In today’s electronic age where text messages, instant messages and e-mails have, to a large degree, supplanted traditional written correspondence, courts are increasingly called upon to apply longstanding evidentiary rules to society’s newer methods of communication. A recent opinion, however, from the Pennsylvania Superior Court, Commonwealth v. Koch, No.1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011), suggests that the more things change, the more they stay the same.

According to Koch, a party seeking to admit a text message as evidence at trial faces authentication requirements similar to those of a party seeking to admit a handwritten letter. A letter, for example, may bear Mr. Smith’s signature, or be printed on Mr. Smith’s stationery, but that signature may be forged, or the letterhead copied. Typically, some further authentication is needed to show that the letter is what it purports to be – i.e., a statement made by Mr. Smith. Under Koch, the same principle applies to text messages: the mere fact that a text message came from Mr. Smith’s cell phone number is an insufficient basis to admit that text message as a statement made by Mr. Smith. Additional evidence of the sender’s identity is needed.

In Koch, the trial court admitted testimony and a transcript of thirteen drug-related text messages obtained from a cell phone that the defendant admitted belonged to her. The defendant objected, claiming there was no evidence substantiating that she was the author of the text messages, nor was there evidence that the drug-related texts were directed at her, because Commonwealth witnesses testified that another person was using the defendant’s cell phone at least some of the time. At trial, a police detective further conceded that: the author of the drug-related text messages could not be ascertained; that some of the messages referred to the defendant in the third person and, thus, were not written by the defendant; and that some text messages had been deleted. The defendant was ultimately convicted on two drug-possession charges.

The Pennsylvania Superior Court reversed, holding that the trial court erred in admitting the text messages because the messages were improperly authenticated. In determining the standard for the authentication of text messages, the Superior Court looked to several recent appellate opinions from around the country, as well as its own opinion in In the Interest of F.P., a Minor, 878 A.2d 91 (2005), a case that addressed authentication of instant messages.   From these cases, the court concluded that “e-mails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally.”

Establishing authorship of an e-mail or text message, the court observed, can be difficult because e-mail accounts and cell phones are not always exclusively used by the person to whom the e-mail account or cell phone belongs. In the light of this, the court held that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.”

Turning to the facts of the case, the court found that evidence showing that the defendant had written the text messages found on her phone was “[g]laringly absent.” The court noted that there was no confirming testimony from the senders or recipients of the disputed messages and no contextual clues within the messages themselves that revealed the identity of the sender. The court also rejected the idea that the defendant’s physical proximity to the cell phone when it was seized was probative of the defendant’s authorship of the text messages made days or weeks earlier. Under these circumstances, the court concluded that the admission of the text messages was an abuse of the trial court’s discretion.   

With Koch, the Pennsylvania Superior Court has made clear that an individual’s mere association with an e-mail account or cell phone number is an insufficient evidentiary basis for admission of a text message, e-mail, or instant message. A party seeking to introduce electronic communications at trial should be prepared to produce circumstantial evidence that corroborates the identity of the supposed sender. Koch provides some guidance as to what that circumstantial evidence might be: testimony from the sender or recipients, or contextual clues within the message itself. Merely identifying the phone or account from which the message came, however, is not enough.

Background:

When Are Text Messages Admissible? The Pennsylvania Superior Court Explains.
Source: original article
Author: Mike Zabel
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

These rules are important because they can be easily ignored by e-discovery attorneys who are unaware of the challenges involved with ESI admissibility. Judge Grimm explains:

Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. FED.R.CIV.P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

See Lorraine, 241 F.R.D. at 537-38.

In Lorraine, the court summarized the process for admitting ESI under the Federal Rules of Evidence:

Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered:

(1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be);

(2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be);

(3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807);

(4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and

(5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance.

Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the very process of determining admissibility of ESI, it must be considered first.

See Lorraine, 241 F.R.D. at 538.

The court then provided a lengthy dissertation applying the process to the facts of the case. The material provides a rule analysis at the micro level, which can be very valuable for an attorney who wants to understand how to challenge or defend the admissibility of ESI evidence.

Read the full case at Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D.  Md. May 2007) or the PDF version.