The Evolving Use of Social Media as Evidence

Recently, I had the pleasure of participating on a panel as part of a Continuing Legal Education (CLE) course offered by the Fairfax Bar Association.  As a member of the Fairfax Bar Association, Curcio Law is honored to participate in these seminars and share our knowledge with our peers. The topic discussed was the discoverability and admissibility of social media evidence. Social media is an evolving source of information. Most people are unaware of all the different sources of social media, and potentially discoverable information, that is out there.

The discussion was split into two parts. The first part of the CLE seminar revolved around what information is available on social media and whether it is discoverable. Tom wrote an excellent article that details the law on the scope of discovery. We always advise our clients involved in a personal injury claim that anything that has already been posted to social media cannot be deleted, but to refrain from future postings for the duration of the personal injury claim. We explain to our clients that the reason for this is most people want to make themselves look better on social media than what they are actually going through in real life. This reality leads to the potential of plaintiffs hurting their cases. We tell our clients that they will have a chance to explain to the jury how their injuries have impacted their life, and a social media post can be used to discredit their own testimony.

The second part of the discussion included authentication of social media posts or information. Authentication, or providing evidence that the evidence is what the proponent claims it to be, is extremely important in this everchanging digital world. We started out by reminding participants why authentication is needed. Check out these “deep fake” videos of Tom Cruise. These “deep fake” videos are becoming more and more prevalent. The quality of these videos shocked me, and the ability of people to create these “deep fake” videos is only going to improve. We also showed this behind-the-scenes video of how these deep fakes are created. At trial, the authentication requirement is the barrier that stops fake, doctored, or tampered content from becoming evidence.

CLE programs are very important as it helps us continue to sharpen our skill and knowledge in the legal field. I was grateful to be able to present on this topic, and the roundtable discussion allowed me to learn from all of the other panelists.