Text messages may be admissible in civil lawsuits if, like any documents, it passes muster under the rules of evidence pertaining to relevance, authenticity, and reliability.

Electronically stored information (“ESI”) includes emails, texts, websites, and other online postings. So provisions have been made in the law for the admission of text messages as evidence—but only if they can be authenticated.

Typically, the authentication of evidence requires a live witness to testify to its authenticity. Such testimony is unremarkable: Q: What is exhibit 1? A: A print-out copy of a text message I received from the defendant agreeing to my ten percent commission. Done. But how do you authenticate a piece of electronic data if no witness is there to say what it is?

A recent update to the Federal Rules of Evidence now allows for two categories of ESI to be considered “self-authenticated,” meaning there is no requirement for a live witness at trial. These new categories include:

Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of 902(11).

Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of 902(11).

However, authentication is just one step in getting electronic evidence admitted at trial. In addition, the evidence must be relevant, reliable, and not hearsay or unfairly prejudicial. You must also be able to establish the identity of the sender; just because a text came from someone’s cell phone does not mean the owner of that phone sent it. So courts may require additional evidence confirming the sender’s identity.

Mestaz Law provides strong legal advocacy for companies involved in general business lawsuits. We are known for using our skills, experience, and cutting-edge technology to get great results, whether after trial or through a favorable settlement. Call us today at (602) 806-2068 and schedule an appointment to meet with us about your case.