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#CaseoftheWeek Episode 36: Authenticating Text Messages Under CRE 901

In episode 366, Kelly Twigger shares a summary of the decision in State v. Heisler, 488 P. 3d 176 (Colo. Ct. App. 2017) that was presided over by Judge Alan M. Loeb. She discusses the factual analysis required to authenticate text messages under Colorado Rule of Evidence 901, which mirrors FRE 901.

Good morning and welcome to our Case of the Week for August 17, 2021. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant, which is an online practical resource for lawyers and legal professionals engaged in electronic discovery. I am also the principal at ESI Attorneys. Thanks so much for joining me today.

As you know, if you join us each week, through our partnership with ACEDS we choose a recent decision from the case law database in eDiscovery Assistant and highlight some key issues for litigators and those involved in the ediscovery process. And try to talk about the practical implications of the case and what that means for you, your practice and your clients. You can see a link to the public link of the case in eDiscovery Assistant in the comment section of whatever platform you’re viewing us on, whether that is YouTube, Facebook, Twitter or LinkedIn.

You’ll also see a link to our 2020 Annual Case Law Report that we did in conjunction with Doug Austin at eDiscovery Today. We’ve also just over a month or so ago launched our new website. So hop on over and sign up for our blog to be able to receive the weekly Case Law Newsletter, which will have this broadcast in it every Thursday, as well as regular blog posts about all things ediscovery. We are just finishing up our series on ESI protocols, and we’ll be tackling some other topics coming up.

All right. Let’s get into this week’s case. This week’s case is a decision from the appellate court in the State of Colorado. We don’t do a lot of state decisions on #CaseoftheWeek, largely because, as we all know, case law is jurisdictional. But this one is a case of first impression on the authentication of text messages in Colorado. Because Colorado has adopted a Colorado Rule of Evidence 901, which mirrors Federal Rule of Evidence 901 regarding authentication, this is a really relevant case. It’s also very clear and concise, and it’s consistent with all the federal case law on authentication of text messages. It sets out a really nice framework that I thought would be valuable for us to go over and for you to be able to utilize as you’re considering how to handle text messages within ediscovery.

This week’s decision is from May 4th. It is from the Colorado Court of Appeals. Let’s kind of dive into the facts.

This is a criminal case in which the defendant is appealing his conviction of harassment. The victim and Heisler dated from 2010 to 2013 before they broke up. They remained in touch after they broke up for about a year.

In March of 2014, however, the victim told Heisler that she was beginning a new relationship and no longer wished to communicate with him. Heisler continued to communicate with the victim regardless of her wishes, and sent her numerous text messages and letters, although the victim remained fairly unresponsive to those communications.

In December of 2014—roughly eight months after the victim had asked Heisler not to communicate with her anymore—he traveled from Florida to Colorado and showed up at her house, uninvited and unannounced. When the victim saw him, she called the police and had him arrested. He was charged with one count of felony stalking and one count of harassment. The charging instrument alleged that both charges were acts of domestic violence, which is relevant to some of the other facts that are in the case, but not necessarily to the text messages.

After a jury trial, Heisler was acquitted of the stalking charge but was found guilty of harassment. At trial, the Court allowed the admission of the text messages sent from Heisler to the victim. On appeal, Heisler argued that the trial court aired by admitting into evidence the text messages that he sent to the victim because they were not properly authenticated under Colorado Rule of Evidence 901(a).

What’s the analysis by the Court here?

The Court looks first at the showing that’s required to authenticate text messages under Colorado Rule of Evidence 901(a). As I mentioned, that’s a matter of first impression in the State of Colorado. That CRE 901(a) requires that the evidence be sufficiently authenticated by the proponents, and authentication is, “satisfied by evidence sufficient to support a finding. That the evidence in question is what the opponent claims it to be.” The Court notes that the burden to authenticate evidence is not high; it only requires a prima facie showing. Then the Court notes that because this is a matter of first impression, it looks first to the consideration of how to authenticate email messages as well as social media posts in order to consider what are the steps that should be required for authentication of text messages. Following that analysis (which is again consistent with all the federal case law we’ve seen on authentication of email as well as social media, and those are both the items that we’ve covered on the #CaseoftheWeek previously) the Court identifies two components to the authentication of text messages under Colorado Rule of Evidence 901.

First, a witness with personal knowledge must testify that the print out of the text messages accurately reflects the content of the messages. Second, a witness with personal knowledge must provide testimony establishing the identity of the purported sender of the text messages. In order to establish that identity, you can do it one of several ways, you can use the phone number that was assigned to or associated with the purported sender. You can look at the substance of the text message as to whether or not it’s recognizable as being from the purported sender, using language or syntax that that sender usually uses in normal conversation. Three, you can look at the purported sender and whether or not they responded to an exchange in such a way as to indicate circumstantially that he or she was, in fact, the author of the communication. Four, any other corroborative evidence under the circumstances. A combination of at least two of those following four items has to be achieved in order to authenticate text messages.

The Court then goes to reiterate that the burden for authentication is not very high. Again, it’s just a prima facie showing. Applying the test of those four items to what happened at the trial court, the Court determined that the prosecutor introduced printouts of the text messages and then had the victim authenticate those messages in three different ways. First, the victim testified that she recognized the pictures of the text messages and that they were a fair and accurate depiction of the text she personally received. Second, the victim testified that she recognized the phone number as Heisler’s and that she would use that number to communicate with him. Third, the victim testified that she recognized the content of the text messages as being from Heisler.

Now, Heisler didn’t argue that the print outs of the text messages weren’t accurate representations. He didn’t say that the text messages weren’t from him, but instead, he said that the text messages were not properly authenticated because the victim deleted her responses to the text messages. The Court looked at whether that had any bearing on the authentication of the text messages, that, in fact, the responses from the victim were no longer available from the victim. First, the Court looked at the record and said that the record reflected that the prosecution presented sufficient evidence that the printouts accurately reflected the content and that Heisler had authored the text messages.

The Appellate Court notes that the victim testified that the printouts accurately reflected the text she received. She recognized the number as being Heisler’s number, and she would use that number to communicate with him. She recognized the content as being from him, and the content of the text messages included corroborative evidence that they came from Heisler.

Second, the Court said that the record showing that the text messages were admitted as evidence of text that the victim sent from Heisler, not as evidence of a conversation between the victim and Heisler. This is where you really get to the analysis on whether it matters that she deleted those responses. Because the victim’s testimony was sufficient to support a finding that the messages were from the defendant, they were properly authenticated. The fact that the victim had deleted her responses goes to the weight of the evidence and not the authenticity. Again, authenticating text messages you’ve got this prima facie standard that you’ve got to meet, and you’ve got those four steps that are set out here in Heisler to show you exactly what the things are, you need to be able to prove in certain order to be able to authenticate text messages.

What are our takeaways from this case? Well, if you’ve dealt with text messages and ediscovery, you know that they’re tricky. They represent a format that’s different than email and other unstructured data that we’re used to dealing with in ediscovery. Most of our ediscovery platforms don’t process text messages in the same way. So we come down to how do we create appropriate views of text messages for authentication and use of trial. That’s a consideration. We’ve covered cases on #CaseoftheWeek that deal with authenticating screenshots. I’ve told you that in cases we’ve had clients authenticate screenshots as long as the other side stipulates to it, particularly where they are text messages that are exchanged between both sides, and both sides have that data. Screenshots can be a perfectly acceptable way to do that.

There’s not a discussion in this case as to whether or not there are screenshots. “Print outs” is the language that’s used here that was the form that the prosecutor used to admit the information at trial. We don’t know exactly how that played out, but the point is that when you’re dealing with text messages, you need to have the authentication of those text messages in mind. You need to also consider the process by which you’re collecting them. This really comes up in play a lot more when you’ve got multiple mobile devices that you’re collecting text messages from, you’re going to need to provide an affidavit or some sort of a authentication as to how that information was collected, whose device it was collected from, what the information is, so that you can authenticate the actual existence of the text messages as well. Then you’ve got to delve into these four pieces of criteria that the Colorado Appellate Court addresses here to be able to substantiate that those are, in fact, text messages from the party that you’re asserting those text messages came from.

In civil cases where witnesses leave the company regularly, having those text messages authenticated in advance or at the early stage of the case can be hugely beneficial. We’ve all had cases in the civil context where employees leave the company, and you’ve got evidence from that employee that you’re struggling to authenticate to be able to use at trial and when you can’t have that witness come to trial. That’s a pretty common occurrence. The framework that’s set out here really provides an opportunity for you to either create an affidavit for purposes authentication, and get stipulation from the other side. You could also take deposition testimony during the witness’ deposition in order to be able to lay the foundation to authenticate that information and then read that deposition testimony at trial. Those are some ways in which you can plan for potentially having evidence from a witness that may not be a trial.

That’s our #CaseoftheWeek for this week. Thanks so much for joining me. Next week we’ll be off because we’ll be at the ILTA convention in Las Vegas, and we’ll be doing a lot of broadcast from there that will keep you updated with on our blog and on our Twitter feed. We’ll be back August 31 with another addition of #CaseoftheWeek from eDiscovery Assistant.

Remember that if you are an ACEDS member and interested in using a eDiscovery Assistant, there is a discount available to current ACEDS members and a trial for folks who are taking the ACEDS exam. If you’re interested in either of those, please drop us a line at ACEDS@ediscoveryassistant.com, and one of our team will be in touch.

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Thanks so much. Have a great week. Stay safe and help, and I’ll see you on August 31.

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