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#CaseoftheWeek Episode 21: Admission and Authenticity of Social Media and Text

With the continuing rise of text messages and social media posts as the communication tool of choice, we also see many of our #CaseoftheWeek episodes analyzing decisions that include the admission and authenticity of social media. On our April 20, 2021 episode, Kelly Twigger shares key ediscovery takeaways from the decision in one of the cases stemming from the unrest in the United States Capitol on January 6, 2021. The case is U.S. v. Hunt, 2021 WL 1428579 (E.D.N.Y. 2021), April 15, 2021 and was presided over by United States Magistrate Judge Pamela K. Chen.

Good morning and welcome to our #CaseoftheWeek for April 20th, 2021. My name is Kelly Twigger, and I am the CEO and founder of eDiscovery Assistant and the principal at ESI attorneys.

For those of you who are regulars here, we are in partnership with ACEDS at eDiscovery Assistant to bring you a new case each week and talk about the practical implications of that case and what it means for you, your practice and your clients.

Let’s get into our #CaseoftheWeek.

This week, we’re picking up what is a little bit of a controversial kind of case, that is currently in trial in the Eastern District of New York. Brendan Hunt is currently on trial for one count of threatening to assault and murder members of the United States Congress, and his indictment and subsequent criminal charges came out of proceedings following the riots at the Capitol on January 6th.

This case is, of course, part of a very polarizing and somewhat emotional set of circumstances. I’m only going to talk today about some of the language that’s necessary to discuss some of the key issues. I also want to let you know that there are a lot of other issues that are discussed in this case that are not ESI related, that may be of interest and value to you but we’re going to focus today on just the ESI issues that are raised in the case.

In terms of the timeline, Hunt was indicted on February 16th in 2021, you’ll see in the links to this event (no matter what platform you’re on) both the public link in eDiscovery Assistant to the case decision, and also to an article from CBS News discussing the beginning of the trial that started yesterday in the Eastern District of New York.

The indictment, as I mentioned, was on one count of threatening to assault a member and murder members of the United States Congress. The complaint alleges that Hunt made four statements on social media websites between December 6th, 2020 and January 12th, 2021 that, quote, “threatened or incited others to murder members of Congress who were engaged in the performance of their official duties and in retaliation for such officials performance of their official duties.”

As you will recall, the assault on the Capitol on January 6th was the same day that Congress was voting to certify the election results from the 2020 presidential election.

This decision is on motions in limine that were filed prior to trial. The motions were filed on April 7th. The date of this decision is April 15th. I neglected to mention at the outset that this is in front of Judge Pamela Chen, who is a United States District Judge in the Eastern District of New York.

The decision itself discusses both of the parties motion in limine that were brought before the court. They are a little bit overlapping. I’ve kind of laid out what the government’s motions related to ESI included, and then we’ll talk about what the defendant’s responses were to them, but in general, both of the parties motions really overlapped. The government sought to introduce a lot of this evidence at the same time that the defendant sought to exclude it. We’ll talk about both sides of the coin. The way that they’re laid out makes a little bit more sense to introduce it the way the government motions are laid out.

The government sought to introduce evidence of the defendant’s statements about the presidential election and the US Congress, his knowledge of white supremacists and anti-Semitic propaganda symbols and beliefs, as well as evidence of his incarceration. They also sought to introduce evidence regarding the 2020 presidential election in the January 6th attack on the US Capitol. Also to introduce evidence to explain how collective threats against members of Congress constitute true threats, which is “an element of the crime on the indictment that impede, intimidate and interfere with the official duties of members of Congress to introduce evidence regarding defendants social media accounts pursuant to business records, certifications and foreign records certifications” which we’re going to talk about under Federal Rule of Evidence 902. There are a few other pieces that the government also mentioned that were not necessarily related to ESI issues.

The core of the complaint is that the First Amendment does not protect speech that is a true threat, and whether words are a threat is an issue for the finder of fact or the jury here. That’s something that the court sets out early in its stages of the opinion. Because that is a key issue, what we’re looking at is whether or not information from the social media, platforms and forums, text messages and from a video posted to a social media platform, goes to create true threats. So whether or not Hunt actually made true threats. The question on these motions in limine to the court is whether or not the evidence that the government wants to introduce and the defendant does not want to have introduced really goes to whether or not a fact finder would believe that statements made were true threats.

The defendant made four statements—two on his Facebook account, several in an eighty-eight second video on BitChute, a video sharing platform from the UK, and two messages on Parler, which is a right wing social media platform. If you’ll recall, there were a lot of issues about Parler following the Capitol riots in which Parler was taken down from a number of servers, including Google and Apple. Some of that has since been restored. A lot of issues associated with ESI related here.

I’m going to share one statement of the many that are articulated in the decision, just because it’s so polarizing and emotional. I just wanted to just put this one for context so that you can understand the language with which the government is trying to work and bring into evidence here and that which the defendant is trying to preclude. This is one of the statements that comes from the social media platforms.

Trump, we want actual revenge on Democrats, meaning we want you to hold a public execution of Pelosi, AOC, Schumer, etc. And if you don’t do it, the citizenry will. We’re not voting in another rigged election. Start up the firing squads, mow down these commies and let’s take America back.

That’s the content that we’re dealing with from Hunt’s social media platforms.

The government also sought to to introduce the defendant’s private text messages in order to be able to establish the defendant’s intent when he made these alleged threats on social media, and the decision here documents those individual text messages that the defendant sent and contemporaneous to the various social media posts that he made. What’s interesting about the decision and that if you go through it, you’ll see that the court looks at the timing of each of the social media posts and looks at the timing of the individual text messages that were sent back and forth between the defendant and his father, and allows them to be admitted for purposes of establishing intent behind what the social media post said. We’re going to talk about this in a little bit, but it becomes really important from that perspective, if you want to create that contemporaneous timeline that you’re collecting that ESI in a way that allows you to see the individual time of text messages or social media posts that are being made, that’s going to be really important.

The defendant argued in this case that the text messages, his private text messages between him and his father were cumulative, but the court disagreed and allowed them as intent to establish the intent behind the statements that were made.

Now, that’s going to be a really important area to consider because and I’m not saying that very articulately, but the reality here is that the element that the government is trying to prove that these were true threats and therefore not precluded by the First Amendment means that intent as to whether or not these are true threats is another important consideration for the court. That’s not always going to be the case in your civil cases. When you’re looking at the Hunt case in terms of the admissibility of evidence, you need to consider whether or not you’re looking at an element that has intent behind it, that you can enter these text messages that would not otherwise be relevant.

To sum that particular issue up is the court allowed the admission of social media posts that had this inciting language in them and that it also allowed the admission of the defendant’s private text messages to be able to show the intent behind those social media messages.

The next issue that the court considered that’s ESI related was an eighty-eight second video on BitChute entitled “Kill Your Senators”. The court found that the language in the video went to showing the defendant’s intent and that the government was allowed to introduce the video and have the expert discuss the terminology and symbolism used in it, including references to Adolf Hitler. It’s articulated a little bit more in the decision, but specifically the fact that the video is eighty-eight seconds long is a reference to Hitler in and of itself.

The defendant argued that he should be allowed to introduce other social media posts and text messages showing nonviolent behavior that were unrelated to the alleged threats or events at issue, and the court said no, those are unrelated to the alleged threats or events at issue and not relevant to the proceedings. So, the videos are in, the text messages are in, the social media is at least admissible, but we still have to talk about authentication of those items that are posted on third party platforms.

The government actually obtains the defendant’s accounts directly from Facebook, Google, Twitter, Parler and BitChute, and then asked to utilize the provisions of FRE 902(11) to certify the authenticity of those records as business records. The defendant refused to stipulate to the authenticity and required a custodian from each platform at trial. The court looked at FRE 902 and denied the certification that the government sought, but here’s what it said, quote,

to the extent the government seeks to authenticate and admit the content of messages or videos on defendants social media accounts via certifications, such items are not self authenticating business records that require no extrinsic evidence of authenticity other than a certification from a custodian to be admitted.

Essentially what the court said is, these social media posts aren’t business records, and they looked at another case, US v. Brown, which was pretty clear on the subject and concluded that Facebook chats were not self authenticating records. We look at it like, OK, well, if we can’t use a business records exception to create authenticity, how do we establish authenticity? Now, the steps for authenticating social media posts are not laid out in this particular decision because that was not part of this motion in limine and it was simply a question of whether or not they could certify using FRE 902, but we can find a lot of other cases in eDiscovery Assistant that lay out that three step process for the authentication of social media. One of those steps is to be able to show that the social media account, in fact, belongs to the defendant. One of the things that the court said here is that, the fact that the government had obtained those chat logs directly from Facebook was circumstantial evidence that the records were what the government claims. So, the fact that they’ve gotten that information from those individual platforms could be one piece of the authentication checklist that they need to go through, but it was not sufficient to allow them to be certified as business records under 902.

The government could not rely solely on those certifications to authenticate and admit the messages or the videos, so they have to go through other steps to be able to do that, which is something that they learned about four days before trial. But, the court did also find that the government, to the extent that the government simply sought to admit records about the defendants social media content, such as metadata showing times or dates of posting or transmission or the IP addresses, that those sorts of records about the social media would be self authenticating under the US v Brown decision. In that case, the court found, quote,

If the government had sought to authenticate only the timestamps on the Facebook chats, the fact that the chats took place between particular Facebook accounts, and the similarly technical information verified by Facebook in the course of a regularly conducted activity, the records might be more readily analogized to bank records or phone records, conventionally authenticated and admitted under Rules 902(11) and 803(6).

That’s a really important distinction from an authentication perspective, while you can’t authenticate the actual text of the post that’s made, you can authenticate the metadata as potentially record of a regularly conducted business activity under 902(11). The government here is still left with the need to have take further steps to be able to authenticate that social media evidence.

Next issue, the defendant argued that the government really should have been precluded from introducing a copy of the BitChute video entitled “Kill Your Senators”, because the copy that they introduced did not include all of the comments that were made in response to the video, thus, quote, “depriving the defense, the court and the jury of the opportunity to consider the context of the statements and the listener’s reactions.” The defendant argued that the government’s failure to preserve all of the comments was spoliation of evidence and that the proper sanction should have been precluding the video.

At this point, you have to acknowledge that the majority of this evidence, if you read the decision and watch the video, is pretty damning. So, defense counsel’s best arguments are anything that will get evidence precluded at trial.

The court looks at this argument from the defendants related to the video and essentially we’re asking, and it’s a new issue that we haven’t seen on social media before, if the the post is captured or the video is captured without capturing the related comments, does that mean that there is spoliation of information? I think that you’ve got two completely separate circumstances here that that you need to make sure you’re paying attention to in this case, which is a criminal case. The comments associated with the video could create context for the listener’s reactions and the context of the statements that are made. That’s at least what the defendants are arguing. A lot of times in civil cases that may or may not be the case. You need to consider again, what are the elements that you’re trying to prove and what would the comments go towards demonstrating with regard to that element?

Looking at this issue, the court went through the three steps of spoliation, which you’re familiar with if you’re a regular here on our #CaseoftheWeek. One was to show that there was an obligation to preserve the evidence; two, that the evidence was intentionally destroyed, and three, that the evidence would have played a significant role in the defense.

The court then also says there is an additional threshold inquiry, and that is whether the loss of the evidence is actually chargeable to the state here. The question is whether the government lost the evidence.

The court then looks at some of the facts surrounding the preservation of and production of the video from BitChute, which, again, is a UK video sharing platform. The court says the FBI sent a letter to BitChute requesting the preservation of all the material in the defendant’s account on January 8th of 2021, and the very next day on or around January 9th, the defendant changed the settings on the “Kill Your Senators” video on his account to hidden unpublished mode. The government did obtain a copy of the video and the comments by the defendant, but did not obtain comments from other users immediately. The court notes that the court order from the UK court specifically directed BitChute to produce all records related to the post titled “Kill Your Senators,” posted on or about January 8th 2021, including the video file itself, the number of views and any comments made.

The order from the UK court says, give them everything. On the first pass they only got comments from the defendant, but ultimately the FBI and the government were able to get all of the comments from all of the users, so this was a non-issue. What we have is the issue of whether the entirety of the record for a social media post needs to be produced has not really been addressed here. That’s something that will want to keep an eye on case law for; it may be an issue for another day.

OK, what are our takeaways here? Well, we talk about this all the time, but timing, working early on in dealing with ESI is going to be crucial when you have another party and evidence exists on social media or in text messages in places that you can only get to either by a third party or through accessing the device of the person you need, you need to act on that as soon as possible.

You need to get letters of preservation out if you will believe that there’s going to be some spoliation of information, you need to get a court order ordering the preservation of that information, so that then if that information is destroyed at some point or is unavailable to you, then you have an order to be able to move for sanctions under Rule 37.

This opinion, as we talked about, does not address the steps required for the authentication of the social media evidence, but there are dozens of cases in eDiscovery Assistant that lay out that three step process for authentication. If you are a user on eDA, you can use our tags to be able to get to those cases quickly just by pulling up social media and authentication. You can use an individual platform tag as well, but generally, the social media authentication is consistent across platforms.

This opinion does set out a great discussion of when the use of 902(11) is applicable to establish authentication, that’s the business record exception that’s not specific to civil cases, and what it can establish. Be prepared as you identify trial exhibits that you need to have authenticated how you can use the various sections of 902 effectively. Here, the court said you could have used 902 11 to establish the metadata of those social media posts, but you cannot authenticate that those are, in fact, posts that were made by the defendant or offered for the truth of the matter asserted.

Remember, we always talk about this plan, plan, plan. The authentication of your evidence needs to be something that you think about at the time that you collect it. We’ve talked sometimes in the #CaseoftheWeek, about the ability to collect text messages via screenshots. One thing you need to think about is if in this particular case, text messages had been captured via a screen shot, it would be unlikely that you would see the individual timestamp of each of the individual messages. Take a look at some of your message strings and note that while iMessage, which is the the platform that I use captures a time stamp, it doesn’t capture it for each individual message that’s made. If we were to collect a forensic image of those text messages from that phone, then each individual message would be attached to a time stamp.

That’s the kind of evidence that was necessary here in this case. So, when you’re thinking about how to collect information, don’t forget to make the decision of how am I going to want to present this information to a jury later, and what are the tools that I need to use to collect to make sure I get the metadata that’s necessary? That level of metadata is not necessary in every type of case, so you need to be thinking about and making the decision as to what you need to present at trial when you’re collecting data. It’s early planning, it’s early thought process decisions that you need to make sure you’re making.

OK, that’s our #CaseoftheWeek for this week. Thanks so much for joining me. I’ll be back next week with another edition of our #CaseoftheWeek from eDiscovery Assistant. As always, if you’re an ACEDS member and interested in using eDiscovery Assistant, there’s a discount available to current ACEDS members and a trial for folks taking the ACEDS exam. If you’re interested in either of those, please drop us a line of ACEDS@eDiscoveryAssistant.com and one of our team will be in touch. If you’re interested in doing a free trial of our Case Law and Resource database and if you’re not an ACEDS member, just jump to eDiscoveryAssistant.com and sign up to get started on a free trial.

Have a great week. Stay safe and healthy. Hug your loved ones close if you can, and I’ll see you next week. Thank you.

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