Publicly available social media and web content frequently contains information relevant to litigation, investigations, and claims decisions. However, identifying that information is only part of the discovery problem. Federal Rules of Evidence 902(13) and (14), adopted in 2017, address the evidentiary gap between locating relevant content and establishing that it can be used in court.
What the Rules Establish
Rule 902(13) provides that certain electronic records generated by a process or system may be self-authenticating when accompanied by the certification of a qualified person. Rule 902(14) extends this framework to data copied from an electronic device, storage medium, or file, provided the copy is authenticated through a verifiable process, such as a hash value, and certified by a qualified person.
Together, these rules allow properly collected digital records to move toward admission without requiring live witness testimony to establish authenticity. This structure can reduce cost, shorten timelines, and remove a predictable point of challenge from opposing counsel.
Certification Depends on Process
The self-authenticating benefit of 902(13) and (14) applies only when the underlying collection supports certification. A qualified person can certify a method, but that certification cannot substitute for a process that was undocumented or inconsistent at the time of collection.
A collection process capable of supporting certification under these rules typically includes:
- A documented, repeatable methodology applied consistently across the matter
- Preservation of source code and metadata alongside visible content
- A clear chain of custody from collection through production
- Review by a qualified analyst who can certify how the record was generated or copied
Content collected without this structure is not automatically excluded from evidence. However, it invites the type of foundational challenge that 902(13) and (14) were designed to help legal teams avoid, often at a stage in litigation when there is limited opportunity to recollect the evidence.
Implications for Legal Teams
Specialized discovery firms exist to address this specific requirement. A structured discovery process searches broadly across relevant platforms, applies consistent methodology, and preserves the technical detail required for certification. This approach supports both components of digital discovery: identifying what is publicly available, and documenting the collection in a manner that can withstand scrutiny.
Legal teams evaluating digital evidence should confirm the collection process before that evidence becomes central to case strategy. A record that can be certified under 902(13) or 902(14) provides a materially stronger evidentiary position than one that cannot, regardless of the content itself.
SMI Aware conducts discovery designed to meet this standard, combining analyst review, structured methodology, and documentation aligned with certification requirements under FRE 902(13) and (14).
To learn more about how SMI Aware can support your next matter with defensible social media discovery, check out this article. Our team is also available for individual consultations for your specific matter needs.
