Post Process

Everything to do with E-discovery & ESI

Case Blurb: Lorraine; Authenticating Text Messages and Chat Room Content

Posted by rjbiii on September 22, 2007

Many of the same foundational issues found encountered when authenticating website evidence apply with equal force to text messages and internet chat room content; however, the fact that chat room messages are posted by third parties, often using “screen names” means that it cannot be assumed that the content found in chat rooms was posted with the knowledge or authority of the website host.

One commentator has suggested that the following foundational requirements must be met to authenticate chat room evidence:

  1. [e]vidence that the individual used the screen name in question when participating in chat room conversations (either generally or at the site in question);
  2. [e]vidence that, when a meeting with the person using the screen name was arranged, the individual … showed up;
  3. [e]vidence that the person using the screen name identified [himself] as the [person in the chat room conversation];
  4. evidence that the individual had in [his] possession information given to the person using the screen name;
  5. [and][e]vidence from the hard drive of the individual’s computer [showing use of the same screen name].

Courts also have recognized that exhibits of chat room conversations may be authenticated circumstantially.

  • (References In Re F.P., A Minor, in which the defendant argued that the testimony of the internet service provider was required, or that of a forensic expert. 878 A.2d at 93- 94). The court held that circumstantial evidence, such as the use of the defendant’s screen name in the text message, the use of the defendant’s first name, and the subject matter of the messages all could authenticate the transcripts.
  • (References United States v. Simpson, the court held that there was ample circumstantial evidence to authenticate printouts of the content of chat room discussions between the defendant and an undercover detective, including use of the e-mail name of the defendant, the presence of the defendant’s correct address in the messages, and notes seized at the defendant’s home containing the address, e-mail address and telephone number given by the undercover officer. 152 F.3d at 1249).
  • (References United States v. Tank, the court found sufficient circumstantial facts to authenticate chat room conversations, despite the fact that certain portions of the text of the messages in which the defendant had participated had been deleted. 200 F.3d at 629-31). There, the court found the testimony regarding the limited nature of the deletions by the member of the chat room club who had made the deletions, circumstantial evidence connecting the defendant to the chat room, including the use of the defendant’s screen name in the messages, were sufficient to authenticate the messages.

Based on the foregoing cases, the rules most likely to be used to authenticate chat room and text messages, alone or in combination, appear to be:

  • 901(b)(1) (witness with personal knowledge) and
  • 901(b)(4) (circumstantial evidence of distinctive characteristics).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

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