A Pennsylvania Appellate Court Considers Social Media Authentication
In Commonwealth v. Mangel, the Pennsylvania Superior Court considers the appropriate authentication standard for social media materials in Pennsylvania
by Matthew Verga, JD, Xact Data Discovery
In Commonwealth v. Mangel, 2018 PA Super 57 (Pa. Super. Ct. Mar. 13, 2018), the Commonwealth of Pennsylvania appealed a trial court decision denying admission of certain insufficiently-authenticated social media materials to the Pennsylvania Superior Court, which “appears to be an issue of first impression in Pennsylvania.” Pennsylvania Rule of Evidence 901, which addresses the establishment of evidentiary authenticity, mirrors Federal Rule of Evidence 901, which we have discussed before in this context.
Authentication of Social Media Evidence
Social media materials, like so many kinds of ESI, are still a relatively new cultural and legal phenomenon, and as a result, many still view such sources as inherently suspect compared to more traditional sources. One classic decision waxes poetic about the dangers of “voodoo information taken from the Internet.” As a result of this fear and discomfort, there has been a great deal of disagreement about how social media materials can be authenticated.
As we reviewed in our Social Media in eDiscovery Series last summer, two groups of cases have emerged, and jurisdictions have split between what’s known as the Maryland Rule and the Texas Rule. The Texas Rule, which originates with Tienda v. State of Texas, No. PD–0312–11 (Feb. 8, 2012), attempts to treat social media materials in the same way as other materials and focuses on putting the question of authenticity to the jury (pursuant to Rule 104(b)), once a sufficient initial showing has been made. The Maryland Rule, which originates with Griffin v. State of Maryland, 19 A.3d 415 (Md. 2011), sets a higher bar for social media materials to clear before reaching the jury for consideration because of fears that they are inherently less reliable.