Social Media Screenshots No Substitute for Spoliated Native Files

We have discussed before the challenges associated with collecting and authenticating social media evidence, including the unsuitability of relying on screenshots in most circumstances (unless you have a negotiated agreement to accept them or an admission of authenticity from your party opponent). Recently, in the case of Edwards, Jr. v. Junior State of America Foundation, Case No. 4:19-CV-140-SDJ (E.D. Tex. Apr. 23, 2021), a United States District Judge had occasion to consider this issue, and he found screenshots to be inadequate and the loss of the native files to be spoliation, resulting in the exclusion all related evidence.

The Case Background

This case concerns alleged discrimination against a student participant in a youth organization in the form of “racist and homophobic Facebook messages” from another participant. After the alleged incident, the student’s father filed a complaint with the youth organization, including as evidence “.jpeg images of part of a screen.”

Based on this complaint, the organization conducted a two-month internal investigation that included, among other things, searching the alleged author’s phone.  The organization also asked the father to provide “alternative or additional evidence, including, for instance, actual screenshots of the messages or the precise date and time of the messages,” but no additional information was provided. The investigation was eventually closed after “finding insufficient evidence to conclude that [the alleged author] sent the [] messages.”

Subsequently, the student brought this lawsuit against the youth organization.

The Discovery Issues

Once discovery had begun for the case, the youth organization made written discovery requests to the plaintiff “seeking production of, inter alia, ESI from [the plaintiff’s] Facebook Messenger account that could prove or refute the authenticity of the alleged Messages,” and explaining “how to produce messages in HTML format.”  The plaintiff, however, “never objected or responded to any of the Requests for Production that were served upon him.” This pattern of pursuit and avoidance continued for approximately the next nine months.

The youth organization eventually filed a motion to compel production of the ESI, along with a motion for sanctions “for failure to comply with discovery requests.” The plaintiff did not respond to either motion and after a hearing, the court granted both. Subsequently, the plaintiff produced two expert affidavits and a forensic report, but this production still did not include “the native Facebook-message files, i.e., proof of the alleged Messages in JSON or HTML format, as requested . . . and as required by Court order.”

The defendant youth organization then filed a “Motion to Dismiss Pursuant to Rule 37 for Failing to Comply with a Court Order to Produce Electronically Stored Information.” In the plaintiff’s response to this motion, he explained that he “cannot produce the native-file Messages because they have been permanently deleted.”

The Court’s Analysis

The court analyzed the plaintiff’s assorted discovery misconduct under FRCP 37(b), (c), and (e)(1), focusing on the screenshots-versus-native-files issue as part of its spoliation analysis under (e)(1). The court found it indisputable that the plaintiff had been obligated to preserve the native files rather than just the partial screenshots:

Further, Plaintiffs cannot persuasively contend that they did not know or should not have known of their need to preserve the actual Messages as opposed to screenshots thereof. First, Plaintiffs, rather than appearing pro se, were represented by counsel, who could and should have apprised Plaintiffs of the Best Evidence Rule.  Pursuant to Federal Rule of Evidence (“FRE”) 1002, the so-called “Best Evidence Rule” provides that “[a]n original writing, recording, or photograph is required to prove its contents unless these rules or a federal statute provide otherwise.” As it is applied to ESI, FRE 1001(d) provides that “original” “means any printout – or other output readable by sight – if it accurately reflects the information.” Here, the screenshots will not suffice as an “original” because the screenshots are not an “output” that “accurately” reflect the information. Only native files can ensure authenticity. Additionally, although 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 [the alleged author] sent the Facebook Messages contained in the screenshots. Instead, the screenshots prove only that [the plaintiff took a screenshot containing what appears to be Facebook Messages – not that the Messages are authentic or that [the alleged author] indeed sent the Messages. Second, however, one need not be familiar with the Best Evidence Rule to understand that the actual Messages may be important in proving that someone sent the Messages in question and that screenshots may be insufficient to that end. That the actual Messages may be relevant to the instant litigation is self-evident.  Accordingly, the [plaintiff] had a duty to preserve the native files, i.e., the actual alleged Facebook Messages, because plaintiffs had either actual or constructive notice as to the files’ relevance.  [emphasis added]

The court also suggested the plaintiff “quite possibly engaged in deliberate spoliation,” although the record did not sufficiently establish “such willfulness.”

Ultimately, after finding all the elements of FRCP 37(e)(1) satisfied, the court entered an order excluding “all evidence and testimony of the purported text exchange” and prohibiting the plaintiff “from offering any evidence of the alleged Messages.”