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Federal Rule of Evidence 1002, better known as the "best evidence rule," states that a party seeking to prove the content of a writing, recording, or photograph must produce the original unless an exception applies. Further, Rule 1001(d) provides that, for electronically stored information, an "original" means a printout or other visually-readable output that "accurately reflects the information."
Screenshots are a common way to save and share a visual copy of messages we receive. But are these images enough to satisfy the best evidence rule?
A case out of the federal courts in Texas decided in April 2021 helps to illustrate this problem. In Edwards v. Junior State of America Foundation, a Black high school student alleged that another student sent him racist and homophobic Facebook messages. The complaint included .jpeg images of the alleged messages, screenshots from Edwards' phone.
U.S. District Judge Sean D. Jordan of Texas' Eastern District held that the parties must produce files in their "native" format or as a "properly processed image," which includes relevant metadata. Metadata describes other data. Images with metadata include information about the size of the image, when it was created, the image resolution, and more. All of which screenshots generally lack.
"[A]lthough the Best Evidence Rule allows for an original 'photograph' to prove the contents of the photograph, this does not mean that the screenshot here can be used to prove that Harper sent the Facebook messages contained in the screenshots," the court reasoned. "Instead, the screenshots prove only that Edwards, Jr. took a screenshot containing what appears to be Facebook messages."
Therefore, Edwards could only use the screenshot for the very limited—and rather useless—purpose of showing that Edwards took a screenshot. A computer forensics expert testified that "it is incredibly easy to create fake Facebook conversations using online tools, however it would be very difficult to fabricate a conversation on the Facebook platform itself." In this case, the Facebook data is the most authentic and reliable source, and "[a]ny conversations depicted in the supposed screenshots must be validated against the Facebook data itself."
The problem for Edwards was, he deleted his Facebook account.
Rule 1003 allows for duplicates or carbon copies to stand in for the original piece of evidence. But this exception only applies when there is no "genuine question...raised about the original's authenticity." Here, the parties were in dispute about the source and authenticity of the racist messages.
Judge Jordan does not discuss Rule 1003 or other exceptions to the best evidence rule, instead focusing on the fact that Edwards did not take "reasonable steps to preserve" the original messages, despite his obligation to do so with a trial underway. He reasoned that all Edwards had to do was not permanently delete his Facebook. Edwards also apparently had access to the native files through a third-party company for a year during litigation but took no steps to obtain the data before the third party deleted the files. None of this helped his case.
Overall, the decision in Edwards demonstrates that the contents of an electronic message are not the only important piece of evidence. Litigants must also prove who sent the message, when they sent it, and verify its authenticity. In most cases, screenshots will not be enough to achieve this result, primarily because they can be altered or wholly created using digital editing tools. Luckily, many messaging platforms have built-in tools that export the data necessary to admit this type of evidence.
Bottom line: It is in a plaintiff's best interest to hold off on deleting their social media platforms, at least until trial is over.
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