View Full Version : Can e-mail be evidence?
June 9th, 2004, 04:14 AM
Does anybody know whether e-mail messages can be evidence in a court of law, for instance in a situation where no contract has been signed, but verbal agreements exist, backed up by e-mail confirmations?
June 9th, 2004, 06:03 AM
I'm NOT a lawyer, but here are some observations anyway:
- There are untold numbers of news reports regarding people all over the world being convicted of crimes at least in part based on e-mail and other electronic evidence. Just yesterday, I saw a news article on the prosecution's intent to use cell phone text message records in the trial of the horrible Laci Peterson murder case. I think I recall that even Bill Gates had his own internal Microsoft e-mails used against him in one of the government's anti-trust cases.
- At least in the US, and I would imagine in most European countries, civil cases have a lower burden of proof ("preponderance of evidence") than do criminal cases ("beyond reasonable doubt"). So if one can satisfy the court that the e-mail record is legitimate (possibly easy to fake, if one had a desire to do so), one could expect it to be pretty good evidence.
Sad that a verbal agreement without paper to back it up doesn't seem to mean much these days. Apparently many people have forgotten that "a man is only as good as his word."
June 9th, 2004, 06:21 AM
"a man is only as good as his word."
Ahh, people are just forgetful, you know.
Of course, like you say, e-mail can easily be forged and that's what makes it hard to use as evidence. But together with other documents and photographs...
As always, it's a case of a "client" not wanting to pay, blaming stuff on me that I'm not responsible for.
Perhaps it's interesting for others:
Client writes e-mail, asking me to organise a fashion photography session here in Spain for him (he's German). He also asks me to organise a casting, because he wants "street models".
We send him pictures of a casting we do for him and he chooses two models. He needs 6. One of the chosen models pulls out, so we only get him one model. Now he blames us for not supplying him with 6 street models and wants to recuperate his costs for flying in 5 professional (!) models from Germany.
He knew 10 days ahead of time what the situation with the models was, took no action and flew in his own people from Germany when we started shooting.
I think that he is just trying to swindle us into paying for his expensive models.
Difference: 9500 dollars US.
We never signed any contracts, it was a hectic period, the guy was really easy and nice on the phone "Don't worry" - which is a phrase that should always set off all the alarms.
Now with the e-mails we want to prove that we warned him about not having the models for him and that it was his own responsibility to provide them.
A photographer can always veto models, but it's unfair to then offload the costs of other models on the casting orrganiser....
I get angry writing about it..
June 9th, 2004, 06:34 AM
I've got to go to work momentarily...but on just a quick read...
From what you describe, it sounds like he wants money out of you, rather than the other way around. You know, I'd just try to let it rest at that -- cut my losses -- and not work with the guy again.
I'm betting he will just do the same. But, if by some small chance he does actually try to take it to court, produce your emails ... presumably he'd show up in court with nothing more than his own side of the story, which wouldn't be in line with the emails.
If he shows up with fake emails, then it would be a criminal act on his part that the government might be interested in dealing with -- with the help of the ISP, on whose servers the archive of the emails undoubtedly sits.
Gotta go, but as someone who's considering starting a small video business for my "retirement career", will be interested to see how things work out.
June 9th, 2004, 07:27 AM
Sorry Pete, I wasn't clear about that point: the photographer owes us the money for our work. He has paid just about all of the costs we made on the production, so we are still out of our pay, plus a bit.
Thing is, you come across all sorts of clients, especially working internationally.
Even customers that were OK before can turn out to be bad, because of something happening in their company. But us guys are always at the bottom of the line, getting paid last, if ever, etc. if we're not careful.
I have adopted more of a "pay up front, but a little less" policy lately. Makes you sleep (and work) better.
It may be a long while before I have something final to report in this matter.
June 9th, 2004, 07:55 AM
Yes, email can be evidence. It must be authenticated, as with any other evidence.
June 9th, 2004, 08:07 AM
Paul, how does one authenticate e-mail as evidence?
June 9th, 2004, 09:55 AM
I am NOT a lawyer but I have heard from a lawyer stating that emails can and have become evidence. This also goes for sexual harassment, web jokes, sales guarantees or promises, you name it. Be careful.
June 9th, 2004, 01:26 PM
Authentication is something that happens at the trial or at a hearing, and can be done in any number of ways, including testimony by the author, or, if that's not available, header codes in the message itself. You'd also need the person that printed it to attest it was a true copy of what was received. If the case gets to that point your lawyer will know exactly what to do. :)
June 9th, 2004, 01:47 PM
If it is worth that much money you may want to backup your hard drive, take it out and store it. Buy a new hard drive and continue working as usual.
June 9th, 2004, 01:56 PM
Paul, how does one authenticate e-mail as evidence?
As Peter said, it's really little more than getting someone to say, "This is a true and correct copy of an email that I received on my computer."
Generally, this kind of authentication will be done prior to trial, either by Requests for Admission ("Admit that the document attached as Exhibit A is an email sent by you to the Plaintiff.") or at deposition ("Do you recognize this document? "Yes" "What is it?" "It looks like an email." "Is this an email that you sent?" "I don't remember." "Look at the 'from' line -- is that your email address?" "Yes." "Look at the header information at the top -- do you have an account with Earthlink?" "Yes." "How do you usually address the plaintiff -- as 'William,' 'Big Bill,' 'Mr. Smith' or something else?" "Big Bill." "The same as appears in this email?" "Yes." "Do you have any reason to believe that you did not send this email?" "No." "Do you think you sent it?" "Yes, I think I sent it." "In your experience, is the date which appears on email that you send the date that it's actually sent?" "Yes." "Do you have any reason to believe that you didn't send this email on the date which appears on it, May 4, 2002?" "No, that's probably right." etc.)
If necessary, the custodian of records of the ISP can testify as the headers in the email, i.e. "We maintain records of all email sent through our system, and our records show that, on May 4, 2002, an email was sent at 7:35 p.m. from the Defendant to the Plaintiff."
June 10th, 2004, 06:52 AM
I'm curious, Paul - what usually happens if the receiver either denies receiving it, or the author denies writing it? Would you usually get someone from the ISP in to talk about the logs as you said, or would the jury or judge just make a credibility call?
June 10th, 2004, 09:55 AM
I've never had that happen. It's usually easy enough to authenticate an email with the author -- it's much harder to flat-out lie than most people realize.
If it was a critical piece of evidence, I'd have an expert examine the computer, have someone from the ISP testify re: logs, etc. If not, I'd authenticate it through the receiver, and try to impeach the credibility of the author who was denying responsibility.
June 10th, 2004, 12:19 PM
be sure and copy down the entire email header, along with the message... without that, it would be a lot harder to track down.
June 13th, 2004, 07:08 AM
Thanks everyone. Think I'm going to give it a go! Will post result.
June 15th, 2004, 05:46 PM
I'm a law student as it happens so here it goes, bearing in mind of course that I am studying UK law and that I'm giving you this advice off the top of my head without any research at all ;-)
Whether or not the e-mail is admissable as evidence of a contract depends largely on the evidential rules of your country's courts, and as such, is largely a procedural question. Of more interest is whether or not the communications contained in the e-mails amount to a contract. In order to establish a contract you need an offer and acceptance with valuable consideration. In other words was there an agreement that you have provided work in support of?
Let's assume that there is. Your erstwhile client is far more likely to concede the fact there was a contract and accuse you of breach/frustration in failing to meet the terms - which may or may not be implied based on statutory requirements, your e-mail correspondance and the general customs of your particular profession. Anyway, the point is that you should consult a lawyer about this, as you may end up having yourselves to argue that there was no contract in order not to be in breach of it.
Good luck with it anyhow,
June 16th, 2004, 01:55 AM
Thanks for your post!
One of the problems is that there are three countries involved: Spain (where I live and where the work was done), Germany (the country of the photographer) and Austria (the country of the photographers' agent). Since most of the correspondence, and especially that which in our view constitutes a "contract", has been with the photographer, we have contacted a lawyer in Germany and we are preparing to send him all relevant information now. His initial fee for studying the material and writing a first letter to the client is € 400, which is not too bad. A simple lawsuit would cost us a further € 1000, which if we win, will be claimable from the other party. If we lose however, we have to pay his costs, plus those of the court.
It's easy to see why many companies and free lancers will not go to court for a few thousand dollars.
To be continued...