Social media being offered into evidence in any case will almost always have hearsay objections if the proffered evidence is a status update, comment, Tweet, or even video.
The reason? Virtually everything on social media is a statement. Unless the social media is only a photo with no text, there is a almost certainty that any social media evidence will have a hearsay objection.
Case in point: a Plaintiff in employment age discrimination litigation during summary judgment attempted to introduce deposition testimony from the Plaintiff about a Facebook status message from a current employee about customer complaints and that the declarant was “sick and tired” of it. Fairweather v. Friendly’s Ice Cream, 2014 U.S. Dist. LEXIS 100755, 12 fn 11 (D. Me. July 24, 2014).
The Court found the Facebook status message “problematic,” because it was made more than a year after the Plaintiff had been terminated, thus would not be admissible under Federal Rule of Evidence 403 (likely because it would confuse the issues or cause prejudice). Id.
The Defendant also objected to the statement as hearsay (an out-of-court statement offered for the truth of the matter asserted). The Court opined that the statement was not being offered to prove the declarant was actually “sick and tired” of customer complaints, but evidence of the frequency of customer complaints. Fairweather, at *17. This would mean the statement was being offered for the truth of the matter asserted and thus would be hearsay. The Court further found the deposition testimony about the status message to be cumulative and would not be admitted. Id.
Ironically, the Court did not invoke the Best Evidence Rule. The dispute focused on the Plaintiff’s deposition testimony about a status message she saw from another person. There is no reference to a print out, screen shot, or any capture of the Facebook status message. This arguably would also violate the “Best Evidence Rule,” because the “writing” was not actually included as evidence.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.