The Use of Text Messages and Emails in Litigation Proceedings
A trend in court proceedings, and particularly in probate litigation matters, is the use of copies of text messages and emails between individuals in court proceedings. From an evidentiary standpoint, and for the use of said text messages and emails in court proceedings, an important question becomes the authenticity of the text messages and emails.
To that end, Fla. Stat. §90.901 contains the requirement for authentication or identification:
Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
There is little case authority on the authentication of emails or text messages. However, the authentication issue as to text messages was recently examined by the Fourth District Court of Appeal in Walker v. Harley-Anderson, 301 So. 3d 299 (Fla. 4th DCA 2020). The court explained:
Evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication. Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th DCA 2008).
“Testimony that a person received a text or email from another is not sufficient, by itself, to authenticate the identity of the sender.” Charles W. Ehrhardt, 1 West’s Fla. Practice Series section 901.1a (2020 ed.). Other factors can circumstantially authenticate the text. Id. See, e.g., United States v. Siddiqui, 235 F. 3d 1318, 1322 (11th Cir. 2000) (finding that a number of factors supported the authenticity of the email, that the address bore the defendant’s address and when the witness replied to the email the “reply function” of the witness’s email system automatically put the defendant’s address as the sender; the context of the email showed details of the defendant’s conduct and an apology that correlated to the defendant’s conduct; and the email referred to the author by defendant’s nickname and the witnesses confirmed that in phone conversations the defendant made the same requests as in the emails); Pavlovich v. State, 6 N.E. 3d 969, 978-79 (Ind. Ct. App. 2014) (finding text messages had been properly authenticated by circumstantial evidence by a witness who confirmed that the 2662 number was used to arrange a meeting with the defendant; that the witness recognized the defendant’s voice on the outgoing voicemail; and that the messages from the 2662 number indicated familiarity with the witness’ escort business, the prior meeting between the witness and defendant and their prior discussion); compare Commonwealth v. Koch, 39 A. 3d 996, 1005 (Pa. Super. Ct. 2011) (finding the trial court erred in admitting text messages into evidence; there was no testimony from the persons who sent or received the text messages and no contextual clues).
The Fourth District Court of Appeal determined that there was no direct evidence that the texts were authored by the appellant. There was no one who saw or heard the texts being sent, the texts appeared to be different phone numbers none of which matched the appellants, and there was no other explanation as to who sent the texts. Further, the texts did not contain information which would have been known only to the appellant. Testimony of receipt of a text or email from another is insufficient, by itself, to authenticate the identity of the sender; however, other factors can circumstantially authenticate the text such as those mentioned here. In Walker, though, the very basics to meet authenticity requirements under Fla. Stat. §90.901 for these texts were not met and therefore the trial court erred in allowing them into evidence.
Your experienced probate and trust litigator will apply these concepts of authenticity for admission as evidence to text messages – and emails and other similar electronic information – in litigation proceedings.