News & Publications

Aug 20th, 2018

Florida 4th DCA Ruling on Facebook Live Video and Authentication - 2017 Federal Rules Make it Easier to Authenticate ESI

by Chioma Deere, Esq.
Williams, Leininger & Cosby, PA

On May 2, 2018, the Fourth District Court of Appeals (Fourth DCA) published its opinion in Lamb v. State of Florida, No. 4D17-545, Case No. 502016CF004626A (2018 WL 2049640 (Fla. 4th DCA 2018)). The Fourth DCA upheld the trial court's ruling that the Facebook Live video presented in this Palm Beach County criminal case was properly authenticated and admissible to the jury.

The opinion discussed many issues which relate to electronic discovery and the use of social media in litigation. However, this article will address the fairly new 2017 Federal Rules of Evidence on self-authenticating evidence which provide guidance on authentication of electronically stored information (ESI).  The rules on self-authentication could have persuasive authority (even though not binding) for Florida courts to consider.

The Fourth DCA’s opinion arose out of criminal charges of grand theft of a vehicle and grand theft of other personal items. Defendant Lamb was accused of participating in the theft of two vehicles. During the trial, the prosecution presented a Facebook Live video of the alleged grand theft. The first victim identified his vehicle in the video, which was driven by Lamb. The victim also identified his watch in the video, which was worn by the defendant.

The defense objected to the authentication of the Facebook Live video as presented, which the court initially sustained. Upon the Defense’s first objection, the court initially agreed that there was an authentication problem in the manner in which the prosecutor attempted to authenticate the Facebook Live video. The prosecutor then presented the police department’s digital forensic examiner, who testified to his credentials, experience, and how he identified the Facebook Live video related to the case.

Citing case law in similar criminal cases, the court found that the legal basis for authentication of online evidence is required but the authentication for the purpose of admissibility has a low threshold. Based on the testimony from the digital forensic examiner, the Fourth DCA ruled that the state met the relatively low threshold required to authenticate the Facebook Live video.

In civil litigation, Florida courts now have access to a similar, but easier, standard. The Federal Rules of Evidence, which are persuasive in Florida with regards to electronic discovery and digital evidence, enacted new Rules in December 2017 regarding self-authenticating digital evidence. FRE 902 (13) and (14) provide parameters in which practitioners can easily present ESI as self-authenticating.  A good infographic and breakdown of the new rules was created by Kevin Brady, a leading judicial expert in the field, who teamed up with U.S. District Court Judge Paul Grimm, to create the Grimm/Brady Evidence Admissibility Chart. The Rules state:

Rule 902. Evidence That Is Self-Authenticating

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule (902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).

Under the FRE Rules 902(13) and (14), the Facebook videos would easily be self-authenticating based on a written certification and without the need for live testimony. Self-authentication of the Facebook Live video requires a written certification presented by a qualified witness of what the Facebook Live video was, based on the information available, and how Facebook Live works. Upon such a showing, the court would be allowed to rule that the evidence is self-authenticating.  It is very important to review the "Committee Notes on Rules—2017 Amendment" on the new 2017 Rules, which also clarify why and how the new Rules work to streamline the presentation of ESI as self-authenticating, leaving only the need for the courts to determine the ESI's admissibility (on issues such as relevancy/prejudice).

The question for Florida state case arises, “How can practitioner use the new FRE Rules in Florida state cases?”  A best practice to manage ESI in litigation is to use the resource of a case management conference under Florida Rules of Civil Procedures 1.200.  Florida practitioners can request that the court allow the parties to follow the Federal Rules regarding self-authentication under 1.200(a)(5), which allows the court to “consider the possibility of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, and stipulations regarding authenticity of documents and electronically stored information.”  This provision is similar to the Federal Rules 26(f) related to the meet and confer requirement.  Attorneys can negotiate how to manage ESI, or seek a court order allowing for self-authentication of the ESI, including social media.  Attorneys can follow this Rule to negotiate and coordinate, with proportionality, with opposing counsel issues such as the preservation, collection, and self-authentication issues in your case (regardless of the size or value of the dispute) early on.    

As reflected in the FRE Committee Notes, it is the hope of the court that parties and their counsel will utilize this effective tool to efficiently and cost-effectively present ESI in cases. The use of Rules 902(13) and (14) eliminates the need for costly experts and unnecessary time used to present testimony in order to authenticate ESI.