ADMISSIBILITY OF ELECTRONICALLY STORED
INFORMATION ("ESI")
For admission, party must show: (1) ESI is relevant (2) authenticate it (3) address hearsay
(show that it is non-hearsay or an exception) (4) address probative value and unfair prejudice. (The
Admissibility of Social Media Evidence; Judge Paul W. Grimm, Chief U.S. Magistrate, USDC,
MD Maryland; 39 No.1 Litigation 20, Westlaw)(hereinafter identified by *)
EMERGING ISSSUES IN FLORIDA EVIDENCE
Charles W. Ehrhardt
Ladd Professor Emeritus
Florida State University
ELECTRONIC EVIDENCE
I. Hearsay
A. Definition—(Is it Hearsay?)
Wade v. State, 156 So. 3d 1004, 1024-25 (Fla. 2014)(Cell phone records indicating
defendant’s phone had made calls from certain cell towers were not hearsay. “[T]rial
counsel did not act unreasonably by failing to raise a hearsay objection to this testimony.
As recognized by the Eleventh Circuit Court of Appeals in United States v. Lamons, 532
F.3d 1251 (11th Cir.2008), phone company call lists are not out-of-court statements by a
declarant. The Eleventh Circuit reasoned: `We have no difficulty concluding that the
statements in question are the statements of machines, not statements of persons.... [T]he
relevant point is that no human intervened at the time the raw billing data was “stated” by
the machine—that is, recorded onto Sprint's data reels.’”).
Gayle v. State, 216 So.3d 656 (Fla. 4th DCA 2017)(A document which was created by a
machine which extracted the data and calls from a mobile phone was not hearsay because
it was not a statement made by a person. No foundation had to be laid under 90.803(6).
The decision noted that it was only addressing whether a foundation had to be laid under
90.803(6) and did not address whether the data and calls had been authenticated. The
decision also found that the text messages from the defendant were admissible under
90.803(18).).
Avilez v. State, 50 So.3d 1189 (Fla. 4th DCA 2010)(A computer generated report of
electronic-key card swipes for a door lock was not hearsay).
Bowe v. State, 785 So. 2d 531, 532–33 (Fla. 4th DCA 2001) (“An e-mail ‘statement’ sent
to another is always subject to the limitations of the hearsay rule.”).
1
Means v. Cullen, 297 F. Supp. 2d 1148, 1151 (W.D. Wisc. 2003) (Contents of email sent
by psychologist was inadmissible hearsay.).
United States v. Ferber, 966 F.Supp. 90, 97 (D. Mass. 1997) (Internal Merrill Lynch
email message recounting conversation with defendant was inadmissible under FRE
803(6) because there was no business duty to make and maintain the record.).
B. Exceptions
1. Admissions
Jean-Philippe v. State, 123 So. 3d 1071 (Fla. 2013) (Text messages from defendant's
phone were hearsay but admissible under section 90.803(18)(Admission of a party)
Gayle v. State, 4th DCA, April 2017 (Extraction report generated from victim's cell
phone, with text messages between defendant and victim, including statement by
appellant that he was having sex with victim. Victim's testimony that appellant sent the
message permits admissibility under 90.803(18). Appellant also argues extraction report
is hearsay. Court holds that extraction report not hearsay, as it is created by machine
extracting from a phone, not a statement from a person. Court likens to a photograph.
Case cites Jean-Phillipe.
2. Business Record
Yisreal v. State, 993 So. 2d 952 (Fla. 2008) (Computer print out of letter from
Department of Corrections inadmissible under 90.803(6). Computer printout of Crime
and Time Report admissible under 90.803(8).).
Cardona v. Nationstar Mortg., LLC, 174 So. 3d 491 (Fla. 4th DCA 2015)(Employee’s
testimony about the contents of banks business records was hearsay when the records had
not been admitted into evidence.).
Landmark Am. Ins. Co. v. Pin-Pon Corp., 155 So. 3d 432 (Fla. 4th DCA 2015)(“[T]he
fact that a witness employed all the `magic words’ of the exception does not necessarily
mean that the document is admissible as a business record.”
In suit against insurer for hurricane damage, error to admit as business record of
architect a cost analysis performed by insured's general contractor. “Apart from the
contractor's code upgrade cost spreadsheet, the remaining documents in Exhibit 98
consisted largely of subcontractor invoices, subcontractor proposals, and governmental
permit documents…. The architect could not testify as to when 25 of the 26 documents
were made. And he had no information as to whether the person who made the
documents had knowledge or received information from a person with knowledge. While
it was not necessary for Pin–Pon to call the person who actually prepared the business
records, we find that Pin–Pon did not establish that the architect was either in charge of
the activity constituting the usual business practice or was well enough acquainted with
the activity to give the testimony. Although the documents in Exhibit 98 might have
2
qualified as the general contractor's business records, the mere fact that these documents
were incorporated into the architect's file did not bring those documents within the
business records exception. In short, Pin–Pon failed to lay the necessary foundation for
the admission of Exhibit 98 as a business record.” ).
Ira Green, Inc. v. Military Sales & Serv. Co., 775 F.3d 12, 20 (1st Cir. 2014)(Chain of
emails was not admissible under FRE 803(6) because “the 2012 e-mails described what
supposedly occurred in 2011. This lack of contemporaneity puts the exhibit outside the
compass of the business records exception. And the proffer was doubly flawed: the
record contains no evidence that Walker (the author of the email) had the requisite
personal knowledge….).
a. Loan Payment History—Generally.
An employee of the current servicer frequently has no knowledge of the record-keeping
system or process used by prior servicers and therefore cannot lay the foundation under
90.803(6) for the records maintained by the prior servicer. See Holt v. Calchas, LLC, 155
So.3d 499 (Fla. 2d DCA 2015); Burdeshaw v. Bank of New York Mellon, 148 So.3d 819
(Fla. 1st DCA 2014); Hunter v. Aurora Loan Services, LLC, 137 So.3d 570 (Fla. 1st
DCA 2014).
b. Verification.
The testimony of an employee of a current servicer can lay the foundation for the records
of a former servicer if the testimony establishes that the current servicer independently
verified the accuracy of the former servicer’s records regarding the payment history and
details the procedure used to verify the accuracy of the payment histories. Sas v. Fed.
Nat. Mortg. Ass'n, 165 So. 3d 849 (Fla. 2d DCA 2015); Bank of N.Y. v. Calloway, 157
So.3d 1064 (Fla. 4th DCA 2015).
Channell v. Deutsche Bank Nat. Trust Co. 173 So.3d 1017, 1019-20 (Fla. 2d DCA
2015)(Successor business relying on predecessor’ business records does not by itself
establish the records are admissible as the successor’s business records. “Mere reliance
on these records by a successor business, however, is insufficient to establish
admissibility….In this case, no testimony was offered as to whether the loan transaction
records sought to be introduced as business records had been checked or verified in any
manner or whether the witness had any knowledge of the prior servicer's record-keeping
system.”).
c. Business records—other
Morrill v. State, 184 So.3d 541 (Fla. 1st DCA 2015)( In prosecution for trafficking in
methamphetamine. no abuse of discretion in admitting the National Precursor Log
Exchange (“NPLEx”) report pursuant to 90.803(6) based on the declaration of the record
custodian of NPLEx. FDLE has contracted with NPLEx, an electronic recording
keeping system, and retailers to report to the NPLEx all sales of products containing
3
ephedrine or pseudoephedrine, which are essential ingredients in manufacturing
methamphetamine. Decision apparently on basis that record custodian did not have to
have personal knowledge of the matter recorded and requires that the person be familiar
with the record-keeping system of business.)
II. Authentication
Generally, burden is on proponent/offering party to authenticate - it is what it claims to
be. "Authenticity is a two fold test: the proponent must show that the [ESI] came from the
source from which the party claims it retrieved it (such as a Facebook account), and that it was
authored or posted by the person the proponent claims authored or posted it (the Facebook
account owner). (citation omitted.) The proponent must establish a sufficient foundation that
will amount to a prima facie showing of authenticity such that a [fact finder] could find that the
evidence more likely than not is authentic. (citation omitted.) To do so, a party typically
provides testimony corroborating the authenticity of the proposed evidence. Testimony must be
from an individual who has personal knowledge of the authenticity of the posting." For
websites, verification from website sponsor as to authenticity may be required.
People v. Beckley, 110 Cal. Rptr. 3d 362 (Cal. App. 2010) (“The issue, however, was not
whether the computer's printer could be trusted to reliably print out what was on the
computer's screen or stored on some site but whether the content of what was on the site
was reliable.”).
A. Electronic Evidence is generally not Self-Authenticating.
Dolan v. State, 187 So. 3d 262 (Fla. 2d DCA 2016)(Booking photograph from law
enforcement website not self-authenticating. “Any argument that a copy of an online
document, even a document from a government website, can be admitted into evidence
over objection to prove an essential element of a third-degree felony without any
predicate testimony to establish its authenticity or to prove the truth of its content, i.e.,
that it is a battery judgment involving the defendant, borders on the frivolous.”).
Nationwide Mutual Fire Insurance Co. v. Darragh, 95 So.3d 897 (Fla. 5th DCA 2012)(In
action to recover uninsured motorist coverage, printout of United States government
website which allows individual to estimate further military benefits was not admissible
because it was not authenticated. Websites are not self-authenticating. The printout was
also inadmissible hearsay.)
Sun Protection Factory, Inc. v. Tender Corp., (M.D. Fla. 2005) (“[W]ebsites are not self
authenticating.”).
Commonwealth v. Williams, 926 N.E. 2d 1162 (Mass. 2010) (error to admit MySpace
messages which were not authenticated).
People v. Givans, 845 N.Y.S. 2d 665 (N.Y. App. Div. 2007) (error to admit text messages
which had not been authenticated).
4
St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, 2006 WL 1320242 (M.D. Fla.
2006)(discussion of the authentication of websites taken from www.archive.org,
sometimes called the Internet Archive or the Wayback Machine to show how the sites
have appeared at various times in the past).
Discovery. Nucci v. Target Corp., 162 So.3d 146, 153-54 (Fla. 4th DCA 2015)(In slip
and fall action, photographs in plaintiff’s Facebook account were discoverable when
request was limited to photographs relevant to plaintiff’s damages claim. “[P]hotographs
posted on a social networking site are neither privileged nor protected by any right of
privacy, regardless of any privacy settings that the user may have established.”).
B. Methods of Authentication
1. Personal Knowledge.
Griffin v. State, 19 A.3d 415 (Md. App. 2011) (Contents of MySpace page could be
authenticated by testimony that the person authored by the person and that the contents
were hers).
People v. Beckley, 110 Cal. Rptr. 3d 362 (Cal. App. 2010) (Photograph on social
networking site could be authenticated by testimony of person who was present when the
photograph was made that it was an accurate depiction.).
2. Circumstantial Evidence.
Symonette v. State, 100 So.3d 180 (Fla.4th DCA 2012)(Circumstantial evidence was
sufficient to authenticate text messages on defendant’s cell phone were sent by defendant
to get-away driver.). Photos of text messages authenticated and admissible.
United States v. Siddiqui, 235 F.3d 1318, 1322–23 (11th Cir. 2000) (e-mails
authenticated not only by defendant's e-mail address but also by inclusion of factual
details known to defendant that were corroborated by telephone conversations).
United States v. Tank, 200 F.3d 627, 630–31 (9th Cir. 2000) (author of chat room
message identified when he showed up at arranged meeting).
Tienda v. State, 358 S.W. 3d 633 (Tex. 2012) (Evidence was sufficient to authenticate
that social media webpage was authored by defendant. Opinion contains broad citations
from other jurisdictions relating to the authentication of social media, text messages
emails and other electronic evidence.)
State v. Eleck, 23 A.3d 818, 822-823 (Conn. Ct. App. 2011) (“An electronic document
[e.g., email, text messaging, and networking sites like Facebook] may continue to be
authenticated by traditional means such as the direct testimony of the purported author or
5
circumstantial evidence of “distinctive characteristics” in the document that identify
the author…The defendant does not argue that the Facebook messages were selfauthenticating. Typically, electronic messages do have self-identifying features. For
example, e-mail messages are marked with the sender's e-mail address, text
messages are marked with the sender's cell phone number, and Facebook messages
are marked with a user name and profile picture. Nonetheless, given that such
messages could be generated by a third party under the guise of the named sender,
opinions from other jurisdictions have not equated evidence of these account user
names or numbers with self-authentication. Rather, user names have been treated
as circumstantial evidence of authenticity that may be considered in conjunction
with other circumstantial evidence. See, e.g., Commonwealth v. Purdy, 459 Mass. 442,
450 (Mass. 2011) (evidence that electronic communication originates from e-mail or
social networking website that bears purported author's name is not sufficient alone to
authenticate it)”).
State v. Lumarque, 44 So.3d 171 (Fla. 3d DCA 2010) (Images and text messages from
defendant's cell phone held properly authenticated by State's forensics expert, pursuant to
properly issued search warrant; immaterial that ex-wife could not identify each of the
messages. Does not matter how these images found their way onto defendant's cell
phone.)
3. The reliability of the process or the system that produced the evidence.
Authentication of a result by evidence describing a process or system used to produce a
result and showing that the process or system produces an accurate result. This method of
authentication may be used when the accuracy of a result depends on a process or system
which produces it. See Bryant v. State, 810 So.2d 532 (Fla. 1st DCA 2002)(Silent witness
theory to authenticate surveillance image.)
Lerner v. Halega, 154 So.3d 445, 447 (Fla. 3d DCA 2014)(Still photographs taken from
surveillance tapes which were identified as images of a person were not admissible
when the underlying surveillance images were not authenticated by the silent witness
theory or by testimony of a person who observed the matters depicted in the tapes.).
Santana v. State, 2016 WL 2744998 (Fla. 4th DCA 2016)(Error to admit audio recording
of conversations between defendant and confidential informant when there was no
evidence that the tape was an accurate recording of the conversations. “Although the
State did introduce testimony supporting the identity of the speakers on the recording, it
did not introduce evidence that the recording was a fair and accurate representation of
the conversation that occurred.”).
United States v. Espinal-Almeida, 699 F.3d 588, 609 (1st Cir. 2012)(Authentication of
GPS and software generated evidence and their accuracy did not required expert
testimony in drug trial; rather testimony of someone knowledgeable, trained, and
experienced in analyzing GPS devices was sufficient to authenticate. ).
6
RESOURCES
Faigman, Modern Scientific Evidence (West 2016-17 edition)(Westlaw MODSCIEVID)
Reference Manual on Scientific Evidence (Federal Judicial Center and National
Research Council) (Westlaw RMSCIEVID)
7