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Birmingham Bar Association Bulletin

Evidence Ashley L. Crank Think Before You Tweet: Discoverability, Admissibility, and Authenticity Matters Surrounding the Use of Social Media as Circumstantial Evidence As the saying goes, “the more things change, the more they remain the same.” The same goes for the changing forms of digital evidence. In an effort to promote connectivity, Mark Zuckerberg created Facebook in 2004 to serve as a digital platform among college students. Today, there are currently more than one billion active Facebook users of all ages and backgrounds who utilize the platform for various purposes, even as a method to perfect service in legal proceedings. In 2011, a judge in Minnesota entered an order authorizing service of process in a divorce proceeding via Facebook. Moreover, digital evidence, like Facebook and other popular social media platforms, continues to rapidly evolve. Despite this rapid evolution, the long-standing Rules of Evidence and Rules of Civil Procedure are largely unchanged. As social media continues to permeate society, it will continue to serve as a source of evidence in litigation. This Article utilizes the Eleventh Circuit’s recent decision in Stout by Stout v. Jefferson Cnty. Bd. of Education to analyze digital evidence and recent developments related to its admissibility and authenticity. The scope of discovery in federal civil litigation is governed by Fed. R. Civ. P. 26, which contemplates a broad right of discovery and permits discovery of non-privileged information that could relate to a claim or defense, proportional to the needs of the case. The ever-changing nature of digital evidence, including social media, prompts practitioners to evaluate the application of long-standing discovery rules in light of digital evidence. At the commencement of a lawsuit, or in most cases, before one even begins, lawyers investigate social media content related to their client and opposing parties. In most lawsuits, requests surrounding a party's social media content are now expected in written discovery and questions regarding the same are commonly asked in depositions. Given the broad scope of discovery permitted by Fed. R. Civ. P. 26, social media content, at least as it relates to a party's claims, damages, and incident made basis of the lawsuit, is typically discoverable. The Eleventh Circuit recently affirmed the use of Facebook comments as circumstantial evidence of racial intent in what is known as the "Gardendale Secession Movement" in Stout by Stout v. Jefferson Cnty. Bd. of Education. Stout by Stout has a long-standing procedural history that began in 1965 when Linda Stout’s father sued the Jefferson County Board of Education on behalf of Linda and a class of black school children for “operating a compulsory biracial school system." In 1971, the court issued the desegregation order that currently governs the Jefferson County school system, which included schools located in Gardendale. Around 2012, residents of the city of Gardendale sought to create a separate, municipal school system. Gardendale was and is a predominately white community in Jefferson County, Alabama. In campaigning for the creation of a city school board and taxes to support the proposed school system, leaders of the Gardendale secession movement (referred to in the opinion as "secession leaders") utilized social media, mainly Facebook, to discuss the evolving racial demographics of Gardendale’s schools. The secession leaders created a Facebook page to do so, and the page was accessible to the public. The secession leaders served as the Facebook page administrators and possessed the ability to approve new members, delete posts from the page, and change the page’s privacy settings. Among other concerns, the secession leaders cited Gardendale’s changing demographics on the Facebook page and used demographics to advocate the benefits of a municipal system. Other members and supporters of 10 Birmingham Bar Association


Birmingham Bar Association Bulletin
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