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Using Emails from Another’s Account as Evidence
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THE REPORT | May/June 2024 | CincyBar.org
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.
Wiretap Statutes
By Kyle Wiete
Electronically Stored Information Statutes
Other state (ORC 2913.04) and federal (18 USC 2701) statutes prohibit the unauthorized access of stored electronic communi- cations, 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?
Provider Guidelines
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.
Relevance
Even if an email is lawfully obtained, it still must be rele- vant 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.
State (ORC 2933.52) and federal (18 USC 2511-2512) “wiretap” statutes prohibit the “interception” of electronic communica- tions. In those statutes, “interception” means a contemporaneous acquisition while the communication is in flight. The stat- utes 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.