Pitfalls of Screen Grabbing

You found a smoking gun Facebook post, tweet or website that will completely torpedo your opposition's star witness.  Don't let authentication issues keep it out of evidence.

Most lawyers probably use the screen grab method of saving posts from Facebook or other websites.  The lawyer finds the post, hits "print screen" on the keyboard, and then saves the file; or perhaps he or she simply prints a copy of the post and places it in the file.  

This will likely be sufficient for use at a deposition, but what if the witness is uncooperative or opposing counsel decides to fight you on the admissibility of the print-out?  There are any number of ways this could happen.  The witness claims that his or her account was hacked and someone else posted the information.  Opposing counsel not-so-subtly suggests that the post was photoshopped.  When you screen grab a key piece of evidence off a website, you are relying solely on the other side's cooperation in getting it admitted into evidence.

Ideally, you should have a solid backup plan.  For authentication of evidence, this means a witness who can testify about seeing and saving the information, and it won't hurt to have other indicia of reliability that shows the evidence is, in fact, what it appears to be - metadata showing time, place, website address, etc.

As for the witness to testify about viewing and saving the information, if the lawyer is the one doing the work, it becomes problematic since most lawyers would rather avoid making themselves a witness in their own client's trial.  A paralegal or legal assistant could perform the work, but opposing counsel would likely exploit the employment relationship as evidence of bias. 

There is no need to hire a computer expert per se, but you may want to consider hiring an outside company to pull the information and provide a witness if needed.  It doesn't completely solve the bias from a payment standpoint, but it looks significantly better than putting your long time paralegal on the stand to authenticate a particularly incriminating piece of evidence.  The company you hire should also be able to provide metadata to help the authentication issue.

In short, your primary method of introducing evidence shouldn't be the other side's cooperation. Sure, it's great if you have that sort of working relationship, but it is always advisable to have the authentication and admissibility issues sorted out before asking a favor from opposing counsel.