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Using email as evidence in court?

J

JMorton6

Senior member
Our company is taking another company to court and we want to rely on email as evidence. We have a few emails that have been printed (just by themselves, no special header info or anything) that are no longer on our system - will they be acceptable for court use? Knowing the other guys, they might deny having ever sent them, but is there any way to prove that? Do ISPs keep logs either of the emails themselves or of the fact that emails have been sent out, i.e. the date / recipient only?
 
When I took someone to court with e-mails I made sure the headers were on them. I also printed them all off not just 1 with a string of replys.

Now if this is a major case then a good lawyer could say they are fake and it be up to you to prove other wise. In my case the person folded and admitted he sent them after I brought them up.
 
They look at it just like any other typed document. Even with headers it wouldn't be proof unless you had a statement from the senders isp that it was correct. Headers can be typed in just like anything else. ISP do not keep records on what was sent and to where. They do keep track of volume sent though, to prevent abuse.
 
Originally posted by: Modelworks
They look at it just like any other typed document. Even with headers it wouldn't be proof unless you had a statement from the senders isp that it was correct. Headers can be typed in just like anything else. ISP do not keep records on what was sent and to where. They do keep track of volume sent though, to prevent abuse.
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The other company may not know that. 😛
 
Originally posted by: Modelworks
They look at it just like any other typed document. Even with headers it wouldn't be proof unless you had a statement from the senders isp that it was correct. Headers can be typed in just like anything else. ISP do not keep records on what was sent and to where. They do keep track of volume sent though, to prevent abuse.
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ummm, no.
 
uhm printed emails should never be relied on as evidence 😛

I mean really...print the email to pdf, modify the PDF to say whatever you want, or change the header information, etc, then print out.
If I were the judge, I'd require the person presenting the email evidence to log into their account and let me look at the email.
but even that isn't foolproof... it doesn't take a rocket scientist to send a fake email. The only way to make it harder to fake is some sort of digital signing setup like pgp/public key encryption.



Besides who here HASN'T sent the occasional email from president@whitehouse.gov?
 
Originally posted by: ElFenix
Originally posted by: Modelworks
They look at it just like any other typed document. Even with headers it wouldn't be proof unless you had a statement from the senders isp that it was correct. Headers can be typed in just like anything else. ISP do not keep records on what was sent and to where. They do keep track of volume sent though, to prevent abuse.
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ummm, no.
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No to which part?
 
Seriously, NO ISPs keep this info? So if I call them or the court calls them, they'll be utterly useless? Like not even a trace saying an email was sent here or there?
 
Uhm, seriously dude... do you WANT your ISP to keep track of you like this? I certainly fucking don't. On the other hand, your company should have a proper document retention policy, keeping an archive of emails sent & received.
 
I'm not a lawyer here but is it possible to have a subpoena issued to the other company for these emails in these type of cases? If these emails can be found on the sent folder of their computers, there's no refuting the validity of the emails.
 
Originally posted by: darkxshade
I'm not a lawyer here but is it possible to have a subpoena issued to the other company for these emails in these type of cases? If these emails can be found on the sent folder of their computers, there's no refuting the validity of the emails.
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Except you can't do that because of the expectation of privacy laws. You can't seize emails because they might contain evidence without proving to the court that they contain evidence before you get them . A person has to be told by whoever they are using for email that they have no expectation of privacy before they sent the emails. And if you can't get them then you can't prove they contain evidence.


The Court found unconstitutional the Stored Communications Act (?SCA?) provisions allowing Government seizure of such communications without prior subscriber notice, because the court order could be issued without a showing of probable cause that the subscriber had committed a crime. The Sixth Circuit found that individuals have an expectation of privacy regarding the contents of emails sent or stored through an Internet Service Provider (ISP).
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Short answer is, of course, it depends. Yes you can try to use them, but the judge might not admit them if he feels you haven't provided sufficient authentication, and how prejudicial to the other side the content of the email is.

Kearley v. State, 843 So. 2d 66, 2002 Miss. App. LEXIS 560 (Miss. Ct. App. Oct. 22, 2002).
After being convicted of sexual battery, defendant appealed on issues regarding the proper authentication of email messages he had allegedly sent to victim. During the trial, the victim had testified that she had received and printed the email messages on her computer and the appellate court held that this testimony was sufficient authentication under the rules of evidence, upholding defendant's conviction.
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What's the difference between you bringing in a printed email for which you lost the original electronic version vs bringing in a letter you say the other side wrote and mailed to you? You could have faked the letter too for all the judge knows. You will have to provide some level of authentication however, and you can do this short of pulling ISP date/timestamp records.

If you introduce it as evidence and the other party claims they never sent the letter, then they are lying and it's really rare for a party to tell an outright lie that can be discovered through electronic back-tracking. They may say something like "I don't remember sending that" but as far as it being admissible as evidence, sure it is, just like the letter you claim they wrote is. If you submit an affidavit or testify that you printed out the email but lost or deleted the original, that would likely be sufficient, especially if the opposing counsel doesn't object. The trier of fact can simply weigh how much he thinks that particular piece of evidence is worth. Evidence (such as trial testimony) is weighed by the trier of fact. Admissibility is a legal question for the judge, but once he lets it in, the jury figures out how much credibility they assign to it, just like they do with any oral testimony given. They don't have to accept everything presented as true. A juror could think "ok, the judge admitted that email, but you know what? I think the guy faked it and I believe the other party when he said he didn't send it. I found him more credible and believable."

Course the emails can also be thrown out as hearsay depending on what you want to use them for. In any event, it doesn't hurt to try to introduce them.
 
Wait, so some people are saying that ISPs do NOT keep these records, but you're saying that they do? Which one is it and oh, this is for CANADA.

By the way, knowing these guys, they WILL claim the emails are fake. How can I go about proving them to be authentic and how can they go about trying to claim they're not?

Originally posted by: jonks
Short answer is, of course, it depends. Yes you can try to use them, but the judge might not admit them if he feels you haven't provided sufficient authentication, and how prejudicial to the other side the content of the email is.

Kearley v. State, 843 So. 2d 66, 2002 Miss. App. LEXIS 560 (Miss. Ct. App. Oct. 22, 2002).
After being convicted of sexual battery, defendant appealed on issues regarding the proper authentication of email messages he had allegedly sent to victim. During the trial, the victim had testified that she had received and printed the email messages on her computer and the appellate court held that this testimony was sufficient authentication under the rules of evidence, upholding defendant's conviction.
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What's the difference between you bringing in a printed email for which you lost the original electronic version vs bringing in a letter you say the other side wrote and mailed to you? You could have faked the letter too for all the judge knows. You will have to provide some level of authentication however, and you can do this short of pulling ISP date/timestamp records.

If you introduce it as evidence and the other party claims they never sent the letter, then they are lying and it's really rare for a party to tell an outright lie that can be discovered through electronic back-tracking. They may say something like "I don't remember sending that" but as far as it being admissible as evidence, sure it is, just like the letter you claim they wrote is. If you submit an affidavit or testify that you printed out the email but lost or deleted the original, that would likely be sufficient, especially if the opposing counsel doesn't object. The trier of fact can simply weigh how much he thinks that particular piece of evidence is worth. Evidence (such as trial testimony) is weighed by the trier of fact. Admissibility is a legal question for the judge, but once he lets it in, the jury figures out how much credibility they assign to it, just like they do with any oral testimony given. They don't have to accept everything presented as true. A juror could think "ok, the judge admitted that email, but you know what? I think the guy faked it and I believe the other party when he said he didn't send it. I found him more credible and believable."

Course the emails can also be thrown out as hearsay depending on what you want to use them for. In any event, it doesn't hurt to try to introduce them.
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Originally posted by: ElFenix
Originally posted by: Modelworks
They look at it just like any other typed document. Even with headers it wouldn't be proof unless you had a statement from the senders isp that it was correct. Headers can be typed in just like anything else. ISP do not keep records on what was sent and to where. They do keep track of volume sent though, to prevent abuse.
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ummm, no.
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what would stop someone from printing out an email from the defendant with a real header, but changing the body of the text? does the header include some kind of information on what is in the body?
 
Originally posted by: slayer202
Originally posted by: ElFenix
Originally posted by: Modelworks
They look at it just like any other typed document. Even with headers it wouldn't be proof unless you had a statement from the senders isp that it was correct. Headers can be typed in just like anything else. ISP do not keep records on what was sent and to where. They do keep track of volume sent though, to prevent abuse.
Click to expand...

ummm, no.
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what would stop someone from printing out an email from the defendant with a real header, but changing the body of the text? does the header include some kind of information on what is in the body?
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Nothing.
There is nothing in the headers that can't be faked. Spammers do it all the time.
Email is not a secure document format.

Really if I worked for a company and they used email to make business decisions with other companies I would get a digital ID and sign all the emails.
http://www.verisign.com/authen.../digital-id/index.html
 
Well, this is a good lesson to teach your company. There is software that integrates with Outlook, Lotus, etc. to manage, archive, re-direct all the company's email messages.

You can purchase it from EMC, it's called EmailXtender or something...
 
Originally posted by: zeruty
uhm printed emails should never be relied on as evidence 😛

I mean really...print the email to pdf, modify the PDF to say whatever you want, or change the header information, etc, then print out.
If I were the judge, I'd require the person presenting the email evidence to log into their account and let me look at the email.
but even that isn't foolproof... it doesn't take a rocket scientist to send a fake email. The only way to make it harder to fake is some sort of digital signing setup like pgp/public key encryption.



Besides who here HASN'T sent the occasional email from president@whitehouse.gov?
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I have sent many from president@[url="http://en.wikipedia.org/wiki/Whitehouse.com"]whitehouse.com[/url] though
 
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