Authentication of Digital Communications Chart

A common evidence question that arises is how to properly authenticate digital communications. We have written on the topic in several blogs: How Can a Party Show Authorship of a Social Media Post or Other Electronic Communication?, Authenticating Photographs Obtained from Social Media Platforms, Business Records: Posts, Chats, and Texts, New Guidance on Authenticating Social Media, Admissibility of Electronic Writings: Emails, Text Messages, and Social Networking Posts, and more. Last year, I created a chart to highlight the ingredients of authentication our appellate courts found to be adequate or inadequate as a foundation for surveillance video (also see the accompanying blog, Surveillance Video- When It Comes In and When It Doesn’t). I’ve received positive feedback on the chart and practitioners have asked for more evidence content in this format. For a second installment, I chose digital communications. The chart focuses almost exclusively on North Carolina appellate law and emphasizes the key details, often circumstantial in nature, that the courts relied on in deciding whether the foundation was adequate or inadequate. Attentive readers may note that in virtually all the published cases, North Carolina courts held that the foundation was adequate. The exceptions where the courts deemed the foundation inadequate occurred where the proponent of the digital evidence made little to no attempt to lay a foundation. One might justifiably conclude that our courts are becoming more lax in admitting digital evidence as social media and cell phone communications become more and more ubiquitous. However, questions remain as to the precise quantum [...]