Page 9 - May June24 Report

daughter@school.edu
Hypothetical Example
• Imagine a domestic relations matter with custody and parenting time issues. Mother and F
parties to the case. Their daughter regularly uses the following email account: daughter@ ather are both
• When the email account was given to Daughter b school.edu.
gave Mother a packet of information abou y her school administration, the school administration also
The packet of information stated that Dau t Daughter’s email account, including the username and password.
• During t ghter’s parents have authorized access to the email account.
he course of litigation, Mother monitored Daughter’s email account. Mother found
between Daughter and Father in which they made plans and discussed custody a several emails
Mother saved those emails and provided them to her attorney. nd parenting time issues.
• Mother lawfully obtained the emails because they were not intercepted in flight and beca
authorized access to them. use she had
• The emails are relevant because they directly relate to the issues being litigated.
• To authenticate the emails, Mother’s testimony can explain how she obtained them, her
of the email addresses of both senders and recipients, and how she saved the emails. personal knowledge
• The emails contain non-hearsay admissions from a party opponent (Father).
• In this hypothetical example, Mother may be able to use these emails as evidence.
Authentication
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 knowl- edge, and explain how and when they gained authorized access to the email account, how and when they gained authorized access to the email in ques- tion, 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.
Hearsay
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.
Conclusion
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 autho- rized 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.
ETHICAL QUANDARY?
The CBA is proud to offer ethical guidance to Greater Cincinnati attorneys through our Ethics Committee's hotline.
May
Martin S. Pinales 513-252-2733 Russell Gribbell 513-891-2100 Tim Maloney 513-519-1891
June
Joseph W. Borchelt 513-455-4014 Mark A. VanderLaan 513-543-1582
The members of the CBA Ethics & Professional Responsibility Committee listed above are available
to help you interpret your obligations under the Ohio Rules of Professional Conduct. Questions posed should be framed hypothetically and should relate to your own prospective conduct. The committee also accepts requests for written opinions.
THE REPORT | May/June 2024 | CincyBar.org
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