Electronic Evidence: What You Should Know and How to Protect Yourself
A question we get often is what electronic evidence can be admitted into court. Specifically regarding items such as emails or text messages. There are a lot of rules about what can and cannot be admitted into court. Especially as the world of technology continues to grow.
What type of electronically stored information is admissible?
All types of data can be admissible as evidence if it meets the evidence requirements. This includes data stored in computer systems or devices, such as text, images, video, audio, calendar, any information that is transmitted electronically through the internet, etc.
It is important to know that anything submitted to the court as evidence must pass the corresponding state’s Rules of Evidence. Each state has its own rules. Most of them are based on the Federal Rules of Evidence and include a set of rules surrounding the evidence’s authentication and relevance. Also, among other rules specifically tailored to litigation and providing a fair trial. The evidence will have to be relevant and reliable at the very least.
What happens if the information is deleted?
If the information is deleted, unfortunately, it can no longer be used. HOWEVER, even though a person thinks they permanently deleted something does not mean that it has in fact been deleted. There may still be traces of it in backup copies or caches that can be found through the e-discovery process. Additionally, if you are not the only owner of this data, it can still be used. For example, if a picture was deleted off your phone but was posted on someone else’s social media account, it can still be admitted into court.
Can I delete anything that I do not want to be admitted as evidence?
Electronic evidence is susceptible to being deleted as well as manipulated much easier than physical evidence, but it is very important to note that all electronic evidence has to be preserved, documented, and analyzed the same as physical evidence. Once a lawsuit is commenced, and sometimes before the case is filed, you have the duty to preserve any relevant evidence. This means that if you have filed a lawsuit or someone has filed a lawsuit against you, it is imperative that you DO NOT delete anything that would relate to the case. This does not only include documents, but also text messages, calendars, emails, or any other electronically stored information.
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