Post Process

Everything to do with E-discovery & ESI

Defense Attorney Discusses IM as Evidence

Posted by rjbiii on September 21, 2007

Law.com has posted a New York Law Journal article written by defense attorney Ken Strutin that discusses the procedural challenges of admitting text from IM and texting technologies in court for criminal cases.

Instant messaging is an increasingly popular medium that’s sometimes an important link in the prosecution’s case. As with every new communication tool, it brings new challenges for criminal procedure.

Mr. Strutin describes how the fourth amendment’s protection of privacy factors into the equation, and discusses a number of cases in which courts have ruled on the matter.

While the science of surveillance continues to advance, new techniques and technologies must still meet the acid test of the Fourth Amendment. The probable cause and particularity requirements have been interpreted to prevent “roving commissions” to seize conversations overheard through listening devices, [] and today ought to apply to messages captured through e-mail or IM.

The author does not address the issue of IM in the context of a civil action, but criminal procedures are, in the aftermath of Enron and the like, more relevant than ever for corporations.

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