Admitting Electronic Evidence

The law often struggles to maintain pace with constantly changing technology, particularly when authenticating electronic evidence.  Gadekar v. Zankar, (Tyler Court of Appeals) (12-16-00209-CV), demonstrates the pitfalls.  In a final divorce trial the Husband, representing himself, attempted to enter a 231 page document showing e-mails mostly between the parties.  The Husband had not removed the handful of e-mails that 3rd parties has sent in the string and the Court thus refused to admit all the e-mail since they were not segregated.  Additionally, the Husband attempted to admit instant messaging between the parties.  He testified that he recognized the phone number from which the message emanated.  The trial court sustained the Wife’s hearsay objection.  The court of appeals refused to overrule the trial court noting that Husband had not obtained a business record or offered other evidence that the messages came from the Wife.  The appeals court indicated that the content of the messages or distinctive characteristics for the communication might be sufficient in lieu of a affidavit from the provider.