Tuesday, April 18, 2017

Third Circuit Rules on Authentication and Admissibility of Facebook Chats

In a recent decision in the case United States v. Browne, 834 F.3d 403 (3d Cir. 2016 Fisher, Krause, Roth, J.J.)(Op. by Krause, J.), addressed the proper authentication and admissibility of social media posts.  The case involved an appeal of a  criminal case from the U.S. Virgin Islands.  Although this decision arises out of a criminal case, the rationale regarding the authentication and admissibility of Facebook chats may prove useful in the context of a civil litigation matter.

The Third Circuit rejected the government's argument that pursuant to F.R.E. 902(11) the contents of "chats" exchanged over Facebook were "self-authenticating" as business records when accompanied by a certificate from Facebook's records custodian.   The court more specifically ruled that the “chats” on Facebook were not business records under FRE 803(6) and thus could not be self-authenticated under FRE 902(11). 

The court nonetheless affirmed the appellant's conviction finding the trial record reflected more than sufficient extrinsic evidence to link the Appellant to the chats and thereby satisfy the government's authentication burden under a FRE 901 analysis.

Anyone wishing to review this decision, may click this LINK.

I send a thanks to Brian J. Murren, a law clerk with the Camp Hill, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

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