When are text messages admissible in court? Which text messages qualify as evidence, and what does it take to prove authorship of a text message?
A recent opinion from the Pennsylvania Superior Court, Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011), addresses these very issues in an old yet new way, perhaps setting the precedent for future cases and opening what seems to be a potential Pandora’s Box of obstacles to the use of text messages as legal evidence.
Where written correspondence may be subjected to questioning (e.g., signatures can be forged or letterhead copied), eDiscovery materials that clearly come from a given email account or cell phone source have been historically less open to scrutiny. However, since cell phones and even email accounts may be shared (or hacked), this could leave room for argument, as in this case, that the correspondence in question did not originate with the party who appears to have sent it.
In one respect, applying the old standard of evidence to new ESI materials, such as text messages might make sense. On the other hand, doing so also opens the door for defense attorneys to use the same tactic to remove text messages and email correspondence from evidence – whether or not they are legitimately relevant in court – based on the extreme challenge of proving the issue of authorship.
So, what do you think? Was the court right in ruling against the admission of these text messages as evidence? Does this decision create more eDiscovery problems than it solves? Please share any comments you might have or if you’d like to know more about a particular topic.
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