Increasingly separated parties are relying on”Facebook”, email and text messages to prove certain parts of their case – and this can be very confusing.
Firstly, all electronic evidence will have to conform with respect to authenticity, originality and reliability. This is sometimes difficult as sites may not be secure or cut and paste documents can be used. For example if there is a series of text messages used to prove a point in the negotiation, mediation or court, one has to be confident that the document has not been edited. In order to do so, one must ensure that there is notice early in the negotiations to the other side to preserve evidence. If one wants to rely on a certain text message to either cross examine the other side or to prove a point, the deponent must prove that the evidence was properly preserved and in some cases obtain an expert in forensic or computer law to confirm the truth and integrity of the documents. The expert can then report to the decision maker in the matter as to the authorship, original appearance, content, substance and internal pattern. One can do the same to challenge a text, email or other document.
Consider this fact situation: June is attempting to obtain custody of her son. They live in Aurora. June’s partner disputes custody and says she has a gambling addiction. One day on June’s friend’s Facebook page there is a picture, apparently taken on a day that June has care of her son, with a caption “WE WON BIG”. June’s partner will want to use that picture to attack June’s credibility and to show that June was not with her son as she had said she was – the truth of the evidence. Subject to verification and obtaining evidence from the third party, it would be prudent for June’s partner to immediately obtain an order (which can be done only if a court action is started) and obtain third party evidence and notify June’s friend not to destroy any data.
Will the court, if there is an action, or the arbitrator rely on the electronic evidence? – not absolutely, but it is clearly worth trying.
One Judge has said. “In recent years, the evidence in family law trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility in not nearly as difficult as it was before the use of email and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace” ( Bruni v. Bruni 2010 ONSC 6569 at footnote 23). Moral of this story – think twice before hitting the send button – what you might think of or say in the heat of the moment may be used against you.
However, make sure if you wish to rely on the evidence in the (usually, now) text message, make sure you are able to obtain permission to admit the information – as the BC Supreme Court indicated in not allowing evidence, “neither party tendered the electronic version of the email or any metadata relating to it . I am left with conflicting versions as to what [the parties] emailed each other. Ordinarily such altercation can be detected by a forensic review or simply by viewing the metadata of the email. Given the way in which emails are created and sent, I must exercise great caution in considering what they purport to contain” ( Hamilton v. Jackson 2009BCSC538 at para.17). Moral of this story – if the evidence is important, introduce it properly.
Historically, “spleen venting” occurred in phone calls that could not really be introduced. With the advent of text, email and online computer programs, the search for evidence to prove your case is ever expanding – however, follow the rules of reliability, preservation and authentication early on to ensure the “big” piece of evidence that will “make your case” can be used in the manner you wish and intend it to be utilized.