Parties that are involved in divorce litigation will find that technology can have a significant impact on their cases. Text messages and emails are being regularly used in court proceedings. Introducing texts and emails to a judge in the court is tricky. Parties must familiarize themselves, because if not done properly, they will not be admitted into evidence.
Obtaining text messages and email communications Text messages sent to the opposing party should always be backed up as the chances of the messages getting deleted by the opposing party is highly likely. Information pertaining to the time the message was sent or received, in addition to the date, can be obtained through a subpoena. An opposition is to be expected from the opposing party and the cell phone provider when sending a subpoena to a cell phone provider. The attorney can draft a letter and send it to the cell phone provider to try and stop providers from permanently deleting messages. The best way to obtain messages that are related to the opposing party is to directly approach them. To obtain email communications, there are two ways. Messages can be acquired from the party that is in control of the electronic device containing the emails. This can be achieved by serving a demand to examine the hard drive, allowing the emails to be copied. If the emails are stored on cloud servers, divorce attorneys have to subpoena the cloud service provider to obtain them.
Authenticating electronic evidence Emails and texts need to be authenticated before being introduced as evidence. The chances of tinkering electronic evidence are higher than normal, hence proper steps must be taken to effectively use them. There are chances of a third party getting involved by using a party’s computer to send emails to different parties. Hence, authenticating all forms of communication are necessary. There has to be a preliminary showing of relevance to the issue that has to be done with respect to emails and texts. This can be done by substantiating the writing, verifying that it was made by the sender, and not the receiver. Text messages in California can be authenticated through the following ways:
- Coincidental proof of authenticity (Evidence Code §1410)
- Unique attributes of the message itself (Evidence Code §1421)
- Testimony by witness who saw the creation or execution of messages (Evidence Code §1413)
- Reply authentication (Evidence Code §1420)