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Archive for the ‘Instant Messaging’ Category

Case Blurb: Lebowitz; Authentication of ESI Discussed

Posted by rjbiii on May 17, 2010

The Defendant questioned the authenticity of email transcripts, “instant messages,” and “chats” due to the incompleteness and integrity of the evidence. “The requirement of authenticity . . . as a condition precedent of admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Though K.S. did not testify at the hearing, Officer Suber testified that the communications were provided to her by K.S. FN2. Also, other evidence, including recorded telephone conversations, corroborated the communications. There are obvious omissions in some of the communications. However, the Court finds that those omissions do not support excluding the communications. The omissions go to the weight rather than the admissibility of the evidence. Based upon the evidence presented at the hearing, the Court finds that Defendant has not demonstrated that the evidence should be excluded at this time. Defendant’s Motion on the Authenticity of Purported Electronic Communications is DENIED.

FN2: For purposes of the hearing, Officer Suber’s testimony was sufficient. However, before the communications will be admissible at trial, the testimony of K.S. or someone with actual knowledge about the communications will be required.

United States v. Lebowitz, 2010 U.S. Dist. LEXIS 7026 at *4-5 (N.D. Ga. Jan. 27, 2010)

Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content, email, FRE 901(a), Instant Messaging, Judge Richard W. Story, N.D. Ga., Uncategorized | Leave a Comment »

Defense Attorney Discusses IM as Evidence

Posted by rjbiii on September 21, 2007 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.

Posted in Admissibility of ESI, Articles, Instant Messaging, Texting | Leave a Comment »