As every good trial attorney knows, to offer evidence at trial, it must be established that the evidence is authentic. That is, establishing that the evidence is what it purports to be. As explained by this North Dakota Supreme Court opinion, text messages may be authenticated either by a witness, usually the sender or recipient, or by circumstantial evidence such as testimony tying distinctive screen names and addresses to message senders and recipients. But what if an original copy of the message is not available? Is the Best Evidence Rule applicable, such as the one found in Federal Rule of Evidence 1002, requiring the “original writing, recording, or photograph . . . to prove its content”? Several state and federal courts answer in the affirmative and consider electronic communications, such as text messages, to be “writings” subject to the rule. For instance, the Supreme Court of Hawaii concluded in State v. Espiritu, 176 P.3d 885 (Haw. 2008) that “a text message is a writing because it consists of letters, words, or numbers set down by mechanical or electronic recording, or other form of data compilation.”
Thus, the party offering a text message or other electronic communication must present the original version or find a way around the Best Evidence Rule. However, as is the case with every rule, there are exceptions to the Best Evidence Rule’s requirement that originals be offered to prove the contents of writings, recordings and photographs. As an initial matter, the rule may not be as strict as it appears. Duplicate copies of writings are generally admissible unless challenged. For instance, Federal Rule of Evidence 1003 (and similar state rules) provide that duplicates are admissible “unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.” Additionally, Evidence Rule 1004 states that an original is not required if: 1) if it is destroyed (except if destroyed in bad faith by the person offering it); 2) the party against whom the original is being offered controlled the original but fails to produce it at trial despite being on notice it would be used; or 3) the evidence at issue is not closely related to a controlling issue.
Because it is often unfeasible or impossible to produce “original” text messages, courts often rely on exceptions to the Best Evidence Rule and permit other evidence of the content of the communications. For instance, in Espiritu, the Hawaiian high court permitted testimony about the contents of text messages in lieu of the messages themselves. Similarly, in Greco v. Velvet Cactus, LLC, Civil Action No. 13-3514 (E.D. La. June 27, 2014), the court admitted contents of text messages copied into an email sent to counsel and supported by a declaration verifying the accuracy of the messages by the owner of the phone from which the messages were copied. The Greco court even went so far as to state that the email messages containing the copied text message contents satisfied the Best Evidence Rule’s requirement of an original because “[f]or electronically stored information, ‘original’ means any printout- or other output readable by sight- if it accurately reflects the information.”
Regardless of “best evidence” considerations, when dealing with electronic communications, especially text messages, “best practice” suggests that original copies of the messages should be secured when possible. One effective way to do so is to secure a forensic copy of the data on the device containing the messages. Also, text message files may often be backed up or exported. Some services, such as Apple’s iCloud automatically creates backup copies of messages and apps exist permitting users to export copies of text messages. Other ways to preserve the messages (with varying risks of inadmissibility) are forwarding copies of the messages to a secure address or taking screenshots of the messages that can be verified by written or oral testimony.