Zitz: Exploring the Newly Enacted Massachusetts E-Discovery Rules

Exploring the Newly Enacted
Massachusetts E-Discovery Rules

JULIANNA ZITZ*

INTRODUCTION

V

ast amounts of personal information is placed on social media
profiles and websites daily; as a result many attorneys are avidly
seeking to use the material as evidence—“It’s one thing to make a
fool of yourself in public, but some folks seem to excel at stupidity in front
of the entire world.”1 Millions of Americans spend an enormous amount of
time on social media interacting with family, friends, and rekindling past
relationships; a danger in posting information to these sites is that the
information may be used in court due to the scope of electronic discovery
(“e-discovery”).2
Although not all states have enacted specific e-discovery rules, the effect
of e-discovery is drastic due to the abundance of easily accessible
information.3 As the intricacies of electronically stored information (“ESI”)4
* Candidate for Juris Doctor, New England Law | Boston (2015). B.A., English Literature &
Administration of Justice, Salve Regina University (2012). I would like to thank my family for
their unconditional love and support; my friends for making me laugh every day; the New
England Law Review Volume 49 staff; and my mentor Professor Lawrence Friedman.
1 Sharon D. Nelson, Balling and Getting High: Evidence on Myspace, RIDE THE LIGHTING:
ELEC.
EVIDENCE
&
INFO.
SECURITY
BLOG
(Feb.
19,
2008,
4:40
PM),
http://ridethelightning.senseient.com/2008/02/balling-and-get.html.
2 See What Americans Do Online Social Media and Games Dominate Activity, NIELSON (Aug. 2,
2010), http://www.nielsen.com/us/en/newswire/2010/what-americans-do-online-social-mediaand-games-dominate-activity.html; Karen L. Stevenson, What’s on Your Witness’s MySpace
Page?, A.B.A. (Mar. 2008), https://apps.americanbar.org/litigation/litigationnews/2008/march

/0308_article_myspace.html.
3 See Loryn P. Riggiola & Grace A. Brown, E-Discovery Takes A Turn—Charting The Course To
Discovery From Social Networks, METROPOLITAN CORP. COUNS. (Jan. 31, 2011, 1:00 AM),
http://www.metrocorpcounsel.com/articles/13461/e-discovery-takes-turn-charting-coursediscovery-social-networks; K & L Gates, Current Listing of States that Have Enacted E-Discovery
Rules, ELECTRONIC DISCOVERY L., http://www.ediscoverylaw.com/promo/state-district-courtrules/ (last visited Apr. 22, 2015).
4

See infra Part I.A.1.

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grow because of developments in technology, the need for efficient
discovery management grows as well.5 “Even without having to worry
about social media, preservation of electronic information is fraught with
danger.”6 In January 2014, Massachusetts amended its Rules of Civil
Procedure to include e-discovery rules.7 From an efficiency standpoint,
amendments should be made to specifically address issues with social media
and the authentication of electronic information. 8
Part I of this Note discusses the differences between traditional
discovery and e-discovery. Part II argues that the recently enacted
Massachusetts e-discovery rules will be more efficient than the Federal ediscovery rules. Parts III and IV argue that amendments must be made to
the Massachusetts rules addressing social media and authentication issues.
These Parts further propose standards for such amendments.
I.

Background
A. Electronic Discovery Differs from Traditional Paper Discovery

Discovery is the process by which parties are able to obtain relevant
information regarding a pending lawsuit in advance of trial from
adversaries and third parties with minimal court involvement. 9 The central
premise of discovery is to narrow the dispute.10 Rule 26 of the Federal Rules
of Civil Procedure (“FRCP”) sets forth the scope of discovery: nonprivileged information that is relevant to a party’s claim or defense.11 This
rule pertains to documents and other tangible things. 12
The FRCP were amended in 2006 to address discovery of ESI.13 Rule
26(b)(2)(B) provides a limitation on ESI production; a party may not be
forced to produce this information if it is not reasonably accessible or too
costly.14 More specifically, Rule 34 states that a party must produce or allow
the requesting party the ability to inspect or test any ESI that is described

5 BARBARA J. ROTHSTEIN ET AL., FED. JUDICIAL CTR., MANAGING DISCOVERY OF ELECTRONIC
INFORMATION: A POCKET GUIDE FOR JUDGES 1 (2d ed. 2012), available at http://www.fjc.gov/
public/pdf.nsf/lookup/eldscpkt2d_eb.pdf/$file/eldscpkt2d_eb.pdf.
6

Adam Cohen, Social Media and eDiscovery: Emerging Issues, 32 PACE L. REV. 289, 292 (2012).
See infra Part I.B.
8 See infra Parts III, IV.
9 SHIRA A. SCHEINDLIN & DANIEL J. CAPRA, THE SEDONA CONFERENCE, ELECTRONIC
DISCOVERY AND DIGITAL EVIDENCE CASES AND MATERIALS 40 (2d ed. 2012).
7

10

Id.; MASSACHUSETTS CONTINUING LEGAL EDUCATION, USE AND ABUSE OF DISCOVERY 39
(1984).
11 FED. R. CIV. P. 26(b)(1); JAMES L. UNDERWOOD, A GUIDE TO FEDERAL DISCOVERY RULES 4 (2d
ed. 1985).
12

FED. R. CIV. P. 26(b)(3)(A).
PAUL W. GRIMM ET AL., DISCOVERY PROBLEMS AND THEIR SOLUTIONS 61 (3d ed. 2013).
14 FED. R. CIV. P. 26(b)(2)(B); GRIMM ET AL., supra note 13.
13

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with reasonable particularity including drawings, writings, charts,
photographs, sound recordings, graphs, images, and other data
compilations.15
1.

Electronic Discovery

ESI is data that is “information created, manipulated, communicated,
stored, and best utilized in digital form . . . .”16 This data includes e-mails,
websites, word processing files, and databases stored in the memory of
computers and flash memory.17 E-discovery is the process of identifying,
collecting, and producing ESI in response to an investigation or lawsuit. 18
The world of e-discovery is “dynamic and fluid” because the sources of ESI
available “are constantly changing.”19 Prior to the advent of social media
sites, ESI consisted of emails, voicemails, instant messaging, spreadsheets,
and videos; with the growing trend of social media sites, new sources are
constantly emerging.20
At the Sedona Conference, experts discussed the differences between
traditional paper discovery and e-discovery, concluding that new rules were
needed to facilitate the process of ensuring fairness in e-discovery.21 Major
differences between paper and electronic discovery include: the volume,
variety of sources, encrypted information, and the impossibility of truly
deleting ESI.22
Problems respecting e-discovery include preservation, spoliation, and
production.23 The duty to preserve is governed by the common law rather
than the FRCP—this duty arises when a party is given notice that the

15

FED. R. CIV. P. 34(b).
Patrick Marshall, Note, What You Say on Facebook May Be Used Against You in a Court of
Family Law: Analysis of this New Form of Electronic Evidence and Why It Should Be on Every
Matrimonial Attorney’s Radar, 63 ALA. L. REV. 1115, 1120 (2012).
16

17

ROTHSTEIN ET AL., supra note 5, at 2.
See FED. R. CIV. P. 26(a)(1)(A)(ii) (stating that a party to litigation must disclose all
electronically stored information pertinent to their claim or defense).
18

19 Pearl Zuchlewski, The Uses and Abuses of Electronic Discovery, 57 WAYNE L. REV. 1391, 1392
(2011).
20 See generally Gaetano Ferro et al., Electronically Stored Information: What Matrimonial Lawyers
and Computer Forensics Need to Know, 23 J. AM. ACAD. MATRIM. LAW. 1, 24–29 (2010).
21

Daniel Renwick Hodgman, A Port in the Storm?: The Problematic and Shallow Safe Harbor for
Electronic Discovery, 101 NW. U. L. REV. 259, 275 (2007). The Sedona Conference is a nonprofit
working group and a “research and educational institute dedicated to the advanced study of
law and policy in the areas of antitrust law, complex litigation, and intellectual property rights.”
About the Sedona Conference, SEDONA CONF., https://thesedonaconference.org/ (last visited Apr.
22, 2015).
22 ROTHSTEIN ET AL., supra note 5, at 3.
23 See generally Thomas Y. Allman, Conducting E-Discovery After the Amendments: The Second
Wave, 10 SEDONA CONF. J. 215, 218, 220–21 (2009).

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information may become relevant in the litigation process.24 Preservation
protects potentially relevant information from deletion or alteration.25
Spoliation occurs when evidence is destroyed or significantly altered; courts
have wide discretion to impose sanctions for spoliation.26 Production of this
evidence can be hindered by the ability to retrieve information, necessary
showing of good cause to have access to the information, and the cost
associated with the production.27
2.

Traditional Discovery Rules Are Not Equipped to Deal
with E-Discovery

Traditional discovery rules are not expansive enough to address the
issues underlying e-discovery.28 In traditional paper discovery the process is
relatively straightforward for counsel and clients; however, the process is
not as reliable with regard to e-discovery “because the life cycle of [ESI]” is
more complex.29 The complexity arises from a variety of issues including that
electronic information: is often invisible; can only be accessed, decoded, and
read with special software; creates authentication problems between
original versions and copies; is massive in quantity; and can be stored easily
in many different locations.30
For these reasons it is no longer feasible for attorneys and clients to
“count on traditional paper methods.”31 It has become clear to practitioners
and courts around the country that simply modeling e-discovery rules on
the traditional discovery rules will not work: “We’re all making this up as
24

Id. at 218.
David Narkiewicz, E-Discovery: The Essentials, 30 PA. LAW., Nov.–Dec. 2008, at 18, 24.
26 See Steven W. Teppler, Spoliation of Digital Evidence: A Changing Approach to Challenges and
Sanctions, 2008 A.L.I.-A.B.A. VIDEO L. REV. 67, 69, available at http://files.ali-cle.org/thumbs/
datastorage/skoobesruoc/pdf/VCP0807_chapter_05_thumb.pdf; Matt Delmero, Spoliation:
Analysis, HARV. UNIV., http://cyber.law.harvard.edu/digitaldiscovery/library/spoliation/
spoliationanalysis.html (last visited Apr. 22, 2015).
27 See Allman, supra note 23, at 222–24.
28 See Sarah A. L. Phillips, Discoverability of Electronic Data Under the Proposed Amendments to
the Federal Rules of Civil Procedure: How Effective Are Proposed Protections For “Not Reasonably
Accessible” Data, 83 N.C. L. REV. 984, 985 (2005). “[E]-discovery raises different issues than
traditional discovery and . . . these issues require special rules of procedure.” Id. at 987; see also
E-Discovery Services & Strategy, PERKINSCOIE, http://www.perkinscoie.com/ess/ (last visited
Apr. 22, 2015).
25

29 INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., NAVIGATING THE HAZARDS OF EDISCOVERY: A MANUAL FOR JUDGES IN STATE COURTS ACROSS THE NATION 8 (2d. ed. 2012),
available
at
http://iaals.du.edu/images/wygwam/documents/publications/Navigating_
eDiscovery_2nd_Edition.pdf.
30

Id. at 10.
Eric B. Strongin, When Paper Doesn’t Cut It: Understanding E-Discovery Law and Putting In
Place An Effective E-Discovery Strategy, PRATT’S PRIVACY & DATA SECURITY L. J., Feb. 2009,
available at Westlaw.
31

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we go along . . . . Different courts are coming up with different solutions. It’s
all over the map.”32
B. E-Discovery Rules in Massachusetts Courts
Prior to the 2006 FRCP amendments, codified rules addressing ediscovery did not exist.33 The amendments were intended to resolve issues
pertaining to ESI and to provide guidance to the states. 34 These changes were
not automatically adopted by all state rulemaking authorities.35 Currently,
thirty-five states have based their e-discovery rules, in full or in part, on the
2006 amendments to the Federal Rules, including Massachusetts.36
Massachusetts’ recently-adopted e-discovery rules took effect in January
2014, which amended Rules 16, 26, 34, 37, and 45 of the Massachusetts Rules
of Civil Procedure.37 These amendments were recommended by the
Supreme Judicial Court’s Standing Advisory Committee due to the vast
increase of electronic data available today.38 “[T]he staggering growth of
information in electronic form” was the chief reason to propose electronic
discovery rules in Massachusetts.39

32 JUDITH SEARS, NAT’L COURT REPORTERS ASS’N, E-DISCOVERY: A TECH TSUNAMI ROLLS IN 4
(Apr. 2006) (internal quotations omitted), available at http://www.krollontrack.com
/publications/ediscoverybackgroundpaper.pdf.
33 See Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116
YALE L.J. POCKET PART 167, 167 (2006), available at http://prawfsblawg.blogs.com/files/82.pdf.
34 See id.
35 See Thomas Y. Allman & Ashish S. Prasad, The Forgotten Cousin: State Rulemaking and
Electronic Discovery, in GARY A. ADLER ET AL., ELECTRONIC DISCOVERY AND RETENTION
GUIDANCE FOR CORPORATE COUNSEL 327 (2007); John B. Oakley, A Fresh Look at the Federal Rules
in State Courts, 3 NEV. L.J. 354, 355 (2003) (“Not only has the trend toward state conformity to
the federal rules stopped accelerating–it has substantially reversed itself.”).
36 State
Law
Rules,
EDISCOVERY
RESOURCE
DATABASE,
http://ediscoveryresourcedatabase.com/e-discovery-rules/state-law-rules/ (last visited Apr. 22,
2014) (including: AK, AZ, AR, CA, CT, DE, FL, IA, ID, IN, KS, LA, MA, ME, MD, MI, MN, MS,
MT, NE, NH, NJ, NM, NC, ND, OH, OK, PA, TN, TX, UT, VT, VA, WI, and WY); Thomas Y.
Allman, E-Discovery in Federal and State Courts After the 2006 Federal Amendments,
KROLLONTRACK 48–61 (Feb.
9,
2012),
http://www.krollontrack.com/publications/
2012%20fed%20state%20ediscovery%20rules.pdf.
37

Stephany Collamore, Amendments to Mass. Rules of Civil Procedure Address E-Discovery, BOS.
BAR J. (Jan. 7, 2014), http://bostonbarjournal.com/2014/01/07/amendments-to-mass-rules-ofcivil-procedure-address-e-discovery/; New Electronic Discovery Rules in Massachusetts, MASS.
LAW UPDATES (Sept. 27, 2013), http://masslawlib.blogspot.com/2013/09/new-electronicdiscovery-rules-in.html [hereinafter New Rules].
38

David E. Frank, Bar Said to Be Unprepared for New E-Discovery Rules, MASS. ASS’N HISPANIC
ATT’YS (Oct. 9, 2013, 9:52 AM), http://mahaweb.org/news/bar-said-to-be-unprepared-for-newe-discovery-rules/.
39

New Rules, supra note 37.

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The new Massachusetts rules address four points: handling e-discovery
issues early in litigation; dealing with “inaccessible” ESI; providing a
possible remedy for an inadvertent disclosure of privileged information; and
providing protection when ESI is lost in good faith. 40 One important change
is the “clawback provision,” which is similar to Federal Rule of Evidence
502.41 This provision states that if privileged information is erroneously
produced the receiving party should return or destroy the information until
the privilege claim is resolved.42
C. Social Media’s Impact on E-Discovery
Social media is defined as “any type of social interaction using
technology . . . with some combination of words, photos, video and/or
audio.”43 Social media sites include Facebook, Twitter, LinkedIn, Myspace,
Instagram, and various dating websites such as Match.com.44 These sites
allow individuals to share information about every facet of their lives. 45 In
the United States about half of Internet users maintain a social networking
profile.46 The statistics regarding time spent on social media sites are
overwhelming: users on Facebook share about 2.5 billion pieces of content
daily and forty million photos are posted on Instagram every day. 47 The
average user spends over three hours each day on social networking sites.48
In December 2010 Americans spent over forty-nine billion minutes on
Facebook, Twitter went from handling 20,000 tweets daily in 2007 to sixtyfive million by 2010, and even a professional oriented site, LinkedIn, has
over ninety million members.49

40

MASS. R. CIV. P. 26(b) Reporter’s Notes 2014.
Compare MASS. R. CIV. P. 26(b)(5)(B), with FED. R. EVID. 502(b).
42 See MASS. R. CIV. P. 26(b)(5)(B).
43 Jan L. Jacobowitz & Danielle Singer, The Social Media Frontier: Exploring a New Mandate for
Competence in the Practice of Law, 68 U. MIAMI L. REV. 445, 454 (2014) (citing JOHN G. BROWNING,
THE LAWYER’S GUIDE TO SOCIAL NETWORKING: UNDERSTANDING SOCIAL MEDIA’S IMPACT ON
THE LAW 17–18 (Eddie Fourner ed., 2012)).
44 John M. Miller, Is Myspace Really Myspace? Examining the Discoverability of the Contents of
Social Media Accounts, 30 NO. 2 TRIAL ADVOC. Q. 28, 29 (2011) (providing an overview of social
networking websites); Top 15 Most Popular Social Networking Sites, EBIZ MBA (Feb. 2015),
http://www.ebizmba.com/articles/social-networking-websites.
45 See Cohen, supra note 6, at 289.
46 John G. Browning, Digging for the Digital Dirt: Discovery and Use of Evidence from Social Media
Sites, 14 SMU SCI. & TECH. L. REV. 465, 465–66 (2011).
41

47 Jane Susskind, 7 Social Media Stats of 2013 that Will Surprise You, IVN (Oct. 2, 2012),
http://ivn.us/2013/10/02/7-social-media-stats-2013-will-surprise/.
48

Social Networking Eats up 3+ Hours Per Day for the Average American User, MARKETING
CHARTS (Jan. 9, 2013), http://www.marketingcharts.com/interactive/social-networking-eats-up3-hours-per-day-for-the-average-american-user-26049/.
49

Browning, supra note 46, at 466.

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It is essential for states to adopt specific e-discovery rules: “[T]he everevolving law and practice of eDiscovery . . . is not uniform even as between
state and federal courts in the same jurisdiction. Precedent-setting opinions
on eDiscovery disputes are rare, as appellate courts rarely pass on discovery
decisions.”50 Various hurdles come with admitting social media evidence—
the evidence must be relevant and authentic.51 Despite these difficulties,
attorneys are using these websites to discover evidence integral to their
cases.52 Without specific rules, courts are split on whether to admit evidence
from social networking sites.53
E-discovery issues have become prominent in many areas including
family and personal injury law.54 A divorce case from Mississippi allowed a
seventy-five page transcript of Facebook chats into evidence between a
mother and former high school classmate that contained various explicit
sexual references.55 The evidence ultimately led the court to grant physical
custody to the father.56 In a personal injury action to collect damages from a
car accident, the challenging party sought to introduce evidence from the
plaintiff’s Facebook page depicting the plaintiff skiing after the accident.57
The court decided to conduct an in camera inspection of the plaintiff’s
Facebook profile to determine what information was relevant to the alleged
injuries.58

50

Cohen, supra note 6, at 293.
Lawrence Morales II, Social Media Evidence: “What You Post or Tweet Can and Will Be Used
Against You in a Court of Law,” 60 ADVOC. (TEX.) 32, 32 (2012).
51

52

SAMUELSON LAW, TECH. & PUB. POLICY CLINIC, BERKELEY LAW, SOCIAL NETWORKS: FRIENDS

OR FOES? CONFRONTING ONLINE LEGAL AND ETHICAL ISSUES IN THE AGE OF SOCIAL NETWORKING

1, available at http://www.law.berkeley.edu/files/ConferenceBackground.pdf. For example, the
American Academy of Matrimonial Lawyers conducted a study in 2010 that revealed that 81%
of attorneys reported discovering and using evidence from social networking cases, with
Facebook being the primary source of comprising information. Big Surge in Social Networking
Evidence Says Survey of Nation’s Top Divorce Lawyers, AM. ACAD. MATRIM. LAW. (Feb. 10, 2010),
http://www.aaml.org/about-the-academy/press/press-releases/e-discovery/big-surge-socialnetworking-evidence-says-survey-.
53 See SEAN P. O’DONNELL, COZEN O’CONNOR, THE USE OF INFORMATION POSTED ON
FACEBOOK AND MYSPACE IN LITIGATION 2–3 (2009), available at http://www.cozen.com/
cozendocs/outgoing/alerts/2009/subro101409.pdf.
54 See Christopher Brett Jaeger & Gregory D. Smith, Computer and Electronic Snooping:
Opportunities to Violate State and Federal Law, 34 AM. J. TRIAL ADVOC. 473, 484–515 (2011);
Amanda Showalter, Comment, “What’s Yours is Mine”: Inadvertent Disclosure of Electronically
Stored Information in Divorce Litigation, 23 J. AM. ACAD. MATRIM. LAW. 177, 177 (2010); infra notes
55–58 and accompanying text.
55 Borden v. Borden, 130 So. 3d 1168, 1177 (Miss. Ct. App. 2014), rev’d, 2014 WL 5036036
(Miss. 2014).
56

Id.
Richards v. Hertz Corp., 953 N.Y.S.2d 654, 655–57 (2012).
58 Id. at 656.
57

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Conversely, in an employment discrimination case, an Ohio court
denied a motion to compel user names and passwords for all of the plaintiff’s
social media accounts because the request was overbroad. 59 The court
concluded “The fact that the information defendants seek is in an electronic
file as opposed to a file cabinet does not give them the right to rummage
through the entire file.”60
The uncertainty and lack of uniformity between courts regarding the
admission of social media evidence in the course of e-discovery
demonstrates the need for states to enact specific rules pertaining to social
media instead of banning all evidence or allowing parties to go on “fishing
expeditions” and permitting all evidence to be admitted.61
D. The Importance of Authenticating ESI
The preliminary rule addressing authentication of evidence is Federal
Rule of Evidence 901.62 Before evidence is deemed admissible it must first be
authenticated.63 The process of authentication is satisfied when the evidence
is “sufficient to support a finding that the matter in question is what its
proponent claims.”64 This is a relatively low burden which rests on the idea
of conditional relevance.65
Even though ESI from networking sites presents authentication
problems, courts tend to utilize the traditional approach pursuant to Federal
Rule 901.66 The electronic evidence authentication process can be “a

59 Howell v. Buckeye Ranch, Inc., No. 2:11–cv–1014, 2012 WL 5265170, at *1 (S.D. Ohio Oct.
1, 2012); John G. Browning, With “Friends” Like These, Who Needs Enemies? Passwords, Privacy,
and the Discovery of Social Media Content, 36 AM. J. TRIAL ADVOC. 505, 527 (2013).
60

Howell, 2012 WL 5265170, at *1.
See Browning, supra note 46, at 526–27.
62 See FED. R. EVID. 901; see also Elizabeth Leman, Preserving & Authenticating Electronically
Stored Information (ESI), LEGAL SERVICES NAT’L TECH. ASSISTANCE PROJECT, http://lsntap.org/
blogs/preserving-authenticating-electronically-stored-information-esi (last visited Apr. 22,
2015).
61

63

Keiko L. Sugisaka & David F. Herr, Admissibility of E-Evidence in Minnesota: New Problems
or Evidence as Usual?, 35 WM. MITCHELL L. REV. 1453, 1464 (2009).
64 FED. R. EVID. 901; Breanne M. Democko, Comment, Social Media and the Rules on
Authentication, 43 U. TOL. L. REV. 367, 381 (2012); see also GEORGE FISHER, EVIDENCE: FEDERAL
RULES OF EVIDENCE 2014–2015 STATUTORY AND CASE SUPPLEMENT 289 (3d ed. 2013).
65 See Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 539 (D. Md. 2007); Richard W.
Fox, The Return of “Voodoo Information”: A Call to Resist a Heightened Authentication Standard for
Evidence Derived from Social Networking Websites, 62 CATH. U. L. REV. 197, 202 (2012).
66 Heather L. Griffith, Understanding & Authenticating Evidence from Social Networking Sites, 7
WASH. J. L. TECH. & ARTS 209, 215 (2012).

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daunting—and sometimes impossible—task.”67 The problems that arise
when authenticating ESI include alteration of information and the creation
of false and potentially damaging information.68 The most common ways to
authenticate evidence (or ESI) include: (1) testimony of a witness who has
personal knowledge regarding the creation of the evidence; and (2)
analyzing the original characteristics of the information. 69 As with many of
the issues surrounding e-discovery, there are conflicting opinions between
courts as to the proper method of authentication of this evidence. 70

ANALYSIS
II. The Massachusetts E-discovery Rules Are Clearer than the Federal
Rules
A. The Massachusetts E-discovery Rules Provide More Clarity and
Guidance than the Federal Rules of Civil Procedure’s E-discovery
Rules
Even though Massachusetts e-discovery rules draw on the FRCP, key
differences will provide Massachusetts courts with more specificity and
guidance.71 States considering enacting e-discovery rules should follow the
Massachusetts model, as opposed to the FRCP. 72 The rules that deviate most

67

John D. Martin, Overcoming Authentication Hurdles to the Admission of Electronic Evidence,
Winter 2009, at 13, 13, available at http://www.nelsonmullins.com/DocumentDepot/
Proof_WI09_pages.pdf.
PROOF,

68 See Sugisaka & Herr, supra note 63, at 1459; see, e.g., Griffin v. State, 19 A.3d 415, 418, 424
(Md. 2011) (concluding that print-outs of the witness’s Myspace page were not properly
authenticated because it could not be established that the witness created the profile).
69 See Democko, supra note 64, at 382. “A court may find a profile page authentic if the content
of the page or the posting is so distinctive that it only could have been created by one particular
individual.” Griffith, supra note 66, at 218.
70 See Brent R. Austin, ESI, e-Discovery, and Ethics: Managing Pre-Trial Litigation in the Age of
Electronically Stored Information, in ETHICS IN E-DISCOVERY: LEADING LAWYERS ON NAVIGATING
RULES AND REGULATIONS AND EFFECTIVELY HANDLING PRIVACY ISSUES IN THE E-DISCOVERY
PROCESS 7, 19 (2012).
71 See Press Release, Supreme Judicial Court, SJC Approves Amendments to Rules of Civil
Procedure Addressing Discovery of Electronically Stored Information (Sept. 27, 2013), available
at
http://www.courtrulesupdates.com/massachusetts-rules-of-civil-procedure-2/;
NIXON
PEABODY, 2013 E-DISCOVERY AMENDMENTS TO THE MASSACHUSETTS RULES OF CIVIL PROCEDURE
24–31
(2013),
available
at
http://bostonediscovery.com/wp-content/uploads/
2012/09/Jonathan-Sablone-MA-Rules-for-Ediscovery.pdf [hereinafter 2013 E-DISCOVERY
AMENDMENTS].
72

Cf. Massachusetts Rules for Ediscovery: A Two-Page Guide, EVIDOX, http://evidox.com/wpcontent/uploads/2014/01/MA-Rules-for-Ediscovery-Guide.pdf (last visited Apr. 22, 2015)
[hereinafter Massachusetts Rules for Ediscovery] (describing Massachusetts’ new amendments).

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from the FRCP are 16, 26, and 45. 73 Rule 16 addresses the scheduling and
management of pre-trial conferences; the FRCP do not provide specific
guidance for the management of such conferences.74 Conversely, the
amended Massachusetts rule adds precise provisions for the content that
should be addressed at such conferences: (1) timing and scope of discovery;
(2) preservation of the ESI; and (3) processes to assert privilege claims postproduction.75
Massachusetts Rule 26 pertains to a meeting and conferring requirement
between all parties.76 The FRCP mandate that there be an ESI conference
between all parties at least twenty-one days before the pre-trial conference,
but the plan set forth in the rule is extremely vague. 77 Although the
amendment to Massachusetts Rule 16 does not make these conferences
mandatory, it specifies that either party can demand a conference, in which
case it must occur within thirty days of receiving a request. 78 The plan set
forth by the Massachusetts rule specifies concrete issues that must be
addressed if this conference is to take place, including: preservation, form,
metadata, time, preserving claims of privilege, confidential statuses of
parties, and expenses.79 Rule 45 addresses subpoenas; under the FRCP
subpoenas may be served on all parties who have access to the ESI. 80 The
Massachusetts rule provides more protection for parties by allowing any
person facing a subpoena to move the court for a protective order under Rule
26(c) or have entitlement to any protection previously laid out in the case
relating to a discovery or procedural order.81
1.

Support for the New Rules

Many practitioners are advocating for the new rules even though they
will cause e-discovery proceedings to differ from what judges and
practitioners are used to.82 The Massachusetts rules will end the
inconsistency that has plagued this area of law: “[W]e now know that as a
procedural matter, e-discovery will be guided by codified rules creating a
mechanism to ensure [all parties] pay proper attention to how they address

73

See generally JONATHAN SABLONE, LEXISNEXIS PRACTICE GUIDE: MASSACHUSETTS EDISCOVERY AND EVIDENCE § 4.06, (Matthew Bender & Co. ed., LexisNexis 2014) (comparing the
Massachusetts model and the FRCP).
74

See FED. R. CIV. P. 16.
Massachusetts Rules for Ediscovery, supra note 72.
76 See FED. R. CIV. P. 26; SABLONE, supra note 73, at § 4.06.
77 See FED. R. CIV. P. 26(f); SABLONE, supra note 73, at § 4.04(1)(e).
78 See 2013 E-DISCOVERY AMENDMENTS, supra note 71, at 8.
79 MASS. R. CIV. P. 26(f)(2)(C); see also 2013 E-DISCOVERY AMENDMENTS, supra note 71, at 11.
80 FED. R. CIV. P. 45.
81 2013 E-DISCOVERY AMENDMENTS, supra note 71, at 28.
82 See Frank, supra note 38.
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ESI.”83 At the Boston E-discovery Summit in 2013, Attorney Fox of Bingham
McCutchen expressed the need for codified rules, stating that around 1970
“discovery shifted from the fair-haired child, noble handmaiden of justice to
its present persona, where it is perceived as a ravenous wolf . . . . Civil
litigation may go the way of the horse and buggy if something isn’t done.”84
The rules will make addressing e-discovery issues more structured85 and are
essential to close the gaps left by the Federal Rules.86
2.

It Is Beneficial that the Massachusetts Rules Differ from the
FRCP

Although some states have adopted e-discovery rules resembling the
2006 FRCP Amendments, other states chose to enact their own rules.87 The
Massachusetts e-discovery rules that do not specifically follow the FRCP will
be effective as evidenced by the success of states that have chosen to enact
their own rules, such as Texas and New York.88 These states believe that
following the FRCP would produce many sweeping changes to state
procedures, and thus have decided it is best to follow their own rules.89
In 1999, Texas enacted rules addressing e-discovery prior to the 2006
FRCP amendments.90 Texas Rule of Civil Procedure 196.4, “Electronic or
Magnetic Data,” sets forth a detailed procedure to request and receive
electronic information.91 Mississippi and Idaho adopted an approach to e-

83

Id.
Boston Ediscovery Summit, Judge Rutberg & Attorney Fox: “The Mass. Rules of Civil
Procedure”, YOUTUBE (Jan. 22, 2014), http://youtu.be/cI8lbCMLB20?t=5m41s.
85 David Glod, Newly Amended Mass. Rules of Civil Procedure Focus on Electronic Discovery,
RICH MAY (Nov. 13, 2013), http://www.richmaylaw.com/?t=40&an=25937&format=xml.
84

86 See Anne Shea Gaza & Jason J. Rawnsley, Local Practices for Electronic Discovery, THE FED.
LAW., Feb. 2011, at 32, 32, available at http://www.rlf.com/files/local-ediscovery_0211.pdf (“[T]he
2006 Amendments [to the Federal Rules] were neither the starting point nor the end point for
the handling of ESI.”).
87

Jason Fliegel & Rochelle Outlaw, Slow to Act? State Rulemaking and Electronic Discovery, FOR
DEF., Jan. 2008, at 47, 47, available at http://www.mayerbrown.com/files/
Publication/1ebaddc7-cc40-445f-b162-69cf44ae9185/Presentation/PublicationAttachment/
70bb4e17-df1c-4229-bc63-38f3eb961bc9/ARTICLE_ELECTRONICDISCOVERY_2008.PDF.
THE

88

See generally Timothy J. Chorvat & Laura E. Pelanek, Electronically Stored Information in
Litigation, 67 BUS. LAW. 285, 287–89 (2011); Fliegel & Outlaw, supra note 87.
89 See David Canfield, An Overview of State E-Discovery Rules, INSIDE COUNS. (Mar. 15, 2012),
http://www.insidecounsel.com/2012/03/15/an-overview-of-state-e-discovery-rules?page=2
(“[T]here is an innate concern that strict, homogenous adoption [of e-discovery rules] could
impede vital e-discovery evolution. To date, several states have transcended the 2006
Amendments with dynamic e-discovery regimes that could potentially serve as examples for
other states and perhaps for future amendments to the Federal Rules.”).
90
91

TEX. R. CIV. P. 196.4; Allman, supra note 36, at 3, 6, 59.
TEX. R. CIV. P. 196.4.

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discovery rules resembling Texas’ rather than the Federal Rules.92 This
implies that states’ rules may be a better alternative than strictly following
the FRCP.93
New York does not have specifically codified e-discovery rules, but
follows the best practices guidelines issued by the New York State Bar
Association.94 Even without specific rules, New York has “[p]layed an
important part leading the trend in the development of this area,” with the
famous line of Zubulake cases.95 The United States District Court for the
Southern District of New York rendered five separate opinions in Zubulake
v. UBS Warburg LLC addressing some of the most challenging issues
surrounding e-discovery: discoverable information, the costs of e-discovery,
and the duty to preserve ESI.96 These opinions helped influence e-discovery
law and were integrated into the 2006 Federal e-discovery Amendments.97
Because states like New York and Texas have had success deviating
from the Federal Rules and applying their own set of e-discovery rules or
case law precedent, Massachusetts courts will have similar success following
an electronic discovery model more workable than the FRCP. 98
III. The Massachusetts E-discovery Rules Should Be Amended to
Include a Social Media Component
An amendment addressing social media should be made to the newlyenacted Massachusetts e-discovery rules because of the difficulties
associated with the admissibility of social media evidence.99 Proponents
have advocated for new rules specifically addressing social media because
the current discovery structure is not suited to address these issues. 100 From
2010 to 2013, more than 900 cases implicating social media discovery were

92

State Law Rules, supra note 36.
See supra notes 71–81, 87–92 and accompanying text.
94 See DAVID H. TENNANT ET AL., N.Y. STATE BAR ASS’N, BEST PRACTICES IN E-DISCOVERY IN
NEW YORK STATE AND FEDERAL COURTS 1 (July 2011), http://www.ediscoverylaw.com/
files/2014/01/e-discoveryFinalGuidelines1.pdf.
95 State Law Rules, supra note 36.
96 Andrew C. Payne, Note, Twitigation: Old Rules in a New World, 49 WASHBURN L.J. 841, 852
(2010).
93

97

SABLONE, supra note 73, at § 4.04[3][a].
See supra notes 90–97 and accompanying text.
99 See supra Part I.C.
100 Ken Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31
PACE L. REV. 228, 229 (2011) (“This new mode of human interaction does not fit neatly into any
discovery statutes, case law precedents, or ethics codes. Indeed, the administration of justice is
struggling to adapt to this emergent reality with little guidance.”).
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published.101 “The inconsistency among [these] opinions is the only
consistency.”102 The reason for such inconsistency may be because seeking
this information from social networking websites is extremely difficult
because it must usually go through third parties before being accessed. 103
Additionally, courts must consider several factors before social networking
information will be admitted: (1) is the information “material and necessary”
to the case; (2) are there other ways the information can be obtained; and (3)
whether the party who wants the information will be at a disadvantage in
the proceedings without it.104 The issues surrounding the admissibility of
this electronic evidence must be governed by their own framework in
addition to the existing e-discovery rules.105
A. An Illustration of Inconsistency: A Cry for a Concrete Framework
While many courts faced with daunting social media e-discovery
requests engage in a systematic process, certain courts have acted with too
much discretion and have reached questionable results. 106 In two specific
cases, courts allowed unrestricted, direct access to a user’s social media
accounts which allowed the other party to use irrelevant information.107
Romano v. Steelcase Inc. involved a dispute about personal injuries and
loss of enjoyment of life; the defendant wanted to admit photos depicting
the plaintiff smiling.108 The court concluded that the requesting party could
access the plaintiff’s Facebook account because one could infer from the
narrow content on the plaintiff’s public page that other relevant information
would be found in the page’s private section.109 The court further ordered
that the requesting party could have access to current as well as deleted
posts.110

101 JOSEPH

J. BAMBARA & NATALIE S. FEHER, N.Y. CNTY. LAWYERS’ ASS’N, EDISCOVERY: A
COMPREHENSIVE VIEW AND SOCIAL MEDIA IMPACT 43 (June 4, 2013), available at
http://www.nycla.org/PDF/eDiscovery_CLE_JUNE4_2013_Final.pdf.
102 Id. (emphasis removed).
103 Meredith L. Williams, eDiscovery & Social Media, NAT’L L. F. (Nov. 29, 2010),
http://nationallawforum.com/2010/11/29/ediscovery-social-media/.
104

BAMBARA & FEHER, supra note 101, at 34.
See Miller, supra note 44, at 28.
106 See Steven S. Gensler, Special Rules for Social Media Discovery, 65 ARK. L. REV. 7, 17 (2012).
107 See Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 655 (2010); Largent v. Reed, No. 2009-1823,
2011 WL 5632688 (Pa. C.P. Nov. 8, 2011); Gensler, supra note 106, at 17.
105

108

907 N.Y.S. 2d at 654.
Id. at 655.
110 See generally David D. Siegel, The Negative Side Of Homey Websites Like Facebook and Mypsace
They Can Furnish Unintended Disclosure Opportunities For Adversaries In Litigation, 225 SIEGEL’S
PRAC. REV. 1 (2010); Williams, supra note 103.
109

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In Largent v. Reed, an auto accident case, the plaintiff alleged serious and
permanent injuries.111 The defendant discovered the plaintiff’s Facebook
account and certain posts that repudiated her injury claims. 112 The court
granted the defendant’s Motion to Compel the plaintiff’s username and
password because the defendant showed a “good faith belief” that the
evidence would be relevant. 113 The unrestricted access to social media
content displayed in these cases thwarts the normal discovery process. 114
“Granting such sweeping access represents a break from traditional
electronic discovery orders.”115 Allowing such unfettered access to this
information creates a slippery slope—without a framework for courts to
follow, it seems that any social media evidence will be admissible. 116
B. Proposed Framework for an Amendment Addressing Social Media
Massachusetts should adopt a framework regarding social media
evidence modeled off case law.117 A recent Massachusetts Appeals Court
decision stated, “More explicit instructions about the use of social media and
the Internet may [] be required.”118 Simply because information exists on a
social networking site does not mean that a party should have unrestricted
access to that information.119 A court is most likely to accept requests for
social media content if they are specific, “narrowly tailored,” and
demonstrate a factual need for the evidence before it is turned over.120
In order to achieve efficiency in the e-discovery process, a “discovery
protocol” must be established.121 The first step must relate to relevancy: a
request for electronic information from a social media site must be
particularized and target specific information,122 overbroad requests should

111

No. 2009-1823, 2011 WL 5632688. (Pa. C.P. Nov. 8, 2011).
Id.
113 Id.
114 See Timothy C. Quinn, The Discoverability Of Private Social Media Content: Are Pennsylvania
Trial Courts Going Too Far by Granting Litigants Unfettered Access to Their Opponents’ Social Media
Accounts?, 51 DUQ. L. REV. 787, 806 (2013).
115 Mallory Allen & Aaron Orheim, Get Outta My Face[book]: The Discoverability Of Social
Networking Data and the Passwords Needed to Access Them, 8 WASH. J.L. TECH. & ARTS 137, 150
(2012).
112

116

See Quinn, supra note 114, at 822–23.
See infra notes 118–32 and accompanying text.
118 Commonwealth v. Werner, 967 N.E.2d 159, 168 (Mass. App. Ct. 2012).
119 BAMBARA & FEHER, supra note 101, at 37.
120 See Order at 3, Davids v. Novartis Pharm. Corp., No. CV06-0431 (E.D.N.Y. Feb. 24, 2012)
(order denying compelling disclosure); BAMBARA & FEHER, supra note 101, at 39.
121 See, e.g., Schreiber v. Schreiber, 904 N.Y.S.2d 886, 893–94 (2010).
122 See Crazytown Furniture, Inc. v. Brooklyn Union Gas Co., 541 N.Y.S.2d 30, 32 (1989)
(denying request for access to social media websites because the request was lacking a “factual
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never be permissible.123 Courts should appoint “discovery referees” as the
first level of review.124 This referee’s job would be to assess all the
information and determine what is relevant to the dispute. 125 This process
should take place concurrently with all other discovery so the referee is able
to determine exactly what is relevant.126
The referee should be an attorney in order to ensure that he or she has
legal experience determining what information is relevant. 127 The standard
should resemble the reasonable person standard, with experience as an
attorney, who can determine that the evidence discovered would aid in
figuring out “the truth or falsity of any fact that is of consequence to the
lawsuit.”128 Therefore, evidence will overcome the relevancy hurdle if a
“logical nexus” exists.129 Next, the scope of discovery must be limited: a
requesting party must give the referee specific details of what he or she
reasonably expects to find in the other person’s social media accounts.130 A
party should not be obligated to answer overbroad discovery demands. 131
At the conclusion of determining what evidence is relevant, the referee will
deliver the information to the court.132
The second level of review will take place in the courts.133 To ensure that
only the most accurate and relevant information will be turned over to the
requesting party’s attorney, after the referee examines the social media
evidence the court will conduct an in camera review to make sure privileged

predicate with respect to the relevancy of the evidence”); see, e.g., Schreiber, 904 N.Y.S.2d at 894
(pertaining to particularized search queries of a hard disk drive).
123 See Kregg v. Maldonado, 951 N.Y.S.2d 301, 302 (2012); see, e.g., Greenfield v. Bd. of
Assessment Review for Town of Babylon, 965 N.Y.S.2d 555, 557 (2013); Winchell v. Lopiccolo,
954 N.Y.S.2d 421, 423–24 (2012).
124

See, e.g., Schreiber, 904 N.Y.S.2d at 894.
See id.
126 See Anthony Diana, Kim Leffert & Richard Nowak, Electronic Discovery & Information
Governance: Tip of the Month, MAYER BROWN (Jan. 2014), http://reaction.mayerbrown.com/rs/
vm.ashx?ct=24F76718D0E20AEDC1D180AFD32F991ADEBE7BB3D38714DD4CF371647BF8D9
0DDD78034.
125

127

See Schreiber, 904 N.Y.S.2d at 894.
Hernandez v. State, 327 S.W.3d 200, 206 (Tex. App. 2010).
129 Reed v. State, 59 S.W.3d 278, 281 (Tex. App. 2001).
130 See Schreiber, 904 N.Y.S.2d at 893 (denying a request because it was overbroad, seeking
general rather than particularized access to data).
131 Kregg v. Maldonado, 951 N.Y.S.2d 301, 302 (2012).
132 See Schreiber, 904 N.Y.S.2d at 895; Gibbons P.C., Magistrate Judge Orders Production of Social
Media Discovery But Fashions Novel Protocol Designed to Protect Privacy Concerns, GIBBONS EDISCOVERY L. ALERT (Feb. 7, 2013), http://www.ediscoverylawalert.com/2013/02 /articles/legaldecisions-court-rules/magistrate-judge-orders-production-of-social-media-discovery-butfashions-novel-protocol-designed-to-protect-privacy-concerns/.
128

133

See Richards v. Hertz Corp., 953 N.Y.S.2d 654, 656 (2012).

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information is not released.134 The court will then deliver the relevant
information to the requesting party’s attorney; the requesting party will
never be permitted to access the usernames and passwords to the social
networking accounts.135 Refraining from turning over usernames and
passwords will avoid privacy issues, phishing scams, identity theft, and
fraud.136 In addition, courts must incorporate authentication into the process
of determining whether social media evidence should be admitted. 137
IV. The Massachusetts E-discovery Rules Should Be Amended to
Include an Authentication Component
An authentication amendment should be made to the newly-enacted
Massachusetts e-discovery rules because of the complications surrounding
authenticating ESI.138 Certain courts are inclined to admit evidence and leave
the jury to decide questions of admissibility and weight of the evidence. 139
This is not a proper solution because authentication of evidence should rest
in the hands of those with more experience.140 As one judge stated, “there
may be multiple ways to authenticate [electronic evidence], and careful
attention to all the possibilities may reveal a method that significantly eases
the burden of authentication.”141

134 E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11–CV–02560–MSK–
MEH, 2012 WL 5430974, at *2 (D. Colo. Nov. 7, 2012); Richards, 953 N.Y.S.2d at 656; Gibbons
P.C., supra note 132.
135 Compare Howell v. Buckeye Ranch, Inc., No. 2:11–CV–1014, 2012 WL 5265170, at *1 (S.D.
Ohio Oct. 1, 2012) (finding that it was not appropriate to allow defendant access to plaintiff’s
user name and passwords for social media accounts), with Largent v. Reed, No. 2009-1823, 2011
WL 5632688, (Pa. C.P. Nov. 8, 2011) (concluding that it was proper to give requesting party
access to user name and passwords of the plaintiff’s social media accounts).
136 See Sara E. Stratton, Note, Passwords Please: Rethinking the Constitutional Right to
Informational Privacy in the Context of Social Media, 41 HASTINGS CONST. L.Q. 649, 664 (2014).
137

See infra Part IV.
See supra Part I.D.
139 Justin P. Murphy & Matthew A.S. Esworthy, The ESI Tsunami: A Comprehensive Discussion
About Electronically Stored Information in Government Investigations and Criminal Cases, CRIMINAL
JUSTICE, Spring 2012, at 31, available at http://www.americanbar.org/content/dam/aba/
publications/criminal_justice_magazine/sp12_esi_tsunami.authcheckdam.pdf (material is on
fifth page of PDF document).
138

140

See Nyankojo v. N. Star Capital Acquisition, 679 S.E.2d 57, 59 (Ga. Ct. App. 2009)
(discussing what courts consider when deciding if sufficient evidence of authentication exists).
141 Sheldon M. Finkelstein & Evelyn R. Storch, Admissibility of Electronically Stored
Information: It’s Still the Same Old Story, 23 J. AM. ACAD. MATRIM. LAW. 45, 56 (2010) (quoting
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 549 (D. Md. 2007)).

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A. Revealing the Importance of Authentication
Courts should not be permitted to admit evidence that is not
authenticated.142 Unauthenticated electronic evidence is prejudicial because
authentication “is necessary to establish that a document is what it purports
to be.”143 Concerns associated with electronic evidence that lead to the
skepticism of reliability include the potential to “create, alter, and
manipulate electronic evidence.”144
B. A Proposed Framework for Authentication of ESI
Federal Rule of Evidence 901, which sets the standard for authenticating
evidence, does not provide courts and lawyers with a process to show that
the evidence is truly what the proponent claims it to be.145 Authentication is
typically assessed through a reasonable juror standard.146 Griffin v. State, one
of the only cases that has discussed authentication of electronic evidence and
social media, adopted a more stringent standard than the reasonable juror
standard.147 The Griffin majority did not adopt the standard for
authentication utilized by most federal circuit courts “that a document is
properly authenticated if a reasonable juror could find in favor of
authenticity.”148 Instead, the court outlined three alternatives: (1) asking the
defendant whether he or she created the page and posted the material in
question; (2) searching the defendant’s computer; or (3) obtaining the
information directly from the social networking site where the information
was posted.149
Courts should adopt a more stringent standard than the reasonable juror
standard.150 Using case law to further develop the reasonable juror standard
for authentication of evidence provides a structured way to address

142

Griffin v. State, 19 A.3d 415, 418 n.6 (Md. 2011).
See Defendant’s Motion in Limine to Exclude All Electronic Evidence for Which
Authenticity Has Not Been Established, United States v. Mehanna, 669 F. Supp. 2d 160 (D. Mass.
2009) (No. 09-cr-10017-GAO), available at http://freetarek.files.wordpress.com/2011/11/
motioncacheimages.pdf.
143

144 Id.; see, e.g., Griffin, 19 A.3d at 422 (citing United States v. Drew, 259 F.R.D. 449, 452 (C.D.
Cal. 2009)) (describing a situation where a mother created a fictitious MySpace profile and used
the profile in a manner that caused a high school female student to commit suicide).
145

Fox, supra note 65, at 202.
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 539 (D. Md. 2007); Deborah R. Eltgroth,
Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived
Internet Evidence, 78 FORDHAM L. REV. 181, 187 (2009).
147 See 19 A.3d 415, 422, 424 (Md. 2011); Fox, supra note 65, at 216.
148 Fox, supra note 65, at 216 (quoting Griffin, 19 A.3d at 429).
149 Griffin, 19 A.3d at 427–28; see also Fox, supra note 65, at 216–217 (discussing the negative
impact of the three alternative authentication methods).
146

150

See Griffin, 19 A.3d at 424. But see Fox, supra note 65, at 216–21.

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authenticating electronic information.151 Currently, authentication is
evaluated is through testimony or personal knowledge and analyzing
characteristics of the content.152 Commonwealth v. Purdy and Commonwealth v.
Amaral are instructive.153 Commonwealth v. Purdy suggests that “confirming
circumstances,” such as posts originating from the specified persons account
or their acknowledgement to using the account would be sufficient to
authenticate the evidence.154 The court in Commonwealth v. Amaral suggested
that while the identity of an individual is not enough to link them to and
authenticate ESI, other factors such as the person’s picture, DMV records,
phone number, and appearance at the time and place in question can
corroborate the evidence.155
The authentication process should be judged by a more rigorous
standard than the reasonable juror standard. 156 This standard should
encompass evaluating the electronic information by testimony of someone
with personal knowledge; analyzing the characteristics of the content;
conducting an examination of the person who allegedly posted the material
in question; obtaining permission to search the person’s computer; and,
although most problematic, attempting to have the social network in
question provide information about the electronic material posted. 157

CONCLUSION
E-discovery is a relatively novel area of the law and specific guidance is
necessary. Massachusetts’ newly enacted e-discovery rules are a great
starting point for practitioners and judges. The Massachusetts rules, while
slightly modeled off the 2006 Amendments to the FRCP addressing ediscovery, propose new methods and solutions to dealing with the
intricacies of e-discovery. The Massachusetts rules are more clear and
expansive, providing better guidance than the FRCP.
Although the Massachusetts rules are more articulate than the Federal
Rules, specific amendments addressing social media and authentication
should be made to further increase clarity in the implementation of the rules.
The current Massachusetts rules are not suited to address the issues
surrounding social media and authentication as demonstrated by the
151

See supra notes 146–48 and accompanying text.
See supra note 69 and accompanying text.
153 See Commonwealth v. Purdy, 945 N.E.2d 372, 379–82 (Mass. 2011); Commonwealth v.
Amaral, 941 N.E.2d 1143, 1146–47 (Mass. App. Ct. 2011); Scott Milligan, Authentication of Social
Media Evidence [Guest Post], WASSOM.COM (Aug. 9, 2013), http://www.wassom.com/
authentication-of-social-media-evidence-guest-post.html.
152

154

945 N.E.2d at 381.
Amaral, 941 N.E.2d at 1146–47.
156 See supra notes 146–49 and accompanying text.
157 See supra notes 144–54 and accompanying text.
155

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inconsistency and confusion among courts regarding the treatment of this
evidence.