Judge Grimm Goes Social

Paul W. Grimm, United States District Judge
Bryant Bell

Judge Grimm is a judicial superstar when it comes to e-discovery. His opinions have helped shape our interpretation of digital data as evidence, and he continues to be on the forefront of issues regarding ESI. He has yet again stepped to the plate to address a simmering e-discovery issue. In a recent article he provides thorough analysis and guidance on social media and the evidentiary authentication as an important development for social-media evidence discovery. Judge Grimm succinctly summarizes his article as follows:

Given the ubiquitous use of digital devices to communicate on social media sites, there is little chance that such evidence will cease to be highly relevant in either criminal or civil cases... Hopefully, this Article can shed some light on the nature of the confusion and offer useful suggestions on how to approach the authentication of social media evidence. It is a near certainty that the public appetite for use of social media sites is unlikely to abate, and it is essential for courts and lawyers to do a better job in offering and admitting this evidence. We hope that reading this Article will be their first step toward this goal.

We all know that social media is growing and that the upcoming generations are embracing this as a normal method of communication. Just as we had to establish the methodology for admission of e-mail as evidence, social media will go through the same rigor. There is no doubt that this article will help set standards and raise the awareness of offering and admitting social media evidence. The 29-page article is available to subscribers to LexisNexis and Westlaw, and non-subscribers can purchase the article.

Highlights of Judge Grimm’s piece include:
  • A "checklist for authentication" and a thorough discussion of the perils of relying on mere screen printouts of social media and other internet evidence
  • Highlights of Federal Rule of Evidence 901(b)(4) (authenticating evidence through internal patterns and other "distinctive characteristics"), noting that it is "one of the most successful methods used to authenticate all evidence, including social media evidence"
  • Advice on the collection of "all of the circumstances and characteristics that apply to the social media exhibit that add up to a showing that, more likely than not, it was authored by the person that you content authored it."

Social media in the years to come will likely become as or more important than e-mail. I would recommend to anyone that wants to stay ahead of the e-discovery curve to read this article.

Title: SYMPOSIUM: Keynote Address: Authentication of Social Media Evidence, Honorable Paul W. Grimm

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