Attorneys frequently use emails as evidence. Ordinarily, one party offers emails that they either sent or received, and that they accessed from their own account. But what if a party offers an email that they neither sent nor received, and the email came from somebody else’s account? In that event, an attorney would need to analyze whether the email was lawfully obtained and whether the email would be admissible in court. Considerations include wiretap statutes, statutes governing electronically stored information, e-mail provider guidelines, relevance, authentication, and hearsay, each of which is explored in greater detail below.
State (ORC 2933.52) and federal (18 USC 2511-2512) “wiretap” statutes prohibit the “interception” of electronic communications. In those statutes, “interception” means a contemporaneous acquisition while the communication is in flight. The statutes distinguish communication in flight and communication in storage. If the communication is acquired while in flight, the wiretap statutes may apply, and if the communication is in storage, the wiretap statutes probably don’t apply. For example, malware may contemporaneously copy and acquire an email’s data as it is being sent. On the other hand, an email parked in an inbox is not in flight.
Other state (ORC 2913.04) and federal (18 USC 2701) statutes prohibit the unauthorized access of stored electronic communications, which may include an email parked in an inbox. The key issue is whether the access is authorized or unauthorized.
A client may tell an attorney they had authorized access, but the attorney should ask questions. When were they given authority? How were they given authority? Was the authority implied or explicit? Was the authority ever revoked?
Email providers publish their own rules governing access to email accounts. For example, Google’s Terms of Service require users to take reasonable steps to keep their Google accounts secure and prohibit users from abusing services by accessing services in fraudulent or deceptive ways. Likewise, Yahoo’s Terms of Service prohibit users from obtaining unauthorized access to its services or data.
Even if an email is lawfully obtained, it still must be relevant to be admissible evidence. Pursuant to Rule 402, all relevant evidence is generally admissible. Emails are often relevant because they contain admissions, proof of knowledge, proof of intent, contemptuous behavior, and other relevant information.
Evidence must be identified and authenticated. Pursuant to Rule 901, evidence is authenticated by evidence sufficient to support a finding that the evidence is what its proponent claims.
The person who obtains an email may be able to testify, with personal knowledge, and explain how and when they gained authorized access to the email account, how and when they gained authorized access to the email in question, that they are familiar with the email addresses of both the recipient and sender of the email, and how they saved the email for its use as evidence.
There may be an objection to the admission of an email on the basis of hearsay, pursuant to Rule 802. A hearsay analysis must be fact specific. An email may be inadmissible hearsay, or it may not be hearsay for different reasons. For example, an email may be offered not to prove the truth of the matter asserted in the content, but rather to prove that a communication happened at a given time. Or an email may be a non-hearsay prior statement by a witness or a non-hearsay admission by a party opponent.
An attorney must perform a careful analysis before using an email from another person’s account as evidence. There are multiple authorities to consider. Key issues are whether the person who acquired the emails had genuine authorized access, and whether they can satisfactorily authenticate the emails with personal knowledge.
Wiete practices family law at Wiete Law Office in Cincinnati. His mission is to provide clients with strategic legal guidance so they can navigate court and move forward. He’s been practicing law since 2010 and has been a member of the CBA since 2021.