find that the district court abused its discretion in denying the motion." Id. at 75.

The Relativity Instance Setting Guide, for version 9.5, seems to contradict the assertion that a user will be logged out of a workspace after 62 minutes. See the reference to CookieDuration, which indicates that an admin can set "the length of time that the users are logged in to Relativity before the system automatically logs them off and requires them to re-authenticate" from between 4 and 24 hours. If the court reviews the exhibit submitted with the declaration, they should see metrics relative to how much document review was actually performed. As the Relativity site makes clear, 'Distinct Edits' are, "[t]he total number of documents edited, excluding repeated edits of the same document. The 'distinct' classification is meant to account for duplicate actions performed against unique documents." 'Distinct Views' would show how many documents a user actually looked at.

It appears as though the district court issued its decision, and the Court of Appeals affirmed, on the basis of a report such as this:

. . . when it could have reviewed a report like this: