Texas Bar Journal • March 2025

From Posts to Proof

Social media in litigation.

Written by Eric Hudson

Social media has revolutionized how we connect and share—and litigate. With roughly 70% of Americans using social media¹—and well over 90% of millennials glued to their smartphones²—it’s no surprise that evidence on social media platforms is increasingly central to legal disputes. However, the rapid rise of social media has left courts and lawyers playing catch-up, scrambling to establish new rules for preserving, gathering, and admitting this wave of digital evidence.

For attorneys, understanding the nuances of social media is no longer optional—it’s essential. Indeed, people uncritically post content with surprising frequency that could later become evidence in legal disputes. Navigating this evolving landscape requires mastering the rules and ethical boundaries of social media evidence. Here’s how Texas state and federal courts approach this evolving challenge.

HOW TEXAS TACKLES SOCIAL MEDIA EVIDENCE
In Texas, authentication of evidence is all about proving that a document, photo, or post is what you claim it to be. According to the Texas Rules of Evidence, this means presenting “evidence sufficient to support a finding that the item is what the proponent claims it is.”³ This standard allows for flexibility in how evidence is authenticated.

Social media records are generally not self-authenticating under Rule 902. While certain business records may be certified as self-authenticating, courts have held that Facebook and similar platforms do not meet the criteria because they do not verify the substantive content of user posts in the ordinary course of business.

In the case of social media posts by people who deny their authenticity, Rule 901(b)(4) specifically permits distinctive characteristics—such as appearance, contents, substance, internal patterns, or other distinctive details—to serve as a basis for authentication. But when it comes to social media, that’s easier said than done. Texas courts have leaned heavily on circumstantial evidence and unique details—like personal photos, distinctive writing style, or account connections—to determine whether a post can be authenticated. The jury ultimately decides whether the evidence holds water, with judges acting as gatekeepers to weed out the blatantly unreliable.

Tienda v. State⁴ set the stage for social media evidence in Texas. In Tienda, prosecutors introduced a MySpace profile allegedly belonging to the defendant. The page included photos showing his tattoos, posts referencing the crime, and other details linking the account to him. The court ruled that this circumstantial evidence was enough to authenticate the profile. Importantly, the court emphasized that the ultimate question of authenticity is for the jury to decide.

Tienda is a successful example of authentication of a social media post based on the “distinctive characteristics” of social media evidence. What does this mean in practice? If you’re looking to authenticate social media in Texas, focus on:

Photos: Images of the defendant with identifiable features such as tattoos or clothing.⁵
Case-Specific Content: Posts referencing specific events, people, or details tied to the case.
Networking Connections: Links between the social media account and the defendant’s known associates, locations, or activities.

This flexible approach lets attorneys make the case with circumstantial evidence, so long as it is sufficient to establish a prima facie case of authenticity. From there, the jury determines the evidence’s credibility and weight.

FEDERAL RULES AND SOCIAL MEDIA
Federal Rule of Evidence (FRE) 901 requires sufficient evidence to support a finding that the matter is what its proponent claims. FRE 901(b) provides several methods for authentication, including testimony from a witness with knowledge, comparison by an expert or the trier of fact, and distinctive characteristics. Federal courts, like Texas courts, rely on circumstantial evidence to establish authenticity. Factors like the profile name, unique content, and witness testimony often come into play. The federal approach aligns closely with Texas’ standards, emphasizing a jury’s role in determining authenticity.

THE TRCP 193.7 SHORTCUT
Texas Rule of Civil Procedure (TRCP) Rule 193.7 simplifies authentication for documents produced during discovery. Under this rule, any document produced in response to a discovery request is presumed authentic unless the opposing party objects within 10 days of learning it will be used.

While this rule simplifies authentication in many cases, it can also raise concerns about the admissibility of certain evidence, such as questionable social media content produced during discovery. To effectively address such concerns, consider these steps:

Timely Objections: If you believe a document’s authenticity is questionable, file an objection within the 10-day window provided under TRCP 193.7. Clearly state the basis for contesting authenticity.
Examine Reliability: Carefully review the document’s reliability. For example, social media evidence might warrant scrutiny to determine whether it has been altered or accessed improperly.
Request Supporting Evidence: If authenticity is disputed, ask the opposing party to provide additional supporting evidence, such as metadata or testimony from a qualified witness, to substantiate the document’s authenticity.
Evaluate Procedural Compliance: Ensure that discovery rules were followed during the document’s production. If there were procedural violations, this may provide grounds to contest the evidence’s admissibility.

By proactively addressing these issues within the framework of TRCP 193.7, you can safeguard your client’s interests while respecting the rule’s intent to streamline the authentication process.

ETHICAL SLEUTHING: PLAY IT SMART, STAY LEGAL
Many attorneys mistakenly believe they can directly obtain non-public social media content from platforms, but the Stored Communications Act and ethics rules may prevent that. Instead, evidence must typically be obtained from the user or through consent. Tools such as Facebook’s archive feature allow users to download their data, which can then be produced during discovery. Narrowly tailored requests for social media evidence are more likely to be granted, especially in personal injury cases where a defendant’s lifestyle may be relevant.

Using third-party experts or self-authenticating software can streamline this process and ensure that the evidence meets admissibility standards. Attempting to preserve social media evidence independently, such as by taking screenshots, is risky because it often lacks metadata, making it harder to authenticate. In that same vein, lawyers must also avoid deceptive practices, such as “false friending” to access private profiles. Indeed, the Professional Ethics Committee for the State Bar of Texas, in Opinion 671,⁶ evaluated the disciplinary rules and concluded that deceptive practices designed to obtain social media is improper under applicable ethics rules.

The trend nationally has moved toward requiring competency with relevant technologies. The Texas Disciplinary Rules of Professional Conduct 1.01 joined the national consensus in 2019 when it was amended to emphasize that competent representation includes staying abreast of the benefits and risks of relevant technology. The requirement means that Texas lawyers must demonstrate proficiency not only in traditional legal principles but also in understanding how social media impacts investigations, research, client advice, and discovery.

PRESERVATION IS KEY: SAVE THE POSTS, SAVE THE CASE
Lawyers have a duty to advise clients about preserving social media content relevant to their cases. Deleting potentially damaging posts can result in allegations of spoliation, or in a worst-case scenario, dismissal with prejudice. Proper advice includes preserving all relevant data, understanding systems that may contain social media, and understanding privacy settings or auto-delete features.

Lawyers should also educate clients on the risks of oversharing or making impulsive posts during litigation. A seemingly harmless post can significantly impact the outcome of a case. Encouraging responsible social media use during ongoing litigation is as crucial as preserving past content.

THE BIG PICTURE
For Texas attorneys, staying competent in the digital age isn’t optional. Social media evidence is here to stay, and the courts are still catching up. Texas’ approach aims to balance practicality with fairness. But with questions about reliability and ethical concerns looming large, the road ahead is far from smooth.