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Birmingham Bar Association Bulletin

Evidence the record, the Eleventh Circuit affirmed the finding that the Board acted with racially discriminatory purpose. While the Eleventh Circuit found the respective social media content in Stout by Stout to be relevant, admissible, and authenticated pursuant to Fed. R. Evid. 901, additional courts within the Eleventh Circuit have also addressed these issues. While reserving ruling on admissibility due to potential prejudice and jury confusion, the Middle District of Alabama previously held a party's social media information and activity could be admissible for impeachment purposes because such information and activity could be relevant to impeach a party or a party's witnesses. Conversely, the Northern District of Alabama excluded, in limine, plaintiff's social media content unrelated to his claims or damages. The Northern District of Georgia recently reasoned that social media content must be authenticated pursuant to Fed. R. Evid. 901 or meet the self-authenticating business records' requirements in Fed. R. Evid. 902, and pursuant to Fed. R. Evid. 801(d)(2)(A), the court further recognized a party's own social media posting could constitute non-hearsay under appropriate circumstances. As it relates to discoverability, a court outside of the Eleventh Circuit recently permitted full, unrestricted access to a plaintiff's Instagram account in a personal injury case. As it relates to authenticity, jurisdictions vary on authenticity requirements for social media content. While each potential evidentiary issue relating to social media content was not addressed by Stout by Stout and has not been fully addressed in an opinion in the Eleventh Circuit, practitioners should Continued on page 35 the Facebook page also expressed similar concerns on the page. In 2013, a five-mill ad valorem tax was approved by the City Council, and in 2014, the Council adopted an ordinance to establish a public school system for Gardendale. The ordinance also created a Board of Education ("the Board") for the city of Gardendale’s newly adopted public school system. A superintendent was hired and a secession plan was drafted. While the Board never formally approved the secession plan, the plan was submitted to the district court in 2015 along with its motion to secede. The district court ultimately held the Board’s motion to secede was racially discriminatory and relied on the secession’s Facebook page as circumstantial evidence of racial intent. The Eleventh Circuit affirmed the admissibility of the comments found on the Facebook page. While the Board argued such evidence was irrelevant and improperly authenticated, the Eleventh Circuit regarded such evidence as circumstantial and found the evidence relevant because “the comments shed light on the motivations behind the creation and later actions of the Gardendale Board.” Notably, the Eleventh Circuit indicated most of the comments on the Facebook page were “spearheaded” by the secession leaders, who later became members of the Board. Moreover, the Eleventh Circuit noted the secession leaders also managed all additional comments made by other members on the Facebook page, and therefore, such posts were also relevant. As it relates to comments' authenticity, the Eleventh Circuit relied on Fed. R. Evid. 901, which “only requires a proponent to present sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be.” The Eleventh Circuit further indicated a district court possesses discretion to evaluate authenticity and such discretion should not be disturbed on appeal "absent a showing that there is no competent evidence in the record to support it." In finding the Facebook posts were properly authenticated, the Eleventh Circuit stated: The Facebook posts were the contents of a page that was controlled by the secession leaders and used to advocate for “...evaluate the ramifications of the following evidentiary principles when evaluating the admissibility of social media content: relevancy, prejudice, authentication, hearsay, and the best evidence rule.” the proposed secession. And the posts were properly authenticated for that purpose. For example, the Gardendale Board conceded that the posts by someone with the username Chris Lucas were made by Chris Lucas. Tim Bagwell admitted that he was an active poster and made one of the comments ascribed to him. And David Salters likewise admitted to participating in some of the Facebook discussions. Despite the above, the Eleventh Circuit indicated the Board could have challenged the weight given to the Facebook comments. Therefore, because the district court's finding was “amply supported" by Birmingham Bar Bulletin/ Summer 2018 11


Birmingham Bar Association Bulletin
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