Commonwealth v. Purdy 
Email, ESI and Electronic Communication: Admissibility of Evidence
This early 2011 criminal case disputed the admissibility of emails as evidence, and the standards of authentication necessary for considering both email and content from social media as genuine digital evidence. In this instance, the trial judge admitted emails allegedly authored by the defendant into evidence, which was subsequently disputed and explored.The defendant naturally objected to the use of emails as evidence on the basis that they were not properly authenticated (as having been authored by him).
The court found that “evidence that . . . originates from an e-mail or a social networking website such as Facebook or MySpace that bears the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant.”
In this instance, however, the Court found that the admission of emails as party to the case had due cause as there was sufficient circumstantial evidence to allow the jury determine if the emails were authored by the Defendant.
The Court also referenced other eDiscovery cases prior to 2011 dealing with circumstantial authentication, such as phone calls, letters- and noted that principles adapts in respect to email or social media evidence.
While emails and other forms of electronic communication present their own opportunities for false claims, editing, tampering and falsification, the basic principles of authentication are deep-rooted and unchanging.
Authentication of Authorship
Evidence implying that the defendant is the author of an email or that the electronic communication originates from an email or a social media site bearing the defendant’s name is not sufficient alone to authenticate the ESI as originating from the defendant. There must be circumstantial or confirming circumstances – sufficient for a reasonable jury to find that the defendant authored the emails, post, message etc.
In this instance it was held that “Confirming Circumstances” of an adequate and substantial standard were present, as emails originated from an account bearing the defendant’s name, used by the defendant, on a hard-drive owned by the defendant and at least one email had photo of named defendant attached.
Social Networking Standards
Many commentators have stated that the principles that social networking communications are subject to a different standard of authentication of origin from other communications including text messages, and emails. The transient nature of content and the ease of falsifying these accounts or information are the main reasons for such, and so in attributing evidentiary admissibility additional technological and Discovery resources and processes are necessary.
Evolving standards of E-mail Authentication
In the context of authenticating email evidence, it should be sufficient to show that the person “owned” the email account in question or that the emails were sent from a computer which the author owned. Here, the court’s decision leaves it up to the defendant to explain this in order to rebut the claim of authorship.
The Role of WebPreserver
WebPreserver is an innovative eDiscovery tool, essential for the effective and easy creation of evidence from ESI and preservation of digital content for litigation purposes, aimed specifically at legal professionals, litigation support and law enforcement officials.
Snapshots of social media content are created and authenticated with the efficient and simple use of a Plug-in and single-click capture in line with Federal Rules of Evidence and other compliance standards, creating reliable evidence for litigation proceedings.
Snapshots are saved in both PDF and WARC formats and authenticated with the advanced technology of both an e-signature (in compliance with the E-Sign Act) and an automated time stamp giving integrity to content taken from social media. WebPreserver provides the additional resources of an online sharing platform where litigation support and legal professionals can share personal files of evidence with colleagues and clients, download them locally, and organise with keyword tagging.
The growing importance of social media content and ESI as evidence in the courtroom means that firms and law enforcement authorities should have a simplified, cost and time effective records management structure in place to ensure fair trials and outcomes – WebPreserver is the essential eDiscovery tool that provides such a service
The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.