V. Conclusion
Although it may seem difficult to apply existing rules to
discoverable social media evidence, it seems more that a lack of familiarity and understanding of the existing rules results is what likely contributes to the perception that the existing rules are inadequate for new forms of discovery. While it is expected that courts may
initially struggle to uniformly apply existing rules of civil procedure and
rules of evidence, it is also reasonable to expect that courts will ultimately
grow more and more congruent.
Initially, it was unclear how the SCA would impact the discoverability
of social media content; however, litigants have seemed to adapt their legal
strategies to obtain the content despite what initially seemed to be a road
block. Although courts did
initially struggle to reconcile the impact of a user’s privacy settings with
the discoverability of “private” content, it has ultimately been established
that a litigant can’t “hide behind privacy settings” to avoid the discovery of
relevant information. Initially,
courts were quick to point to a social network provider’s user policy to rebut
arguments relating to a litigant’s expectation of privacy; however, it seems
that courts have made an easier path for themselves by resting upon the
existing rules of civil procedure.
Though
it may seem easier to simply adopt new rules to specifically address social media
evidence, it seems unlikely that such rulemaking will occur until it is clear
that the existing rules are insufficient.
Because the current rules of evidence provide judges with sufficient
discretion, judges have been able to fairly accommodate social media evidence
for the most part. The current
rules relating to authentication do not require a one-size-fits-all approach;
therefore, courts should refrain from a one-size-fits-all analysis. Similar to the increasing jurisprudence
involving cyber-law, courts analyzing social media evidence under existing rules
of evidence are forced to find the right analogy that securely fits the social
media evidence into the existing scheme.
Especially when it comes to authentication of social media evidence,
courts who handle reliability concerns similarly to the way that other forms of
evidence are handled provide litigants with the most fair and most uniform
application overall. For example,
analogizing reliability issues relating to a social media post with that of a
potentially forged document can easily illuminate the most appropriate
resolution, which can easily be uniformly applied time after time again. It is the job of the judge to draw
these commonsensical analogies so as to avoid becoming hung up in what seems to
be a novel question, simply because the question arises from a new form of
technology. Instead, by drawing
logical analogies to accommodate new technology, courts can embrace new
technological advancements while still respecting long-established legal rules
and concepts.
Attorneys have an ethical duty to understand how to discover and use social media evidence without fear that it will be undiscoverable, inadmissible, or unethical, thereby forcing courts to regularly employ the existing rules to social media evidence. Essentially, a concrete understanding of the existing rules can offer sufficient protection against ethical traps and discovery battles. Fortunately, the technology barriers that have historically created friction between older attorneys and younger attorneys do not seem to be as much of a challenge because nowadays, both generations are familiar with and frequently use social media sites.
