What Does it Take for a Printout of Instant Messages to be Admitted into Evidence? Accurate Reflection.

What Does it Take for a Printout of Instant Messages to be Admitted into Evidence? Accurate Reflection.

When a defendant has been charged with rape in the second degree, it is likely he will make a push to exclude any conversations between him and the alleged victim from the trial.

That is exactly the position Chabcery finds himself in. Chabcery’s wife has gotten a hold of conversations taking place between Chabcery and his underage niece-in-law. She handed over to the police a memory card containing a log of messages that were sent through MSN’s instant messaging system.

The officers then printed out this message log and the People want to admit this into evidence. But Chabcery wants to do what he can to make sure those (likely) damaging messages do not see the light of day. He argues that only the original log originating from the MSN server itself is admissible because the server is the original storage source. The People argue that, actually, the memory card is the original source, so an unaltered printout qualifies as an original.

Well the court actually says that both parties are wrong regarding the law. In fact, the originality of ESI is determined by whether the printout accurately reflects the information it purports to show, not by the location where the information is stored.

The Court then says that whether or not the printout is an accurate reflection is directly related to the authenticity of the printout. So how is authenticity proven? Well, that is where Federal Rule of Evidence 901 comes in. That Rule states that testimony indicating that a printout is what it is claimed to be would be enough to establish authenticity. Evidence of the process or system used to create the printout that shows it has produced an accurate result would satisfy the Rule as well.

The important thing to keep in mind here is that the proponent of this printout only needs to make a prima facie showing of authenticity. That is all that is required to get the printout admitted into evidence. If a prima facie showing is made, then it is ultimately up to the jury to decide on the evidence’s authenticity.

In the case against Chabcery, there was “substantial” evidence of the message log printout’s authenticity. A detective was called in to testify about how he created the printout. He told the court that all he did was insert the memory card from Chabcery’s wife into his computer. He then opened the log in its text file format, and simply pressed print. He says he did not alter the log in any way, and Chabcery did not present any evidence contradicting this testimony.

Based on the detective’s step-by-step explanation of how he opened the message log and created the printout, the court was satisfied that the People had made a prima facie showing of the printout’s authenticity. Therefore, the printout is admissible at trial.

The takeaway here is that it does not require much to authenticate ESI. Regardless of where the information was originally stored, as long as the printout or other readable version of the information is an accurate reflection, it will be deemed to be an authentic copy and will not be inadmissible on that basis.

Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office.

Want to read more articles like this?  Sign up for our post notification newsletter, here

Comments (3):

  1. Logan this is a great article and very current. It is good to know that it does not require much to authenticate ESI. Printouts are great for getting a quick snapshot of important e-Discovery. This is an important case about authenticity and Federal Rule of Evidence 901.

  2. The outcome of this case may be appropriate given the context of the situation, however, the process by which the messages were extracted from the original may not always be so clear in the future. The ESI’s authenticity could be compromised by the very officer doing the printing, and thus, the testimony itself would not be credible. Nevertheless, the printout would be admissible, even if it was secretly altered, which may be troubling.

  3. I agree with the court’s decision in this case that the admissibility of ESI should depend on whether the evidence accurately reflects the information it purports to show. If the court held otherwise, the potential consequences would be an increase in the cost of ediscovery and the exclusion of reliable evidence. I am curious to know what happened after the court determined the People made prima facie showing of the printout’s authenticity and the printout was therefore admissible at trial. Would the defendant argue to the jury and call expert witnesses in an attempt to refute the authenticity of the message log printout?

Leave a Reply

  • Find an eLesson

  • Register for Post Notifications

    Subscribe to receive updates whenever a new eLesson is published.

    Manage Subscriptions
  • Let Us Blog Your Event!

    eLessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic. In fact, organizations and event coordinators often feature eLessons Learned as their official eDiscovery blog. Fill out our simple registration form to have eLessons Learned be the official blog of your organization or event.

    Register Now
  • Recent Praise

    The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.

    Robert Ambrogi

    Legal Tech Blogger and creator of LawSites

    Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others.

    Laura A. Zubulake

    Plaintiff, Zubulake v. UBS Warburg

    Click here to see more.