Email & Text Message Evidence in Litigation

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Email & Text Message Evidence in Litigation

Email & Text Message Evidence in Litigation

Kirk C. Stange *

  • Special thanks to Alicia Kapolis and Primrose Mungwari for helping prepare these materials.

  1. Court Rules

Many computer and electronic discovery issues are covered by the Federal Rules of Civil Procedure. However, it is also vital to check state and local rules of civil procedure. Below are various applicable Federal Rules of Civil Procedure:

  1. Federal Rules of Civil Procedure

Fed. R. Civ. P. 1001(1) – Writings and recordings include computers and photographic systems.

Fed. R. Civ. P. 26(a)(1)(C)– Obligates parties to provide opponents with copies of or descriptions of documents, data compilations, and tangible things in a party’s possession, custody, or control.

Fed. R. Civ. P. 34 – Permits a party to serve on another party a request to produce data compilations (subpoena). This can include word processing files, spreadsheet files, investment data or databases, calendars, browser histories, contact lists, digital photographs, email, and social media. These and other miscellaneous information can be found on hard drives, floppy disks, optical disks, flash drives, network storage, remote storage, cell and smartphones and virtually any electronic source.

  1. Missouri Court Rules

In Missouri, there is not a lot of guidance provided in our Rules of Civil

Procedure. However, Rule 58.01(a) allows for the inspection and production of documents, which would seem to broadly cover email and text message evidence. Rule 58.01 states the following:

(a) Scope. Any party may serve on any other party a request to:

(1) Produce and permit the party making the request, or someone acting on the requesting party’s behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phonograph records, electronic records, and other data compilations from which information can be obtained, translated, if necessary, by the requesting party through detection devices into reasonably usable form) or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 56.01(b) and that are in the possession, custody or control of the party upon whom the request is served; (emphasis added).

Ultimately, this means that litigants certainly can and should where relevant

request text and email evidence through the use of a Request for Production. It is certainly appropriate as well to inquire about text and email evidence through written Interrogatories. Further, a properly obtained text or email could be attached to a Request for Admission where the other party is asked to admit or deny the authenticity of the communication. It is certainly possible as well to make a request pursuant to Rule 58.01 or Federal Rule of Civil Procedure 34 for a forensic computer expert to inspect the hard drive of a computer, smartphone or tablet for relevant text or email evidence (provided that safeguards are put into play, where appropriate, for the protection of privileged and confidential communication through a special master or otherwise).

  1. Email Evidence

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 the hard drive of the 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.

In White v. White, the wife hired a computer expert to find and copy her husband’s e-mails that were stored on the hard drive of the computer in the family home. The court held that the wife did not violate the SCA, because it determined the e-mail was not in electronic storage when it was accessed because the computer hard drive was not electronic storage. They also determined that the access was not without authorization.

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 retain the data. Thus, it may be worth the attempt.

Further, it is vitally important that any email evidence is obtained in an appropriate and ethical manner. In, In re: Joel B. Eisenstein, which was a litigated divorce, an attorney received emails contained privileged and confidential information after his client hacked into the opposing parties’ personal email account without permission. In particular, Husband obtained and delivered to his attorney Wife’s most current payroll documents and a list of direct examination questions e-mailed to her in preparation for trial. Attorney did not “immediately disclose the receipt of the information to opposing counsel,” but instead improperly obtained payroll information during a pre-trial settlement conference. Attorney also sent a “[t]hreatening” email to opposing counsel to “avoid an ethics complaint.” The OCDC filed an Information charging the attorney with violating Rules 4-4.4(a) for using methods of obtaining evidence in violation of the rights of a third person; 4-8.4(c) and (d) for reviewing and using improperly obtained evidence; and 4-3.4(a) for unlawfully concealing a document having evidentiary value. The attorney admitted that he had viewed the information and that he did not immediately disclose his receipt of this information to the opposing party. The Missouri Supreme Court held that this was misconduct warranted such suspension of his law license, under Standards 6.1 and 6.12., for a minimum period of six months.

    1. 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 would not 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.

    1. Email Attachments

A court might deem attachments to authenticated emails are themselves authenticated. However, it is important to not take this for granted at the same time. 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.

    1. Images/Photos

Images and photos are often attached to email and text communication and can present admissibility challenges. 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 defendant’s 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.

    1. Video and Audio

Videos and photos can also often be attached to email and text communication and can, likewise, present admissibility challenges. 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) Narrowband 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.

  1. Cell Phones and Text Messages

In the realm of cell phones and tablets lurk two significant federal statutes: Title III of the Omnibus Crime Control Act 1968-2522 and the Electronic Communications Privacy Act of 1986. Together, they prohibit interception of oral and electronic communication without the consent of at least one party to the communication. These apply to traditional telephones, wireless phones, and cell phones. As a practical note, secretly recorded oral communications are almost always excluded at trial, whereas electronic communications are almost never automatically excluded. For example, in Conner v. Tate, a woman had a cause of action against her lover’s wife who was intercepting phone conversations and recording voicemail messages.

The most common application for cell phones in a divorce matter is to subpoena the carrier for itemized billing, but that is changing. Text messages or Short Message Service (SMS) messages may be worth tracking down because a lot may be said in the 224 characters that some phones now allow. SMS messages may also transmit photos, sounds, and videos. As many people now communicate far more frequently through text message than phone calls, these may provide an excellent source of information when it comes to proving the behavior of the opposing party.

Outside of intercepting telephone conversations or voicemails, smartphone data and tablets are akin to a computer.

  1. Subpoenaing Cell Phone and Email Records

Typically, subpoenaing cell phone records through providers is much easier than subpoenaing social media or email providers. This is because unlike social media websites, cell phone providers, at least more likely than not, do business in your state. Therefore, you simply serve a subpoena on a registered agent if they have one within the state. If they do not have a registered agent, physically serve the subpoena on a company store. Like any subpoena, it must be calculated to produce relevant evidence, and remember, if you decide to subpoena the provider, you are unlikely to receive the content of any text message conversations. If text messages or emails are what you seek, you are likely better off trying to get them from the opposing party via appropriate discovery mechanisms. However, you might be able to subpoena email records from a business located in your state.

The Stored Communications Act (SCA) imposes different levels of restrictions and protections, depending on whether the service provider at issue is providing electronic communication services or remote computing services. An “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications. And, with certain exceptions, the SCA prohibits “a person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.” For this restriction to apply, it must be in “electronic storage,” and it is limited to the following scenarios:

  • Any temporary, intermediate 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.

Thus, the SCA only prohibits an electronic communications service from knowingly divulging communications that are either in temporary storage (such as a message waiting to be delivered) or kept for the purposes of backup protection.

On the other hand, the restrictions on “remote computing service providers,” are much broader and not limited to communications kept in temporary storage or for backup purposes. The Act defines “remote computing services” as a service which provides the public with computer storage or processing services by means of an electronic communications system. The SCA imposes the following restriction on such services:

  • A person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service–

    1. solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.

Several courts disagree when to classify certain types of communications with respect to these two categories. As a general rule of thumb, however, it is safe to assume that if a message has not been opened by its recipient, it operates as part of an electronic communication service. If the recipient has opened and retained the message, however, it operates as a remote computing service.

Thus, in order to work with phone companies (and social media companies), you should always first check that company’s website and/or terms of service to understand their approach to responding to third-party discovery requests. Depending on a company’s terms of service and the extent of SCA protection, a service provider may be able to quash even a subpoena for relevant information. Therefore, it is best to try and first procure voluntary consent, since the SCA stipulates that a service provider may divulge communications where the originator or recipient of the communication gives their consent. Notice that the consent of the originator or recipient is required-meaning if consent is denied from one, you may be able to procure it from the other. Once this consent is obtained, there should be no trouble in procuring the relevant data from the service provider. Otherwise, attempt to seek a court order compelling the consent or a subpoena.

Keep in mind that negotiating for consent takes time and that digital information may be lost before consent can be obtained. Therefore, it is important you put the service provider on notice that you will be seeking their voluntary or compelled consent to obtain the sought-after information and request that they preserve that information for the purposes of litigation. Afterward, follow up with them and seek assurance that the information is being preserved, and offer to compensate them for any reasonable expenses incurred in preserving that information. Note that most jurisdictions hold that such a request does not create a real duty in a third-party to preserve any information. That is why it is extra important that you offer the service provider as much accommodation as you can afford to ensure their cooperation. One way around would be to obtain a preservation subpoena-but that would require that your court have jurisdiction over the non-party. However, the jurisdictional requirement harshly limits the usefulness of this strategy.

Once a subpoena has been issued, perhaps the most common defense is that it violates the rights to privacy. In State v. Clampitt, it was held that individuals have a reasonable expectation of privacy in their text messages and anything else on their phones including emails. Unlawful access to cell logs or text messages breaches that right to privacy under the Fourth Amendment, and that getting such records requires a search warrant. In this case, the police sought to get text message logs via investigative subpoenas that did not specify which particular recipient messages were needed, and which were extended each time the time period specified lapsed. This meant in effect police went through his all incoming and outgoing text messages searching for an admission or something to use against him, and if they found none, applied for an extension of the dates in the hope of getting such information. This was held to be a violation of, inter alia, his Fourth Amendment rights.

Consistent also with the ruling in Clampitt is United States v. Warshak, which spoke specifically on email messages, and held emails were similar to telephone calls and letters and, therefore, require the same protections traditionally afforded to telephone and letters under the Fourth Amendment. Third parties, such as service providers who have the capacity to monitor these communications are not compelled to hand over email and text messages without a warrant showing probable cause.

  1. Admissibility of Email and Text Messages

Generally, courts have a broad discretion on ruling on admission or exclusion of any evidence at trial including email and text messages. Electronic messages, particularly emails give rise to the difficulty of authenticating their actual author; even if they have been sent from one’s email address. This is because it is possible that anyone can send an email from someone else’s email address. Additional proof is therefore needed to establish authorship.

In Missouri, foundation requirements for the admissibility of electronic messages were laid out in State v. Harris. The court stated that there should not be assumed authenticity of the origin of the message, based on either ownership or possession of the phone. The standard is this:

[T]he proponent of such evidence must present some proof that the message[s] were actually authored by the person who allegedly sent them.

This rule was also applied in State v. Francis where the court examined the admissibility of non-testifying third-party text messages sent to Appellants phone, and text messages sent allegedly by the Appellant from that phone. The Appeals Court held there must be evidence that the messages were actually authored by the person alleged to have sent them. This includes admissions by the person who sent them or circumstantial evidence such as testimony by the recipient that they have in the past received messages or calls from the alleged author from that number. There could also be something which shows the author wrote the message, such as a personalized signature. Mere ownership of the phone or possession, does not presume authorship of all outgoing messages. Further, for non-testifying third party texts (incoming texts), which are ordinarily regarded as hearsay, to be admissible, they must fall under any identified exception to the hearsay rule. Such evidence is also only admissible to give contextual meaning to the reply.

The Missouri Court of Appeals, Eastern District in T.R.P v. B.B. , recently (June 2018) confirmed the foundational requirements as stated in Harris on the authorship of the message, and highlighted that evidence of authorship can be circumstantial and need not be onerous. In this case, Respondent testified that the Appellant in addition to sending text messages from that number had also previously called and identified himself and this was enough to determine that Appellant had indeed sent the text message.

  1. In What Form to Submit the Data

Recently, courts have not had great difficulty in accepting the fact that a printout or a screen shot is an accurate representation of various online communications. In United States v. Catraban, the defendant contended that the computer printouts used against him were inaccurate, and he was able to show the inaccuracies in the data. Despite this, the court concluded the discrepancies merely went to the weight of the evidence as opposed to the issue of authentication. One court has even stated that the computer printouts “have a prima facie aura of reliability.” Increasingly, the only bar to admission of ESI is identifying the author and/or finding the applicable hearsay exceptions.

Similarly, in United States v. Tank, it was held that chat room transcripts and printouts, much like e-mails, could be authenticated by the testimony of one of the participants in the online chat. However, the level of proof to authenticate ESI varies from jurisdiction to jurisdiction. In People v. Charlery, there was a detective who retrieved and printed Hotmail messages. He testified as to the process of retrieval and this satisfied the authenticity requirement. Other jurisdictions will require more strenuous proof on the reliability of the computer processing system. Some jurisdictions have allowed distinctive characteristics to authenticate ESI, such as profile pictures on social media accounts.

  1. Rules of Evidence

A common objection to ESI evidence is found under Fed. R. Evid. 901 that the material is not authentic. The attorney should then proceed to various authentication techniques. These techniques include asking the owner or creator of the account if they sent the questioned content under Fed. R. Evid. 901(b)(1); formulating requests for admission with printout of the desired communication attached; third, you can bring in an expert to testify under 901(b)(3) or maybe even 901(b)(0); fourth, you can use distinctive characteristics under 901(b)(4); and finally, you could potentially use conditional relevancy under Fed. R. Evid. 104(a) and (b). Until there is a commonly accepted method of authenticating electronic evidence, the practitioner should be prepared to meet the most exacting standards.

Specifically, e-mails can be authenticated by an admission secured by the author or the sender of the communication that they drafted or sent the communication. It will be given more weight to authenticity if a recipient or non-recipient of the communication had knowledge of it. Additionally, a witness with the knowledge of how the communication carrier sends and receives the information could help authenticate it, as well as information about how it might be stored.

Chat room communications or transcripts may be authenticated if the proponent demonstrates that: (1) the alleged sender had access to the appropriate computer; (2) the chats were conducted at the same time as the person in question admitted to communicate; (3) the chats were being conducted using a screen name created by the person in question; and (4) the content of the chats were similar to what the person in question admitted.

In Campbell v. State, the court upheld the admission and authentication of Facebook messages in a domestic assault case. The court asserted that Facebook presents an authentication concern that is 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. The second concern is that any person may gain access to another person’s account by obtaining the user’s name and password. The person viewing the profile cannot be certain that the author is, in fact, the profile owner. However, the most appropriate method for authenticating electronic evidence, as with any kind of evidence, will often depend on the nature of the evidence and the circumstances of the particular case. The appellate court held that the contents of the Facebook messages provide circumstantial evidence supporting the trial court’s ruling.

In United States v. Lanzon, the court upheld the admission of instant messaging transcripts with the defendant and an undercover agent. 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 argument under Fed. R. Evid. 901(b)(1) stating that the proponent need only to present enough evidence to make out a prima facie case that the proffered evidence is what it purports to be.

In State of Hawaii v. Espiritu, the court considered text messages to be a ‘writing’ under Fed. R. Evid. 1002. The court found that the original messages were lost or destroyed. Nevertheless, the court concluded that the text messages were admissible via the complainant’s testimony under the state equivalent of Fed. R. Evid. 1004, finding that 1004 is ‘particularly suited for electronic evidence’ because of the many ways it can be deleted or lost. Fed. R. Evid. 1004 states that an original is not necessary and “other evidence of the content of a writing, recording, or photograph is admissible if all the originals are lost or destroyed, and not by the proponent acting in bad faith.”

  1. New Federal Rules of Evidence

Given the unpredictability and the wide variety of results in judicial decisions concerning authenticating ESI, there have been new rules that have been adopted to supplement the rules as of December 1, 2017. Rule 902 (13) addresses some of the concerns that many have about the current rules and how they address modern day evidence such as ESI. The new Rule 902 (13) addresses Certified Records Generated by an Electronic Process or System. The specific language of the rule states:

Rule 902(13): Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

There is also a new Rule 902 (14) that has been implemented. Rule 902 (14) discusses Certified Copies of Electronic Devices, Storage Media, or Files. The specific language of the new rule states that:

Rule 902(14): Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

Without a doubt, the addition of these two rules potentially allow for a more uniformed approach to authenticating electronic evidence and smoother trials where: (a) experts are utilized; and (b) there is no dispute over the authenticity of the records. There is the potential concern, however, that there is too much overlap with existing rules. Specifically, that the new rules 902(13) and 902 (14) may create problems with other provisions of 902, 901, 104 (a) and 104 (b).

  1. Dealing with Objections

When there has been an objection to admissibility of a text message, the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission; thus, authenticating a text message or e-mail may be done is much the same way as authenticating a telephone call. An e-mail may be authenticated by circumstantial evidence that allows the finder of fact to determine that the e-mail is what the proponent claims it to be.

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 or evidence during a deposition and have the creator or recipient of the ESI confirm that it is genuine. This will be the strongest and simplest way to prove that your ESI evidence was not manipulated.

The possibility of alternation does not and cannot be the basis for excluding ESI as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population and is of particular importance in the professional world. A party is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are submitted to a jury. In United States v. Safavian, the court found that absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done. The take away from Safavian is that the court in most cases will recognize that manipulation is possible, but there is still the evidence that is required to show that it was. And even then, if it is not overly, convincing, courts have said that information goes to the weight of the evidence, to be considered by the trier of fact.

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. at 560.

Id. at 562.


White v. White, 781 A.2d 85 (N.J. Super. Ch. 2001).


In re: Joel B. Eisenstein 485 S.W.3d 759, 759-761 (Mo. 2016)


Id. at 762.

Id. at 763.

Id. At 761.

Id. at 672.

Id. at 674.

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.

Civil Case No. 4:06-cv-3560 (S.D. Mar. 31 2009)





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).

Conner v. Tate, 130 F. Supp. 2d 1370, 1373 (N.D. Ga. 2001).

Id. at 228


18 U.S.C. § 2702(a)(1); (b)(3).

The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 228 (2013)

Id. at 229.



18 U.S.C. § 2702(a)(2).

See The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 229-230 (2013).

Id. at 230.


Id. at 237.

Id. at 233; see generally 18 U.S.C. § 2702(b) (lists various exceptions to SCA protections on customer


The Sedona Conference® Primer on Social Media, 14 Sedona Conf. J. 191, 233 (2013) (“the founder and

administrator of one of the Internet’s most popular imageboards167 testified that threads in the site’s most popular

board ‘generally speaking’ last ‘from minutes to hours to a few days at maximum.'”).



Id. at 233-234.

Id. at 234.

364 S.W. 3d 605, 610-611 (Mo. App. 2012)


Id. at 607-608.


Id. at 614.

631 F.3d 266,286 (6th Cir.2010)

State v. Clampitt 364 S.W. 3d 605 (Mo. App. 2012)

Com. v. Koch. 39 a.3d 996, 1000 (Pa. Super.2011)

State v. Harris, 358 S.W. 3d 172,175 (Mo. App. E.D. 2011)



State v. Francis, 455 S.W. 3d 56, 70 (Mo. App. 2014)

Id. at 71.

Id. 70.


Id. at 73.


ED105999, 5 Mo. App,2018

State v. Harris, 358 S.W. 3d 172,174 (Mo. App. E.D. 2011)

T.R.P., supra note 56.

United States v. Catrabran, 836, F.2d 453 (9th Cir. 1988).


Canadyne-Georgia Corp. v. Bank of America, N.A., 174 F. Supp. 2d 1337, 1343 (M.D. Ga. 2001).

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

People v. Charlery, 2014 WL 5396166, at 4-5 (V.I. Super. Oct. 22, 2014).


Frieden, Jonathan D. & Leigh M. Murray. The Admissibility of Electronic Evidence under the Federal Rules of Evidence. 17 Rich. J.L. & Tech. 5 (2010).


Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012). (citing Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)).






Id. at 553.

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

Id. at 1297.

Id. at 1301.

State of Hawaii v. Espiritu, 176 P.3d 885 (Haw. 2008).

Id. at 892.



Fed. R. Evid. 902(13)



Fed. R. Evid. 902(14)


State v. Koch, 334 P.3d 280 (Idaho 2014).

Zittler, Jay M. Authentication of Electronically Stored Evidence, Including Text Messages and E-mail. 34 A.L.R.6th 253, § 3.5. (Originally published in 2008)(see Donati v. State, 84 A.3d 156 (Md. Ct. Spec. App. 2014).

United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006), rev’d on other grounds, 528 F.3d 957 (D.C. Cir. 2008).


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