Email Evidence in Divorce Litigation

Collecting Email Evidence in Divorce
What to Look for and Where to Find it (Quickly)

The overarching federal statute is 18 U.S.C. §1030 or the Computer Fraud and Abuse Statute. Section 1030 prohibits (a) intentionally accessing a computer without authorization from any protected computer if the conduct involved an interstate or foreign communication; (b) knowingly and with intent to defraud, accessing a protected computer without authorization, or exceeding authorized access, and by means of such conduct furthering the intended fraud; (c) intentionally accessing a protected computer without authorization, and as a result of such conduct, causing damage. A protected computer is any computer used in interstate or foreign commerce or communication, which is obviously quite broad, but the key in family law cases is typically “use without authorization.” Wiretapping statutes and Electronic Communication Privacy Act also come in to play with email discovery and will be discussed later.

State Courts have been all over the place on the balance between privacy and discoverability. Below are a few examples:

Parker v. Coletti, 2013 Pa. Dist. & Cnty. Dec. LEXIS 72 (Pa. County Ct. 2013): A husband and wife (who were both attorneys) were going through a divorce, and the husband requested to inspect and copy the hard drive of the wife’s Dell computer, which was considered martial property. The wife objected and the matter was assigned to a Special Discovery Master. The Master found the discovery of the hard drive to be permissible. Additionally, the Master prohibited any privileged information between the wife and her attorney not to be disclosed, and the husband was prohibited from discovering information, on the hard drive, after the parties’ date of separation. The wife appealed. The court concluded the hard drive is a martial property, therefore discoverable, but affirmed the Master’s limits on protecting the privileged information between the wife and her attorney.

Rosenberg v. Rosenberg, No. C4-01-1148, 2002 WL 15649 (Minn. Ct. App. Jan. 8, 2002): Wife believed there could be evidence on the husband’s computer of hidden assets, but otherwise, she had no real evidence of concealment. The court found the wife’s requests for authorizations to access the husband’s business computer to be invasive and based purely on conjecture. Thus, the appellate court upheld the denial of the discovery requests.

Byrne v. Byrne, 650 N.Y.S.2d 499 (N.Y. Sup. Ct. 1996): Husband’s laptop computer was owned by his employer, but was also used for his personal finances unrelated to his employment. The wife took the computer to her lawyer to have its memory copied. The real issue was not who possessed the computer, but who had access to the computer’s memory. The court concluded that the computer, commonly located in the marital home, was akin to a file cabinet within the marital home. Clearly, the wife could have access to the contents of a file cabinet left in the marital residence. Likewise, she should have access to the contents of the computer.

Stafford v. Stafford, 641 A.2d 348 (Vt. 1993): Wife found a file on the family computer called “My List,” which was similar to a notebook she had found detailing husband’s sexual encounters with various women. The notebook disappeared before trial, but the court found the file on the family computer to be sufficient to identify notebook as a list of adulterous encounters.

State v. Appleby, 2002 WL 1613716 (Del. Super. Ct. July 18, 2002): Here, husband and wife routinely commingled computer hardware. Despite wife having possession at time of trial, it was “theirs” in every sense.

The balance then between privacy and discovery appear to revolve around, first, whether it was marital property or was used by others in the home. The proponent is likely to encounter greater resistance if the information was password protected. Second, if it was not marital or readily used by others in the home, is there some credible reason to suspect relevant evidence will be discovered? Case law seems to indicate that you must have more than a mere suspicion, but it cannot hurt to try because on appeal it is often all about the standard of review. Frequently, an appellate court will be resistant to state that the trial court abused its discretion.

Knowing the technology can be crucial in E-discovery so that you know what and how to retrieve data. Both flash drives and external hard drives are back up storage mechanisms for a user’s computer. Generally, each may be used to store all types of data found on a traditional computer or internal hard drive, including: word processor documents, spreadsheets, photos, and videos. An external hard drive may be set up to automatically back up any files saved on the main computer and may be worth looking at if you suspect something is missing from the main drive. An external hard drive may be composed of one of many types of memory, but typically are a hard disk drive like those found in a traditional computer. External hard drives with the capacities of up to a massive 8TB of storage (1TB equaling approximately 140 million pages of text) can now be purchased readily by consumers.

A hard disk drive records data by magnetizing a thin magnetic material on a spinning disk. It may be important to know what type of drive is used in a computer or externally because when you delete a file in windows it does not remove the magnetic coding from the disk. Deleting merely removes the location of that file from the directory with which an application would access it. The file itself may remain there undisturbed until a later application saves something over it.

The flash drive is probably the biggest competitor of traditional hard disk drives. Originally invented in 1980, they have rapidly gained in popularity for their portability and durability. Flash drives unlike their hard drive counterparts, do not have any moving parts and can retain data without a power source. They typically connect to a computer through a USB port and boast an impressive capacity of up to 2TB in 2013. Flash drives, like a hard drive are often re-writable, and memory deletion typically operates in a fashion similar to hard disk drives.

Similar to a computer, a spouse may have a right access to an external hard drive or flash drive used in the home, but not if such items are discoverable materials under Fed.R.Civ.P. 34. If planning to offer into evidence, you still must ensure it is relevant, authentic, non-hearsay or meeting an exception and that its probative value outweighs any prejudice.

While over the past decade courts have to some extent learned to cope with electronic discovery from computers, cell phones, and extra storage drives, cloud services present a few new challenges. The National Institute of Science and Technology defines Cloud computing as “a model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.” Essentially, the cloud allows for internet-based services to provide users with remote access to software, resources, and information stored elsewhere. The computer systems and servers storing the data or applications are often operated by a third party, not the person or company using the resources.

Cloud computing has its advantages for users, and disadvantages for litigants. Cloud computing is growing rapidly for good reason. It substantially minimizes information technology (IT) costs, offers potentially limitless storage capacity, does not require self-management, can be tailored to individual needs and provides instant mobile access. It is the limitless capacity and lack of self-management that poses the challenges for litigants. While computer hard drives now contain vastly more data than ever before, creating even more items of evidence to sort through, cloud storage only exacerbates that difficulty. The particularly interesting aspect is the lack of direct control the cloud user typically has over his or her stored data.

Traditionally, companies stored and owned their own data located at specifically constructed data centers. Even if the company or individual leased the space, they at least owned the hardware and data itself. Cloud services change this to where the user no longer owns the hardware they operate. Cloud services follow three basic service models. The most general model is the Software as a Service (SaaS) model where an individual pays only for existing applications in the cloud. The user has no control over how data is stored or altered within the system. For lawyers, a familiar example of this is Westlaw or LexisNexis. The second model is the Platform as a Service (PaaS) model, which gives the user the ability to install and tailor their own software applications in the cloud. The user still, though, has no control over the servers or storage provided. Finally, the Infrastructure as a Service (IaaS) model offers clients the most control. There the user rents access to the cloud’s servers and hardware, but may use its own operating system and software that enables the cloud to work for the user. Importantly, the service provider may still re-locate data from one physical location to another.

The ability of the cloud provider to re-locate data becomes important in looking at Fed. R.Civ.P. 34(a), which defines discoverable information as “in the responding party’s possession, custody, or control.” Federal courts have held that data in the possession of a third party to be within Rule 34(a) so long as the party “has the right, authority, or practical ability to obtain the documents from a non-party to the action. The problem that generally arises though is locating and preserving the data for pending litigation. Third party control, through a cloud, may leave the user subject to sanctions when the data has been moved, altered, or is otherwise inaccessible.

In discovery, the responding party has the burden to preserve, identify, and collect ESI stored in the cloud. While the comments to Fed. R. Civ. P. 37(e) states: “A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case,” and it also states that the duty to preserve evidence attaches when the party reasonably anticipates litigation. For those operating under any cloud model but the IaaS model, a responding litigant will not be able to prevent any auto-delete functions associated with the cloud. Important data may also be lost if the service provider chooses to terminate cloud services provided to the user. For instance, Amazon’s 2012 service agreement provided that termination of the agreement terminated all rights to any of the data stored in the cloud.

This inability to retrieve ESI from the cloud may trigger sanctions for the responding party. Court may impose sanctions for spoliation under Rule 37 when they deem it just. The standard seems to vary by circuit, as some will grant a sanction if the responding party is culpable in any way, which is if they have any responsibility or control. Other courts require a showing of bad faith.

Under either standard, it is important that you know the cloud structure and operating methods that your client employs. Having a basic knowledge of your provider will help you negotiate the service agreement to begin with, locate data when the time arises, and ensure that the data is unaltered when it comes time to produce. Moreover, it will enable you to create a prospective litigation plan that may save you time and money in the future.

If you are the party requesting data from the cloud, a basic idea of how the cloud operates will also be useful. It may inform you that the targeted party does have significant control over their data as they are employing an IaaS cloud model or that the documents or the meta-data contained in the documents you have received may have been altered in the cloud. It may even tip you off that other documents may have been deleted, perhaps innocently, while contained in the cloud. Either way, a rudimentary knowledge of the opposition’s system will only help your discovery efforts.

With further regard to the discovery of emails, subpoenaing internet service providers will typically only generate the sender and recipient of a message. ISP’s, like cell phone providers, often delete this information quickly. However, certain service providers do retain the data so it may be worth the attempt.

Simply put, what to look for depends on what type of case you have and what types of allegations you are seeking to prove or disprove. Knowledge of what you need to prove your point is crucial because of the volumes of potential ESI out there. Not only will a broad meandering search waste a lot of your client’s money, but also such attempts are likely to be characterized as an impermissible fishing expedition by the court.

Let traditional sources inform your use of new electronic sources. If you would typically subpoena bank records and credit card statements you might consider examining a computer’s spreadsheets for financial information. Or, perhaps you would consider looking for emails to or from known business associates. If you are looking to prove some sort of conduct between the parties, you might start with emails and text messages. Communications might provide for abundant examples of verbal abuse or promises broken. If allegations of substance abuse or adultery have been leveled, you might consider mining for geolocation data that can show husband or wife was at the bar instead of the soccer game. Finally, consider often-overlooked aspects of social media, like status updates and friends lists. The uses for ESI are as broad, if not broader, than the traditional sources of information.

This means you even need to be efficient once you locate your ESI source. Careful selection of keyword searches can be crucial to obtaining information relevant to your case. Through the various social networking web pages valuable information can be obtained regarding adverse parties, key players in your case, and expert and non-expert witnesses. Keyword searches can be performed in various search engines, including Google, Yahoo or Bing. Research can also be performed on Westlaw. Through these vehicles, you can often find invaluable information including contact information, employment information, social information, and habits of various parties in your case.

There are some important basics to know about key word searching. For instance, it can sometimes be wise to focus on items most likely to be discarded or overwritten first, like emails and instant messages. When doing so, and in searching in general, consider the Who, What, When, Where, Why, and How of your case. Be sure to remember assistants or those who may handle your target’s files or emails. Additionally, if at all possible, remember to discuss with the custodian of the system possible abbreviations used by the party in question. Try to focus on important dates that might help sift through potentially voluminous amounts of information. Finally, do not be over confident in your search abilities based on Google, Yahoo, Bing or even Westlaw experience. Sifting through data on a computer can be an entirely different animal, so here are a few additional suggestions to fashion queries:

(1) Start with pleadings, interrogatories, and requests for production to see what information you already have;

(2) Seek input from key parties and witnesses;

(3) Examine what you’ve got and the tools you will use;

(4) Communicate and collaborate;

(5) Incorporate likely misspellings, abbreviations and synonyms;

(6) Filter and duplicate first;

(7) Tweak the queries and retest; and

(8) Check the discards.

If the opposing party is somewhat cunning or deceptive, you might need to partake in a somewhat more detailed examination.

Finding a Treasure Trove of Information in the Metadata

The proposed amendments to Civil Rules 26 and 34 effective as of December 2006 further broaden the definition of what constitutes an original document and expand both the discovery and usefulness of documents whose original format is electronically stored information (ESI). Indeed, the proposed new discovery amendments seem to require, as a default position, that any discoverable ESI be produced upon request in its native format, i.e., production of Microsoft Word documents should include identical copies of the original .doc format files, production of photographic documents should include digitally identical copies of the original JPEG format files, etc.

It appears that the new federal rules will also generally require the production of an electronic file’s “metadata,” that is, the electronic files internally stored information about the creation and alteration of any electronic file. Although privilege reviews will become more complex when you must produce metadata, the production of document metadata may be the most readily available, although not entirely fool-proof, means of determining the authenticity or alteration of electronically stored photographs. Most native format files, including the JPEG photographic files made by most modern digital cameras, will include the documents metadata unless it is rather obviously stripped out with one of the numerous metadata removal programs now on the market.

Removing metadata from photographic files produced by non-attorneys and by expert witnesses is inappropriate in most instances except when there are obvious privilege issues. Consider, for example, how untrustworthy a photograph would be if the internal metadata showing the camera model, focal length and original date/time stamp is later removed. Concerns about its accuracy and authenticity would be very high, particularly if the metadata would have shown use of a camera that the witness did not own or that the photograph was taken on date or time remote from the pertinent time frame. On the other hand, if you know how to use a photographic files metadata, then you can use it to authenticate your own photographs for evidentiary purposes and possibly impeach the other party’s exhibits.

Do-it-Yourself Strategies for Recovering “Lost” Email Data

If you know that you have deleted relevant data, or you suspect the opposing party has done so, you have several options. First, if you own the device or account in question, you may be able to personally contact the provider without the need for a subpoena. It is important to do this quickly before the service provider deletes the information from its servers. The same goes if you suspect the opposing party has deleted information, although in this case you will likely need a subpoena, but you can attempt to gain consent from the opposing party.

Additionally, and likely your best bet is to hire a computer forensic expert. As discussed above, they may be able to uncover data believed to have been deleted long ago, or they may uncover data that was merely hidden from the common user. They may also be able to provide insight as to the meaning of metadata discovered on various files.

Finally, do not underestimate the ability to locate information elsewhere. People often sync any number of devices to each other. For this reason, a home computer may be a better source of information than you might initially suspect. Also, beyond other devices consider other people. In the process of jubilant celebration or angry venting, people often write, forward, or post about their recent endeavors. You might discover that the photos you forwarded to a friend are still on their device or that text messages to a mistress deleted from the husband’s phone are still located on the mistress’ devices. In today’s day and age, it is rare that a piece of ESI is truly gone forever. Just be prepared for any additional authentication issues you may have when locating data from an alternative source.

Requesting Emails From Employers

Often, a subpoena may be issued to a third party, that is, someone who is not a plaintiff or defendant in a lawsuit or the target of an investigation. For example, in a lawsuit between two corporations, one of them may subpoena the records on the home computer an individual witness. In Sonomedica v. Mohler, the court punished witnesses to a business transaction for failing to turn over computer records under a subpoena duces tecum.

How do third parties feel about a demand that they turn over their records in relation to a lawsuit that does not involve them? Often they are unhappy and reluctant to comply. But generally they are required to comply. As the US Supreme Court declared, “there is in fact a public obligation to provide evidence . . . and . . . this obligation persists no matter how financially burdensome it may be.” To varying degrees, the rules for a subpoena provide for some (modest) compensation to a person who is required to comply with a subpoena.

Computer Forensics Experts – When and How to Use Them

The advantages of hiring an outside investigator can be numerous. To begin, if well selected, the individual will be a professional at their trade. In terms of e-discovery, this means that the expert may be able to find all sorts of deleted data from financial records to stored emails. Sometimes this information has not even been deleted, it merely requires someone with the right know how to uncover it. Also, there are instances in which hiring a professional forensic computer analyst to examine a computer or hard drive is the only way important evidence can be found. Useful information may come from unexpected sources as even “meta data,” which is really data about data, can provide the “smoking gun.”

Other advantages are that professionals can access and often mirror a computer or device without damaging any of the files or hardware. This is something even an experienced attorney cannot always be certain of. Also, the process is usually pretty quick. A forensic image of a hard drive often only takes four to six hours and a comprehensive report from a forensic examiner usually takes between two to four weeks. Finally, a forensic report can be a very useful way to prove spoliation of evidence.

As with anything, hiring an outside investigator has it disadvantages as well. First and most obvious is that the process can be expensive. Often there are charges for the duplication of any device or hard drive, additional charges for any forensic report produced, and yet more fees for the expert to provide testimony at trial. Moreover, there is no guarantee that the expert will find anything. This may be because the party has used sophisticated programs to wipe out data or obscure data such that even an expert cannot identify it. Also, and perhaps commonly, there is the risk that there is simply no incriminating evidence to be found on the device.

Further, it is a good idea to make certain that the individual you are hiring really is an expert. You do not want to damage potentially valuable evidence merely because you hired the first person you found who claimed to be knowledgeable about computers. It is even better if they have some idea of the law and admissibility standards.

Finally, if using an outside investigator to examine computer hardware, you must maintain the chain of custody. Check your local standards, but typically shipping via Fed-Ex with a tracking number will suffice.

Avoiding Electronic Communication Privacy Violations

The use of email by opposing spouses falls within the interplay of wiretapping and electronic stored communications laws, and consequently, courts have had some difficulty in determining which laws, if any, apply. The predominant approach seems to be that emails prior to being sent or once received do not fall within wiretapping statute

Take for example a case from the North Carolina Court of Appeals, Evans v. Evans, where sexually explicit emails offered by the husband in a divorce action did not violate ECPA where interception of emails was not contemporaneous with transmission. The emails were recovered from hard drive of family computer.

However, one Florida Court has concluded that spyware-capturing emails in a family law case did violate ECPA and admission of these emails was within the discretion of trial court. In this case, the court granted an injunction against using or disclosing the information gained.

Most spyware/keystroke capture programs remain legal, as long as they are not capturing contemporaneous transmission of communication (outside of Florida). It is not, however, wise to advise a client to use these because the law on the topic is vague. You can counsel your client to search for spyware planted by the opposing party, but often such programs are not really there.

In Gurevich v. Gurevich, a wife sought to introduce as evidence emails she obtained from her estranged husband’s email account, in a divorce proceeding. The wife contends that the husband gave her the password and never revoked her from accessing his email account. The court references CPLR 4506 Penal Law section 250.05, which states that “a person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication”. The court took the position that even if the husband’s facts were true, the wife may have unlawfully retrieved information from his computer but there was no interception, which does not violate CPLR 4506. The emails were admissible at trial as long as the email did not violate the attorney client privilege.

Ensuring Preservation of Email and Other ESI

There are some important basics to know about keyword searching. For instance, it can sometimes be wise to focus on items most likely to be discarded or overwritten first, like emails and instant messages. When doing so, and in searching in general, consider the Who, What, When, Where, Why, and How of your case. Be sure to remember assistants or those who may handle your target’s files or emails. Additionally, if at all possible, remember to discuss with the custodian of the system possible abbreviations used by the party in question. Try to focus on important dates that might help sift through potentially voluminous amounts of information. Finally, do not be overconfident in your search abilities based on Google, Yahoo, Bing or even Westlaw experience. Sifting through data on a computer can be an entirely different animal, so here are a few additional suggestions to fashion queries:

(1) Start with pleadings, interrogatories, and requests for production to see what information you already have;

(2) Seek input from key parties and witnesses;

(3) Examine what you’ve got and the tools you will use;

(4) Communicate and collaborate;

(5) Incorporate likely misspellings, abbreviations and synonyms;

(6) Filter and duplicate first;

(7) Tweak the queries and retest; and

(8) Check the discards.

If the opposing party is somewhat cunning or deceptive, you might need to partake in a somewhat more detailed examination.

Email: Authentication and Hearsay Hurdles

Under FRE 902(7), business emails can be self-authenticating with information showing the origin of the transmission or other identifying marks. This can be done through the authentication of company logos, email addresses, and other corporate identifiers. One trial court found emails to be authenticated when accompanied with a declaration that the emails were retrieved from the company’s computers and the printouts were accurate representations of the retrieved messages.

A common objection to social media evidence is found under Fed. R. Evid.901 that the material is not authentic. In that case you can look to Fed. R. Evid. 904(b)(1), authentication through the testimony of a witness with knowledge that the evidence is what it is claimed to be. Electronic communications-including email, text message, or social media message can be authenticated through the testimony of the author (including participant in online chat) or 904(b)(4) permits authentication using circumstantial evidence, in conjunction with the appearance, contents, substance, internal patterns, or other distinctive characteristics.

Essentially, a witness testifies that an email, text message or social media message, originated from the known email address or social media page of the purported sender. Most courts will find this to be sufficient. For instance, in United States v. Lanzon, the court upheld the admission of transcripts of an instant messaging conversation an undercover agent had with a man attempting to solicit sex acts from a minor. The defendant argued that copying the instant messaging conversations into a word document altered the conversation such that they could not be authenticated. The court rejected this under Fed. R. Evid. 901(b)(1) stating the “proponent need only present enough evidence ‘to make out a prima facie case that the proffered evidence is what it purports to be.”

However, some courts have been more stringent. For example, in Griffin v. Maryland, a MySpace printout was admitted into evidence as it contained the birth date, photo, number of children, and nickname of the defendant. The trial court stated that “the characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety, including authenticating an exhibit by showing that it came from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him.” The Maryland Court of Appeals would eventually reverse the decision of the trial court because the “facts known peculiarly to him” could have easily been duplicated by another user in this instance.

Consistent with this is People v. Lenihan, where the mother of the defendant in a murder case downloaded photos from the government witness’s MySpace page four days after the shooting. The court found the defendant’s foundation improper in light of the ability to photo shop, edit photographs, and the fact that the defendant did not know who took the photographs or who uploaded them.

Likewise, in Commonwealth v. Williams, evidence was admitted from the defendant’s MySpace account. The prosecution was able to provide testimony from witnesses that inculpatory messages had been sent from the defendant’s account. However, the Massachusetts Supreme Court found the trial court’s admission of the evidence improper, because there had been no showing that only the defendant had access to the account. The court noted that just because a person received a phone call from a person claiming to be person A that did not actually mean that the person they spoke with was person A.

When it comes to admission of social media evidence, it appears that the key issue for the court is a fear of fabrication. While courts have struggled with this, some have begun to consider this a factual issue for the jury. In People v. Clevenstine, another Internet sexual assault case, the state presented testimony from a computer forensic analyst and a legal compliance officer from MySpace. The legal compliance officer was able to provide testimony that satisfied the Griffin court’s concern that the messages originated from the MySpace account, and he satisfied the Williams court’s concern about access and use of the profile. The court stated that under Fed. R. Evid. 104(b) the “trier of fact could weigh the reliability of the MySpace evidence against the possibility that an imposter generated the material in question.”

With regard to email, some courts will require authentication from the sender, some from the recipient, and some will accept authentication from either. For instance, in Network Alliance Group L.L.C. v. Cable & Wireless USA, Inc., inconsistencies within the alleged e-mail correspondence suggested that the correspondence was not authentic. The date stamp for one of the email messages listed a date well into the future and an incorrect day of the week for that date.

Situations like Network Alliance, where all facts surrounding a correspondence are disputed, have led to alternative methods of authenticating ESI. One of these approaches has been to take judicial notice of other commonly known characteristics of computers. Check local authority as some courts interpret authentication requirements tougher than others and some will simply not accept it if another more traditional form is readily available.

Most recently, in Campbell v. State, the court upheld the admission of Facebook messages as being authenticated, in a domestic assault case. The court asserted that Facebook present authentication concerns that are twofold. “First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate, See, Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Second, because a person may gain access to another person’s account by obtaining the user’s name and password, the person viewing communication on or from an account profile cannot be certain that the author is in fact the profile owner. The court in Tienda v. State held that the appropriate method for authenticating electronic evidence will often depend on the nature of the evidence. In Campbell, the court held that the Facebook messages provide circumstantial evidence supporting that the boyfriend assaulted his girlfriend, therefore supporting the lower court’s ruling.

To summarize, there are several methods of authentication for social media evidence. The most obvious is to ask the owner/creator of the social media profile if they added the questioned content under Fed. R. Evid. 901(b)(1). Second, you can always formulate requests for admission with a printout of the desired posts attached. Third, you can bring in computer or social media experts to testify, as was done in Clevenstine under 901(b)(3) or maybe even 901(b)(9). Some have also used Fed. R. Evid. 901(b)(4) Distinctive Circumstances or Characteristics, which parallels the initial reasoning applied by the lower court in Griffin. Finally, you can use conditional relevancy under Fed. R. Evid. 104(a) and (b). Until there is a commonly accepted method of authenticating social media evidence, the practitioner should be prepared to meet the most exacting standards.

Even if you can establish that electronic data are authentic, you are only halfway there. As with all evidence, you also must establish that the documents are admissible under the law. This section focuses on overcoming hearsay objections. Electronic data that is offered for the truth of the matter asserted is classic hearsay and thus generally inadmissible under evidentiary rules. To admit the emails as direct evidence, the proponent needs to satisfy an exception to the hearsay rule.

As with other documentary evidence, it is important to focus on who prepared and transmitted the electronic communication. For example, the argument for admissibility against a company is solidified if the email preparer is an officer or employer of that company. Emails sent by corporate officers or employees may be considered admissions by a party’s agent under FRE 801(d)(2)(D) and therefore fall outside the definition of hearsay.

Assuming that the document was not prepared by the opposing party, the vast majority of corporate email is generally introduced into evidence under the business-records exception to the hearsay rule. “A party seeking to introduce an email made by an employee about a business matter under the hearsay exception under FRE 803(6) must show that the employer imposed a business duty to make and maintain such a record.” For a document to be admitted as a business record, “there must be some evidence of a business duty to make and regularly maintain records of this type.” Emails are admissible business records when they are timely recorded, regular activities, they memorialize events and conditions, and they have no indicia of untrustworthiness.

Although this standard may seem to be easily satisfied, counsel should be aware that courts have sometimes adopted a rigid approach to the business-records exception. For example, in United States v. Ferber, the court found that emails submitted by the government did not fall under the business-records exception because “while it may have been [an employee’s] routine business practice to make such records, there was no sufficient evidence that [the employer] required such records to be maintained.” If the proponent fails to submit information regarding the practice or composition of the emails at issue, a court likely will deem them inadmissible as business records.

In addition, counsel should carefully prepare deposition witnesses for examination on this issue. In one case, the court rejected the emails at issue because the email sender testified at deposition that (a) she did not know where she got the information she included in the email about missed shipments, (b) she did know what she was referring to when she made certain statements about vendor charges, and (c) she did not know what she meant when she said that there were missed shipments. The court found that the plaintiff failed to present evidence that the email sender either made or recorded her statement based on personal knowledge of the issues of discontinued business, missed shipments, or vendor-compliance charges. Therefore, the court granted the defendant’s motion to strike the email as inadmissible hearsay.

Furthermore, given the amount of information contained in a single email chain, one has to be aware of multiple levels of hearsay. Courts frequently reject email discovery when the proponent is unable to satisfy hearsay exceptions for each account contained in an email. This concern is particularly apparent when dealing with long email chains, which may result in numerous hearsay and admissibility issues. For example, where there is no evidence that the emailing party had firsthand knowledge of the matters contained in the email but rather was forwarding someone else’s version, courts are more likely to preclude the entire email from being admitted.

Litigants also should be aware that the admission of email evidence does not necessarily provide a clear path for email attachments. Information contained in or attached to emails, such as sales records, are potentially subject to independent scrutiny under the evidentiary rules. Attachments will be admissible under the business-records hearsay exception when the underlying data is regularly received by email and the emails were retained as records of each order.

How to Successfully Authenticate and Admit Email Evidence
Applying the Rules of Evidence to Email

The Federal Rules of Evidence, relevant federal cases and state cases applying similar rules help illustrate how digital evidence can be authenticated. They are useful guides because “Missouri is one of only a handful of states that do not have evidence codes or stated rules of evidence.” Also, there are relatively few Missouri appellate cases involving the authentication of ESI. Federal Rules of Evidence 104(a) and 104(b) set forth the respective roles of the trial judge and jury in the authentication of conditionally relevant evidence. If an opponent offers evidence casting doubt on the proponent’s evidence, the judge does not exclude the evidence. But when it comes to the authentication of social media evidence, not all judges may be aware of how conditionally relevant evidence is authenticated. Attorneys should understand . . . that the judge may not be familiar with the interplay between Rule 104(a) and (b).

In the federal court system, Federal Rules of Evidence (FRE) 901 and 902 govern authentication. FRE 901(a) notes that evidence is authenticated if there is “evidence sufficient to support a finding that the matter in question is what its proponent claims.” FRE 901(b) then provides a list of potential ways that a litigant can satisfy this standard. For example, the easiest way to authenticate the data is under FRE 901(b)(1), which allows a witness with personal knowledge to authenticate that the data is what it is claimed to be. One simple way to comply with this standard is to introduce the electronic document during a deposition and have the creator or recipient of the email confirm that the email is genuine.

If such testimony is unavailable, courts have permitted electronic data to be admitted under FRE 901(b)(4), which permits authentication through distinctive characteristics such as the document’s “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” In United States v. Safavian, the court admitted emails based on the email addresses contained in the “to” and “from” fields, and because other identifiable matters such as the work involved, signatures, and other personal and professional references. The court permitted other emails to be authenticated under FRE 901(b)(3) by allowing the comparison of email addresses and formats to permit related emails into evidence.

Pursuant to Minn. R. Evid. 901(a), authentication means the party offering the electronic evidence must present sufficient evidence to support a finding that the exhibit in question is what the proponent claims it to be. The most common method of authentication is the use of testimony by a witness with knowledge that the exhibit is what it claims to be. Minn. R. Evid. 9.01(b)(2). Inconsistencies and conflicting inferences regarding authenticity often go to the weight of the evidence, not its admissibility. However, because e-evidence is subject to manipulation and questions of authorship are often hotly disputed, the requirement to “authenticate” is usually the most difficult to overcome.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to “prove the truth of the matter asserted.” Minn. R. Evid. 801(c). If the statement is being offered to prove that the assertion is true then the statement is hearsay and is not admissible unless a recognized hearsay exception applies pursuant to statute (M.S. 595.02, subd. 3; 260C.165, etc.) or Rule of Evidence 803, 804, 807. However, if the statement is offered for some other relevant purpose such as to prove knowledge, notice, or the declarant’s state of mind, it is not hearsay and is admissible as long as it is “relevant,” not “unfairly prejudicial,” and is not “privileged”. One proven method to determine whether a statement constitutes hearsay is to apply what has been referred to as the “Fool-Proof Hearsay Test”: 1)Ask whether the relevant purpose for offering the out of court statement is its truth; if the answer to that question is “yes”, the out of court statement is hearsay. If the answer to the question is not clearly “yes,” ask “Must the content of the out of court statement be believed in order to be relevant?” If yes, the statement is hearsay. If no, the statement is not hearsay.

Hearsay is evidence of an out of court statement made by someone other than the testifying witness and offered to prove the truth of the matter asserted. The statement can be oral or written. Although this definition seems simple, its application can be quite confusing. Hearsay evidence, if offered and there is no objection, can be admitted and is entitled to whatever appropriative value it may merit. The hearsay rule does not apply if the same statement is not offered for the truth of the matters contained therein.

Under Minn. R. Evid. 401 (and comments) relevant evidence “means evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minnesota adopts a liberal approach to relevancy. If the offer has any tendency (even a slight tendency) to make the existence of a fact more probable than it would be without the evidence, it is relevant. Even if relevant, evidence may be unfairly prejudicial and maybe excluded on that basis. Evidence is “unfairly prejudicial” if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Minn. R. Evid. 403. M.S. 595.02, subd.1, identifies various communications that are considered “privileged” and thus, not admissible unless the privilege is deemed waived.

Evidence offered by either party in the trial, to be admissible must be relevant to the issues of the case and tend to establish or disprove them; matters that are wholly irrelevant and that are incapable of affording any legitimate proof, presumption, or inference regarding the fact or facts in issue must be excluded. Merely because a fact is remote in point of time or of significant value does not of itself, preclude its admissibility. Admissibility depends, to a large extent, on the nature and the circumstances of the case and rests largely in the discretion of the trial court. The real dangers of relevancy lie in the level of unfair prejudice, confusion, delay or needless presentation of cumulative evidence.

Email Messages and Chains

An e-mail often has attached to it the email or series of emails to which it is responding, creating an email “chain,” also known as a “string” or “thread.” Some courts have found that each email in a chain is a separate communication, subject to separate authentication and admissibility requirements. A lawyer should thus be prepared to authenticate every step of a chain.

Most email systems, for instance, allow a person forwarding an email to edit the message being forwarded. Such alteration wouldn’t be discernible to the recipient. Emails are also more prone to a kind of hearsay-within-hearsay problem: an “email chain” attaches to an email every email that came before it in a discussion. It isn’t enough to get the most recent email into evidence when that email attaches a string of previous emails. All of the prior emails may need to be separately authenticated and found admissible.

Self-Authenticated Emails

Many practitioners think that emails are like business letters and will be admitted into evidence just as easily. Emails, however, may be more prone to problems of authenticity and hearsay than traditional written documents. People often write emails casually, dashing off comments with an informality they would never use with a letter. Little care is given to grammar and context. Their signature or even their name may be omitted. Authenticating an email presents issues not faced with a traditional letter with its formal letterhead, paragraph structure and signature block. Additionally, emails are arguably more susceptible to after the fact alteration.

With regard to email, printouts typically contain the same identifiable information that is found in the email itself. The email address may incorporate the target’s name, the signature block may be unique to the sender, and the conversation may detail characteristics unique to the defendant. Typically, having a witness testify as to the whether the printout is a fair an accurate depiction of the email, highlighting various identifiable characteristics is enough for admission.

Web pages, instant messaging, and chat rooms have been handled similarly. In Firehouse Restaurant Group, Inc. v. Scurmont LLC, the court considered the authenticity of several printouts from various websites in a trademark dispute. The plaintiff asserted that the printouts could not be properly authenticated. The defendant argued that most of the printouts contained dates and web addresses on them and “courts may consider ‘circumstantial indicia of authenticity’ such as the presence of the date and identifying web address for purposes of authentication.” The court concluded that these distinctive characteristics were sufficient to make a prima facie showing of authenticity. Similarly, United States v. Tank, found that chat room transcripts and printouts could be authenticated by the testimony of one of the participants in the online chat.

In LaLonde v. LaLonde, the Court of Appeals of Kentucky considered pictures posted on Facebook when deciding a child custody case. The husband sought to introduce photos from Facebook, to show his wife’s alcoholism. The wife argued that the photographs could not be authenticated “because Facebook allows anyone to post pictures and then ‘tag’ or identify the people in the pictures.” However, the court reasoned that “there is nothing within the law that requires her permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires her permission when she was ‘tagged’ or identified as a person in those pictures.” Accordingly, the wife’s testimony that she was the person depicted in the photographs.

Email Attachments

Attachments to authenticated emails are themselves authenticated. In Madison Holdings, LLC v. Punch Int’l, Plaintiffs objected to documents attached to Maes’ executed declaration filed on June 30, 2008. Specifically, Plaintiffs objected to an email from Vandekerckhove to Maes dated July 14, 2004, a certified translation of the email, and two marked-up drafts of the APA, which were attachments to the email. Although these documents were not originally attached to Maes’ unexecuted declaration when it was first filed on June 13, 2008, the Court, in its discretion, allowed them. Defendants contend that Maes discovered, upon final review of the materials, that these documents were missing and, as such, produced them when he executed the declaration. Additionally, Plaintiffs contended that Defendants failed to properly authenticate the email attachments. The Court, however, disagreed. These documents were attachments to an email that was authenticated by Maes’ declaration. Accordingly, Plaintiffs objections were overruled.

Images/Photos

Under Evidence Rule 901 and its state analogues, photographs are typically admitted as demonstrative evidence to illustrate testimony. When used purely as demonstrative evidence, legal issues regarding authentication and chain of custody are somewhat relaxed so long as a competent witness can testify that the photograph fairly and accurately depicts the scene about which he or she is testifying. In these situations, it is generally not necessary that the authenticating witness be the same as the photographer or as a competent person who observed the making of the photograph. Videos are typically authenticated in the same manner as a still photograph. I will illustrate some portions of this discussion using a series of decisions by the Alaska Supreme Court whose evidentiary rules and interpretations typically closely follow majority federal views.

Under Evidence Rules 1001 through 1004, an original document (including a photograph) is required to prove the truth of the facts for which any document is offered. However, over many years, the definition of an original has been greatly expanded, particularly with regard to electronically stored information, and the requirement for an original is honored more in the breach than to the letter. Indeed, duplicates, including electronically made prints or digitally identical electronic file duplicates, are typically admissible to the same degree as an original document unless admitting the duplicate would prove inaccurate or unfair.

Authentication requirements are somewhat stiffened where there is a strong argument that a photograph does not accurately reflect the scene or that the use of a duplicate is inaccurate or unfair. Generally, a trial courts admission or exclusion of proffered photographs is reviewed under an abuse of discretion standard. Common sense, a reasonably objective evaluation of your intended use of the proposed photographic evidence and some trial experience are usually an adequate guide to the allowable demonstrative or evidentiary uses of a photograph. A trier of facts evaluation of non-demeanor evidence like photographs (as contrasted with live witness testimony) is theoretically subject to a less deferential standard of appellate review but this more stringent approach is often not strictly applied. However, when photographs are to be used as the basis for expert witness testimony or to actually prove the existence of an allegedly depicted condition, then they will be held to a higher standard and you will need to be much more cognizant of subtle technical and photographic parameters.

Admissibility of photographs varies, depending upon the evidentiary context and the purpose for which a photograph is offered. Courts are usually willing to tolerate some inaccuracies in a photograph so long as these are explained to the trier of fact so that they may be taken into account. However, where a photograph is used as a basis for establishing critical ultimate facts or as the basis for expert testimony, courts are less willing to overlook major gaps. For example, the Alaska Supreme Court, in Kaps Transport, Inc. v. Henry , stated the majority rule:

“That there are inaccuracies or defects in the photograph does not necessarily render it inadmissible as long as there is an explanation of these imperfections so that the jury is not misled.”

However, in Kaps, the Alaska Supreme Court excluded the photograph in question because the defendants accident reconstruction expert was attempting to use the photograph, in conjunction with a reconstructive technique known as perspective analysis, to establish how far across the highway centerline the Plaintiff had alleged strayed. In order to use a photograph as a basis for perspective analysis reconstruction, the focal length used to take the photograph and the conditions under which the photograph was taken must be known with a substantial degree of precision, which the Defendant could not show. In this case, the photograph was to be used to provide actual data about the accident scene rather than merely illustrating the area. Hence, it was subject to a more rigorous authentication process which it ultimately failed.

Similarly, where a photograph is offered to prove that some condition did not exist, a court will look closely at the time frame when a photograph was purportedly taken but still use a common sense case by case analysis. For example, if a photograph is offered of criminal defendants hands purporting to show that there was no gunshot residue, and then the offering party must establish that the photograph was taken at a time when gunshot residue would still be apparent. Absent that showing, the photograph may not be admitted. On the other hand, where direct evidence of a condition provided by an otherwise authenticated photograph is only one link in a logical fact structure, the photograph will likely be admitted to prove the depicted condition.

In cases where there is sufficient countervailing testimony, the admission of photographs with a shaky time frame may be harmless error. For example, the Alaska Supreme Court refused to reverse a verdict despite the trial courts admission into evidence of the defendant highway departments arguably inaccurate photographs that purported to show that an accident site was well-sanded despite the Plaintiffs contrary contentions. The time frame when these photographs were taken, relative to the time of the accident, was never precisely established but was sufficient contrary testimonial evidence by the investigating State Troopers actually at the accident establishing that photographs were inaccurate and that the road was poorly sanded. Hence, admitting these allegedly misleading photographs with an imprecise time frame was harmless error.

Video and Audio

One of the questions we are asked more often than any other is ‘can you tell me if this audio or video recording has been edited? It is always best to preserve the original recording to remove all doubt about the genuineness of the recording. In other words, the original evidence is only original if it has not been copied, or cloned for analysis.

With today’s advanced audio and video editing software being readily available, it is becoming easier and easier to edit or tamper with forensic evidence. Establishing the authenticity of audio or video is extremely important when presenting admissible evidence to the court. Primeau Forensics’ examiners continue their education yearly in both audio and video forensics.

Audio authentication process:

(1) Evidence marking for later identification by the forensic expert;

(2) Physical inspection of the evidence for specific characteristics that are noted by the expert;

(3) Digital data imaging and playback optimization;

(4) Critical listening to the audio for auditory anomalies;

(5) High resolution waveform analysis, visual inspection of sound wave formation;

(6) Narrow band spectrum analysis;

(7) Spectrographic analysis;

(8) Digital data analysis;

(9) Miscellaneous analysis based on the investigation thus far;

(10) Work notes and work product; and

(11) Creating a forensic report.

Video authentication has similarities to audio authentication in that it is always best to preserve the original recording to remove all doubt about genuineness. When the original recording is not available, the video forensic expert has to investigate several aspects of the video recording, including the metadata and hex information, to determine if a video recording has been edited. Much of the video authentication process is scientific. The video forensic expert not only investigates the elements of the video recording itself, but also investigates the way the video recording surfaced, how it was created and the type of equipment that was used to create the video recording in question.

Video authentication process:

(1) Establish that of the quality of the recording in question is acceptable and workable;

(2) Evidence marking for later identification by the forensic expert;

(3) Physical inspection of the evidence for specific characteristics that are noted by the expert;

(4) Digital data imaging and playback optimization;

(5) Examine the electronically recorded information on the digital or analogue video signal;

(6) Vector and Waveform scope analysis to detect anomalies;

(7) Miscellaneous analysis based on the investigation thus far;

(8) Work notes and work product; and

(9) Creating a forensic report.

Authenticating Emails Through Witness or Expert Testimony

Luckily, if stipulations or admissions are not possible, there are nearly limitless ways an email can be authenticated under Federal Rule of Evidence 901 (e.g., testimony by a witness with knowledge, comparison by an expert or trier of fact, distinctive characteristics, public records, evidence about a process or system, and methods provided by statute or rule). Further, the standard for authentication is low.

Anticipating and Minimizing Objections

Effective Presentation of Email Evidence in Family Court

You may think an email message is the “smoking gun” in your case, and you’d like to use it as evidence. But legally, it isn’t always as easy as bringing a printed-out copy of an important email to court. The rules of evidence may require that the email be authenticated and to be introduced in a way that doesn’t violate the general prohibition on hearsay evidence. With these concerns in mind, here are a few tips on how to use email as evidence:

(1) Make Hard Copies, Backups

Although it’s fairly easy to retrieve an email that you want to use as evidence, you should make a hard copy and a backup digital copy of that email just in case. This is particularly important if the message you want as evidence lies on your work email, which your employer likely has legal access to.

(2) Authenticate or Ask for a Stipulation

You may know or believe that an email is an authentic representation of a person or company’s words to you or a third party, but courts often demand some form of proof that an email is genuine. Some notarized or government documents are self-authenticating, but emails often require some proof of its authenticity. This can be provided by:

Witnesses. Email senders or receivers can testify at trial to the email’s authenticity.
Signature blocks. Business signature blocks in emails may count as self-authenticating trade inscriptions for purposes of federal evidence.
Email addresses. The sender’s email address may be sufficient to prove that an email was sent from an entity if the address bears that company’s and employee’s name.

You may also ask the other party to stipulate to an email’s authenticity.

(3) Is Your Email Evidence Hearsay?

Without a hearsay exception, an email cannot be offered to prove the truth of what is contained in its text. However, if it was sent by the opposing party, or an agent of that party, it is likely admissible. Work emails may also be excepted from the hearsay rule as “business records.” However, just because an email was sent at work doesn’t mean it’s automatically a business record. Workplace chatter and emails not sent in the regular course of business may still be considered hearsay.

How to Block the Opposing Party’s Retrieval and Admission of Email Evidence
Blocking the Opposing Party’s Retrieval of Email Evidence

A spouse may have a right access to an external hard drive or flash drive used in the home, but not if such items are discoverable materials under Fed.R.Civ.P. 34. If planning to block the opposing party’s evidence, you still must make sure it is relevant, authentic, non-hearsay or meeting an exception and that its probative value outweighs any prejudice.

Client Control

From this attorney’s perspective, what makes a good client? Below are some qualities that can attorneys can help explain to their clients:

Try to be organized. When you are meeting with your attorney, write down your questions in advance. Try to have an agenda, and make sure that your attorney answers your questions.

Do not call or e-mail continually because this is how your case will start spinning out of control from a cost standpoint. Most attorneys charge by the hour, and we are not only charging for phone calls, but also for e-mails, because e-mail has now become the preferred method of communication. I find that I have almost no snail-mail in my cases, and everything is done electronically. Save up your questions. If you are going to communicate by e-mail or phone, have several questions at once, rather than doing one now, one later, and having a bombardment of e-mails back and forth on a daily basis, which happens too frequently in cases that are spinning out of control.

Remember that an attorney is here to assist you and help you through the legal system. Do not be afraid to feel lost and bewildered, but make sure that you and your attorney are communicating. A good client will ask questions, but not too many.

Have reasonable expectations. Be realistic. A good attorney will help you stay reality oriented. Listen to your attorney. Listen to legal advice. Remember that you are trying to resolve issues, not have a war.

Try to be reasonable. Don’t ask for something that you are not going get. Bear in mind that in negotiations, you should always ask for more than you expect to receive, but don’t be off the wall. Have realistic expectations regarding custody and parenting time. Try to be realistic about child support and spousal support. Try to be realistic about property division.

Too many clients want the house no matter what. Yes, there is often an emotional attachment, but in many cases, especially if the economics make no sense, it is better to not keep the house. Sometimes it is better to sell it; sometimes it’s better for the spouse who has a greater income to keep it. These are all things to consider.

Have a game plan and an agenda, but be prepared to be flexible. Remember that life happens, and if things didn’t go wrong in your life, you wouldn’t be getting a divorce in the first place.

Work with a therapist. This is important, because often there are anger issues or feelings of loss, or resentment. Your attorney is not your therapist.

Try to have your attorney explain the legal system to you so you know what to expect.

It is important to assist your attorney as far as providing documents and information, because the more helpful you can be, the more cost effective your attorney can be, and the lower your attorney fees will be.

Don’t hesitate to discuss fees, to ask about how much the representation will cost, and do not hesitate to request a monthly billing statement so you know exactly what is going on with regard to billings in your case.

Last but not least, remember that divorce is a process, a transition, albeit a painful one, but it is a step that you will get through. It might be wise to tell clients to think of a 100-yard dash. That is not a divorce. A divorce is more like a marathon, and if you start understanding that, you will get through it. You will also be a better client, and you will understand that there is light at the end of the tunnel.

Motion in Limine to Exclude Emails

When you make a motion in limine, you give the judge a chance to derive the benefit of your extensive research and analysis. Even if the judge doesn’t rule on the issue before trial, he or she has been sensitized to it and will be listening to the trial with the issue in the back of his or her mind. Thus, if the issue does arise during the trial, the judge will be prepared to make a well-reasoned ruling that is likely to withstand appellate review.

To be effective, make sure that your motion in limine papers:

· Describe briefly the evidence sought to be admitted or excluded;

· Argue factually why the evidence should be admitted or excluded and why the court needs to rule before the evidence is offered;

· Explain legally why the evidence is properly admitted or excluded; and

· Cite appropriate legal authority.

There is no statutorily-required form for motion in limine, but local rules may require them to be written and may prescribe the format and contents. If you make the motion orally, be sure to have the court reporter present. But, it’s much better to make a written motion in limine.

If a motion in limine is successful and the court agrees to exclude the evidence, the excluded evidence may neither be introduced nor be referred to at trial (including in an opening statement). Keep your eye on the opposing side to make sure he or she does not violate the exclusion order, which could result in a mistrial or a contempt citation.

If you are unsuccessful in your efforts to exclude evidence, be sure that the motion and the court’s ruling (including grounds for it) are made on the record, or put on the record, to preserve your objection for appeal.

Challenging the Admission of Email Evidence

i. Arguing Against Authenticity

The first hurdle is authenticating an email. During summary judgment, an attorney will generally not need to submit authenticating evidence until an email’s authentication is challenged. However, once challenged, an attorney should be prepared to authenticate the emails or risk having them stricken from the record. During trial, evidentiary objections are made orally and a practitioner must be prepared to respond immediately. If the attorney has made no prior arrangements, as discussed below, the attorney must be ready with appropriate witnesses or alternative arguments to authenticate the emails.

Authentication becomes even more problematic when attempting to authenticate an email in a chain of emails. In SDS Korea Co., Ltd. v. SDS USA, Inc. , Mr. Reynolds received an email from Mr. Song. Mr. Reynolds then forwarded this email to Mr. Adams. The court found that “although Mr. Adams can testify he received an email from David Reynolds, as that matter is within Mr. Adams’s personal knowledge . . . Mr. Adams has not established he is in a position to authenticate Mr. Song’s email. . . .” The court then struck the email string from evidence. This case is a good example of the need to authenticate each link in a chain of emails. Failure to do so can result in key documents being struck from the evidence.

It is always best to prepare early for authenticity objections to emails. An attorney should first attempt to stipulate to the admission of important emails. In most cases, both sides will have emails they want to admit and an agreeable stipulation can be reached. A good practice in federal court is to raise the issue of authenticating emails during the Rule 26(f) conference. It may be efficient to establish a process for authenticating emails that each party desires to produce.

Emails can also be authenticated through requests for admission. Rule 36(a)(1)(B) allows a party to serve written requests to admit the genuineness of any described document. This includes emails. Luckily, if stipulations or admissions are not possible, there are nearly limitless ways an email can be authenticated under Federal Rule of Evidence 901 (e.g., testimony by a witness with knowledge, comparison by an expert or trier of fact, distinctive characteristics, public records, evidence about a process or system, and methods provided by statute or rule). Further, the standard for authentication is low.

The most effective way of authenticating an email is to depose the drafter or call him or her at trial. If that is not possible, often emails can be self-authenticated under Rule 902(7) (“An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.”). This would be the case if the email contains a signature block with the company logo or the person’s electronic signature. In the worst-case scenario, the practitioner can make the argument that the email address itself or the person’s writing style authenticates the email.

ii. Unlawful Interception

The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act, commonly lumped together as the Electronic Communications Privacy Act, or ECPA, are federal laws that prohibit certain types of electronic eavesdropping. Congress enacted these laws in 1986 to update the Federal Wiretap Act of 1968. The original ban on wiretapping protected a person’s privacy while using telephone lines. The 1968 legislation did not envision the use of such modes of communication as electronic messages, Internet chat rooms, text messaging, cellular telephones, Internet bulletin boards, or voice over IP. Since the ECPA was enacted, it has also been updated to reflect new technology.

The ECPA created penalties for any person who intentionally: intercepts, uses or discloses any wire or oral communication by using any electronic, mechanical, or other device, or without authority accesses a wire or electronic communication while in storage. A distinction is made between the interception of electronic communications and mere access to communications that are in storage. Congress intended to provide stiffer penalties for interception than for accessing communications in storage.

There’s a distinction between interception and storage — and it matters. The statute defines interception as the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device. Electronic storage is any temporary, immediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and any storage of such communication by an electronic communication service for purposes of backup protection of such communication.

Consent is another principle to consider when deciding whether the ECPA applies. The ECPA only prohibits “unauthorized” use, disclosure, or interception. If your spouse has routinely given you his or her email account passwords and allowed you to use them, he or she has authorized you to find what you will. The courts will decide this issue of consent on a case-by-case basis, and it is not necessary for consent to be explicit. Implied consent can be found when the surrounding circumstances are taken into account. In light of the complexity of this area of the law, it is advisable for you to consult an attorney before taking any action that might be considered in violation of the ECPA.

Case Law and Sample Scenarios of Email Evidence in Divorce Litigation

The following are additional examples of cases wherein the courts dealt with email evidence in divorce litigation.

Gurevich v Gurevich, (2009 NY Slip Op 29191): The main issue in this case was whether a party in a matrimonial action has the right to access and utilize the e-mail account of an estranged spouse whom she no longer resided with and obtained copies of e-mails in his e-mail account. The parties had been married for 16 years before they separated and both the wife and the husband had given each other access to each other’s email accounts along with passwords for those accounts. After they had separated, the wife changed her email password, however the husband did not and did not tell the wife she was not allowed to access his emails. The court held that because the emails were simply stored on the computer and were not in transit from one person to another, they were not protected by the statutes in question. Therefore, the court found the emails to be admissible at trial.

White v. White, 781 A.2d 85, 87 (N.J.Super.Ch. 2001): The wife in White sought to use certain emails retrieved off of the family computer as evidence in a custody case. The husband argued that admission of the documents violated New Jersey’s state wiretap act, plus an alleged common-law right of privacy. The wife obtained the emails from the husband’s account on America Online (“AOL”). AOL’s software automatically saved all of the email received by the husband’s account in a single file stored on the family computer, known as a Personal Filing Cabinet (“PFC”). The husband was unaware that this automatic saving of email was occurring. The court held that unless the user affirmatively elects to protect the PFC with a password, it can be accessed by anyone using the computer. Since the husband did not even know of the PFC’s existence, he did not elect password protection. The court also held that any accessing of the husband’s email by the wife was not “without authorization.” The computer which stored the husband’s PFC was clearly accessible to both parties and this gave the wife a prima facie right to access any information stored on the computer. The court suggested that the husband could restrict her rights by protecting specific files with a password.

Bailey v. Bailey, 2008 WL 324156 (E.D. Mich. 2008): Husband became suspicious of wife’s activities and installed keystroke logging software on both home computers. Using the software, husband obtained wife’s e-mail and instant-messaging passwords, which he used to access wife’s email and learned of her extra-marital activities. The court found that the husband obtained the emails after they had actually been sent, not contemporaneously with their transmission (husband read them after the wife had already opened them), and as a result, they could not be excluded under the Wiretap Act because it did not apply.

Miller v. Meyers, 766 F.Supp.2d 919 (W.D. Ark. 2011): Husband admittedly obtained access to his then-wife’s email and other online accounts and monitored his then-wife’s activity prior to the commencement of divorce proceedings. He was able to access password-protected information by installing a key-logger program onto the computer primarily used by his wife. During the divorce proceedings and again during a later custody proceeding, Husband used certain information he obtained from wife’s accounts. The court here found Husband’s use of keystroke logger to obtain credentials to later access wife’s password-protected e-mail accounts was a violation of SCA and Arkansas’ computer trespass statute.

Evans v. Evans, 610 S.E.2d 264, 269 (N.C. App. 2005): During a divorce and custody case, the wife claimed the trial court committed reversible error in overruling timely and continuing objections to the admission into evidence of intercepted sexually explicit e-mails between her and Dr. Mark Johnson, a Chapel Hill physician. She claimed the e-mails, private communications received from Dr. Johnson, were illegally intercepted by her husband. Here, the court determined that interception under the ECPA must occur contemporaneously with transmission. In this case, the e-mails were stored on, and recovered from, the hard drive of the family computer. The e-mails were not intercepted at the time of transmission. Therefore, the court held the trial court did not admit the evidence in violation of the ECPA.

Jennings v. Jennings, 697 S.E.2d 671 (S.C. App. 2010): In this case, a wife confronted her husband who confessed he had fallen in love with someone else and admitted the two had been corresponding via e-mail for some time. The wife confided this situation to her daughter-in-law, who had previously worked for the husband and knew he maintained a personal Yahoo! e-mail account. The daughter-in-law accessed the husband’s account by guessing the correct answers to his security questions and read the e-mails exchanged between the husband and his affair. She then printed out copies of the incriminating emails and gave them to the wife’s attorney to use in the divorce proceedings. The Husband then filed suit against the daughter-in-law. The court found for the daughter-in-law holding that because the husband left the single copies of his e-mails on the Yahoo! server and did not download them or save another copy of them in any other location, this did not constitute storing them for backup protection under the Act. The court emphasized that although they rejected the contention that daughter-in-law’s actions gave rise to a claim under the SCA, it should in no way be read as condoning her behavior. Instead, the court only held that she was not liable under the SCA because the e-mails in question did not meet the definition of “electronic storage” under the Act.

Parker v. Coletti, 2013 Pa. Dist. & Cnty. Dec. LEXIS 72 (Pa. County Ct. 2013).

Rosenberg v. Rosenberg, No. C4-01-1148, 2002 WL 15649 (Minn. Ct. App. Jan. 8, 2002).

Byrne v. Byrne, 650 N.Y.S.2d 499, 500 (Sup. Ct. 1996).

Stafford v. Stafford, 641 A.2d 348, 350 (Vt. 1993).

State v. Appleby, 2002 WL 1613716 (Del. Super. Ct. 2002).

Goodman v. Praxair Services, Inc., 632 F. Supp. 2d 494 (D. Md. 2009).

Kashi, Joe, “Authenticating Digital Photographs as Evidence: A Practice Approach Using JPEG Metadata”, ABA Law Practice Today, June 2006.

Id.

2009 WL 2371507 (E.D.Va.).

Hurtado v. U.S., 410 U.S. 578 (1973).

Evans v. Evans, 610 S.E.2d 264, 271 (N.C. Ct. App. 2005).

Id. (citing Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003).

See, O’Brien v. O’Brien, 899 So.2d 1133, 1138 (Fla. Dist. Ct. App. 2005).

Gurevich v. Gurevich, 24 Misc. 3d 808, 886 N.Y.S.2d 558 (Sup. Ct. 2009).

Id.

Id. at 560.

Id. at 562.

Id.

Newman, Zachary G. “The Reliability, Admissibility, and Power of Electronic Evidence” American Bar Association, 25 Jan. 2011.

United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011).

Id.

Id.

Griffin v. Maryland, 419 Md. 343 (Md. Ct. App. 2011).

Id.

People v. Lenihan, 911 N.Y.S.2d 588 (N.Y. Sup. Ct. 2010).

Id.

Commonwealth v. Williams, 926 N.E.2d 1162 (Ma 2010).

Id.

People v. Clevenstine,68 A.D.3d 1448 (N.Y. App. Div. 2009).

Id.

Network Alliance Group L.L.C. v. Cable & Wireless USA, Inc., No. CIV 02-644DWFAJB, 2002 WL 1205734, at *1 & n.2 (D. Minn. May 31, 2002).

Id.

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012).

Id.

Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012).

Campbell, 382 S.W.3d at 550.

United States v. Ferber, 966 F. Supp. 90, 98 (D. Mass. 1997).

Newman, Zachary G. “The reliability, Admissibility, and Power of Electronic Evidence” American Bar Association, 25 Jan, 2011.

Hannon, Michael J., “An Increasingly Important Requirement: Authentication of Digital Evidence”, Journal of the Missouri Bar, Vol. 70, No. 6, (November -December, 2014).

MO. Evidence Restated, Preface (MoBar 2012).

Hannon, Michael J., “An Increasingly Important Requirement: Authentication of Digital Evidence”, Journal of the Missouri Bar, Vol. 70, No. 6, (November -December, 2014).

Id.

Id.

Myer v. Christopher, 75 S.W. 750 (1903).

Bond v. R.R. Co., 363 S.W.2d 1 (Mo. 1962).

Pendleton, Alan. “Admissibility of Electronic Evidence: A New Evidentiary Frontier”

Billings, Charles. “Missouri Bench Book”, Missouri Municipal and Associate Circuit Judges Association, 2010.

Id.

O’Donnell, Beatrice. “Admissibility of Emails: Getting Then In and Keeping Them Out” Pennsylvania Law Weekly, 11 June, 2007.

O’Donnell, Beatrice. “Authenticating Email Discovery as Evidence” Atkinson Baker, 11 Dec. 2007.

Id.

Firehouse Restaurant Group, Inc. v. Scurmont LLC, C/A No. 4:09-cv-00618-RBH, 2011 WL 3555704 (D. S.C. Aug. 11, 2011).

Id.

United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000).

LaLonde v. LaLonde, No. 2009-CA-002279-MR, 2011 WL 832465 (Ky. Ct. App. Feb. 25, 2011).

Id.

NV, 2009 U.S. Dist. LEXIS 27406 (S.S. Tex. Mar.31, 2009).

Id.

United States v. Clayton, 643 F.2d 1071, 1074 (C.A. 5, 1981.

Saturn Manufacturing, Inc. V. Williams Patent Crusher and Pulverizer Company, 713 F.2d 1347, 1357 (C.A. 8, 1983).

572 P.2d 72 (Alaska, 1977).

Riksem v. Hollister, 96 Idaho 15, 523 P.2d 1361 (1974); Southeastern Engineering & Mfg. Co. v. Lyda, 100 Ga.App. 208, 110 S.E.2d 550 (1959).

See, e.g., McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985). (“All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be.”).

Snider, Brett. “Learn How-To: Using Email as Evidence” FindLaw, 19 Aug.2014.

Gornbein, Henry. “What Makes A Good Divorce Client” Huffington Post, 16 Feb. 2012.

See, e.g., San Francisco Ct R 6.1; Los Angeles Ct R 8.92.

Brook, Julie. ” Exclude Evidence Early: Using an In Limine Motion” CEB blog, 15 Dec. 2010.

See, e.g., Bouriez v. Carnegie Mellon Univ., No. CIV.A. 02-2104, 2005 WL 2106582 (W.D. Pa. Aug. 26, 2005) (The court struck certain of the defendant’s exhibits to a motion for summary judgment because the defendant did not properly authenticate them in the face of a challenge to their authenticity.).

732 F. Supp. 2d 1062 (S.D. Cal. 2010).

Id. at 1073.

See, e.g., Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 553 (D. Md. 2007) (When discussing authenticating electronic discovery, the court found that authentication “by taking advantage of Fed. R. Civ. P. 36” was appropriate.)

See, e.g., McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985) (“All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be.”).

“Federal Laws on Spousal Spying: Electronic Communications Privacy Act”, Rosen Law Firm, North Carolina Divorce.

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