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Mark A. Berman

Social media communications are becoming increasingly important evidence in litigation and the New York State Court of Appeals in People v. Price, 29 N.Y.3d 472 (2017), made it clear that there is no strict rule or formula that must be met in order to have social media communications authenticated in order to be admitted into evidence. However, what is clear is that, whether for purposes of summary judgment or for trial, when a party denies that the actual social media post or picture, frequently offered in the form of a “screen shot,” was his or hers, there must be sufficient indicia, which may not be that difficult to obtain, that the communication came from the author in order to be properly authenticated.

Case Law Provides Guidance

As demonstrated by the cases described below, “courts have been flexible as to the manner of authenticating electronic evidence. Often the authentication comes from a combination of sources. Also, the evidence is frequently authenticated circumstantially, such as through the distinctive nature of the contents of the messages.” Matter of R.D. (C.L.), 58 Misc. 3d 780 (Fam. Ct. N.Y. Co. 2017).

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