Self-Collection and the Best Evidence Rule

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In a case that has particular salience in today’s era of social media, the Eastern District of Texas in Edwards v. Junior Sate of Am. Found., CIVIL NO. 4:19-CV-140-SDJ (E.D. Tex. Apr. 23, 2021), excluded screenshots and other evidence of a purported Facebook message conversation because it failed the Best Evidence Rule.

In so doing, the court found that native files, not screenshots, were necessary to authenticate an electronically-sent message.

Why Native Files Instead of Screenshots?

Federal Rule of Evidence 1002, the Best Evidence Rule, requires a party seeking to prove the contents of a writing to produce the original, or account for its nonproduction.

For electronic data, the Best Evidence Rule provides for a computer printout or other “output” of the information “if it accurately reflects the information.” To accurately reflect the information, the court held, an electronic file should be produced in native format or as a properly processed image, inclusive of all metadata.

Metadata, or “data about data,” found in electronically transferred native messages provides supporting information to validate the source, sender, recipient, and content of the original message.

Meanwhile, the court held, a screenshot is just a picture of the message that does not provide the needed metadata to authenticate the content.

The court expressed concern that screenshots can be fraudulently created or manipulated with digital editing software. Native files cannot without great effort.

Edwards v. Junior State of Am. Found.

In Edwards v. Junior State of Am. Found., the Plaintiff had deleted integral Facebook Messenger communications. They wanted to offer screenshots as evidence of the purported communications instead of the deleted native files.

Plaintiff Daniel Edwards, Jr., alleged that another student sent him “racist and homophobic Facebook messages.” As part of its discovery requests, Defendant Junior State of America Foundation (JSA) sought the native version of the alleged communications from Plaintiff’s Facebook Messenger account to prove or refute the authenticity of the messages at issue.

After Plaintiff generally failed to respond to Defendant’s Requests for Production for nine months, the parties engaged in motion practice that resulted in the Court compelling Edwards, Jr. to produce the native files and granting sanctions in favor of JSA.

Only after this order was granted did Edwards, Jr., confirm he had deleted the native Facebook Messenger files when he permanently deleted his Facebook account. Defendants moved to dismiss, pursuant to FRCP 37(e).

The Ruling

Per the Court, the messages and their metadata were essential to the litigation. Over Plaintiff’s argument that the screenshots were sufficient to authenticate the underlying messages, the court found that Plaintiffs knew or should have known of their need to preserve the messages themselves to satisfy the Best Evidence Rule.

The court held that screenshots were not an output that accurately reflected the information of the native file, since they could not show that the messages were authentic, nor could they “be used to prove that Harper sent the Facebook Messages contained in the screenshots.” Failure to produce the native files prejudiced JSA, in part, because it deprived Defendants “of the ability to substantiate or refute the authenticity of the alleged Messages.”

As a result, the Court issued sanctions to redress Plaintiff’s deletion of the evidence: the exclusion of the screenshots and all other evidence and testimony of the alleged Facebook Messenger exchange.

What Should Practitioners Do?

Edwards shows us that when dealing with electronic messages, demonstrating the content of the message is only part of the challenge. Proving who sent the message and when, and that no information has been changed, is vital to that evidence’s authentication under the Best Evidence Rule. Screenshots of a message, the court found, do not suffice.

As a result, attorneys should be aware that courts are unlikely to find that screenshots alone are sufficient to authenticate the underlying message and will likely insist on the native files.

To ensure this data is collected defensibly, attorneys should work with certified forensic examiners who will preserve and collect the relevant messages and underlying metadata so that they can be properly authenticated and admitted in court.

While Facebook and other messaging applications, like Slack, have built-in native export functionality that will provide metadata, many other modern messaging applications require specialized and proactive acquisition approaches.

Forensic examiners know the best way to preserve and collect metadata for any particular data source and have a number of tools at their disposal to do so.

Moving Forward

As communication technology changes and expands, leading to new and unpredictable messaging applications, the need to authenticate the accuracy and validity of evidence becomes increasingly difficult.

While it may seem easy to simply take a screenshot of the relevant communications, it is not so easy to authenticate that screenshot in court.

Whether you are submitting this evidence or arguing against it, know that metadata collected by certified forensic examiners can be crucial to your argument.

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