Next week, oral argument will be heard in Commonwealth v. Koch, a case in which the
Pennsylvania Supreme Court is confronted with a question that is
increasingly important: When to admit a text message into evidence
The question matters because electronic messaging –
such as text messages or instant messages – is a
significant and growing source of potential evidence. In 2010, an
estimated 6.1 trillion text messages were sent
(that's over 200,000 messages per second). Attorneys now
realize that a key piece of evidence is an exchange of text or
instant messages instead of an e-mail or an old-fashioned
When seeking to introduce a text or instant message at trial,
one of the biggest evidentiary hurdles is establishing
authenticity. (FRE 901). State and federal courts across the
country have been applying FRE 901 and its state rule equivalents
to text and instant messages.
How do you show that a text message from Joe Smith is a text
message from Joe Smith? The answer is not as simple as "it
came from Smith's phone number." This is no
different than what is required to authenticate a handwritten
letter. A letter from Mary Jones may bear her signature, but
that signature could be forged. A court would likely require
the proponent produce something beyond the letter itself as
evidence such as a witness who could identify her signature.
Similarly, the developing case law across the country says that
something more is needed for text messages and instant
messages. Federal and state courts are grappling with the
question of what that "something more" can be. Most
commonly (and unsurprisingly), courts favor authentication by means
of testimony from either the sender or recipient of the message (People v. Agudelo). In Koch, the
Superior Court held that the text messages at issue were not
properly authenticated because there was no confirming testimony
from the senders or recipients of the disputed messages and no
contextual clues within the messages themselves that revealed the
identity of the sender. Interestingly, the court also rejected the
idea that the defendant's physical proximity to the cell phone
when it was seized was probative of the defendant's authorship
of the text messages made days or weeks earlier.
It will be interesting to see whether the Pennsylvania Supreme
Court agrees with the lower court's analysis or opts for a
different standard of authentication. Regardless of the
court's answer, however, the safest way to get a text or
instant message admitted into evidence will be to produce the
sender or recipient of that message at trial.
In a June 20 decision, the Texas Supreme Court applied the economic loss rule to preclude a direct claim for negligent misrepresentation by a construction contractor against an owner's architect based on flawed design documents.
In a recent post, we set forth our views on why, with some forethought, traditional bifurcation—i.e., trying liability for the underlying tort, compensatory damages, and liability for punitive damages in the first phase and, if necessary, the amount of punitive damages in a second phase—can be a beneficial procedural safeguard for defendants.
Judge Conti of the Northern District of California recently issued a decision denying class certification in a consumer class action against The Clorox Company involving claims arising from the marketing and advertising of Fresh Step cat litter (In Re Clorox Consumer Litigation, Case No. 12-00280-SC.