When Can Electronically Stored Information (ESI) Be Introduced Into Evidence? (part 1 of a series on this topic)

The concept of introducing electronically stored information (ESI) is no longer a novel one for attorneys, especially in divorce matters.  Text messages, emails, social media and group chats are commonplace and provide deeply personal, and oftentimes damaging evidence.  It is critical for clients to understand that such posts can become an exhibit at a hearing, and attorneys need to know how to introduce ESI at trial or other hearings.  This series will illustrate the basic approach to introducing ESI in Court.

To introduce ESI, as with any other piece of evidence, you must overcome the following evidentiary hurdles and be prepared to address each of these questions.  Failing any one of these means your ESI will be excluded:

• Is it hearsay?
• Is the electronic evidence relevant?
• Can it pass the test of authenticity?
• Is the ESI offered the best evidence?
• Is any probative value of the ESI outweighed by unfair prejudice?

Hearsay

Determining whether ESI is hearsay can be confusing.

First, determine whether the ESI is “computer-generated.”  Computer-generated records generally do not constitute hearsay because when records are entirely self-generated by the internal operations of the computer, they do not constitute a statement of a person.  In that situation, the admissibility of such data should be determined on the basis of the reliability and accuracy of the process used to create and obtain the data (hopefully something opposing counsel will be ill prepared to argue).  Some examples of computer-generated records are: automated telephone calls, computer enhanced photographic images, computerized testing scores, automated teller receipts, and temperature and other environmental sensor readings.

If the ESI is not computer-generated, the evidence must be introduced through traditional means.  Simply because the ESI comes from a smart phone or computer does not mean you need to use different techniques to introduce the evidence.  As with any evidence, begin by asking “Is the ESI really hearsay?”  For instance, under Rule 801(d), ESI can be construed as an admission by the party-opponent or a prior statement by the witness and, therefore, not hearsay.

It is advisable to argue that the ESI should come in under several exceptions to bolster your argument and get the Court to issue a clear ruling in case you need to appeal the decision.  Furthermore, you can assert that the ESI is not offered for the truth of the matter asserted, but is needed to attack credibility of a witness.  Under this argument, you will have to concede that the evidence does not come in substantively, but that’s a small price to pay when you get the Court to hear the damaging ESI.

In my experience, the easiest way to introduce ESI is by using the hearsay exceptions such as present sense impression, state of mind or excited utterance. (see State v. Davidson, 163 N.H. 462 (2012)).  The NH Supreme Court has only addressed the issue of introducing ESI on a few occasions.  However, the Court has allowed the introduction of text messages under the state of mind exception.  Finally, the NH Supreme Court has also addressed whether text messages can be admitted under Rule 404(b), holding that text messages could be admitted under Rule 404(b) as relevant to show the party’s controlling behavior.

The other evidentiary requirements will be discussed in further posts

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