Law Tips: Texting and Electronic Evidence

It’s important to consider both the value of and the pitfalls involving electronic messaging for your clients. Our Family Law expert, David Roellgen, Kolb Roellgen & Kirchoff LLP, Vincennes, Indiana, provides timely advice in his presentation for the 2012 Family Law Institute. I am pleased that Dave has agreed to share his expertise in “Texting and Electronic Evidence” on Law Tips:

In the wonderful world of social media it is important to note that our clients, friends and family are increasingly using all manner of social media, including Facebook, Twitter, Tumblr, Instagram, Pinterest and others. It is all fun and games until there is a problem in the marriage and people want to erase their electronic presence on the net.

Text messages are especially troublesome. It is a rare case these days where clients are not either receiving texts from the estranged spouse or sending them.  They are usually quite colorful and oftentimes threatening. They all happily report that they have saved their text messages so that they can be used as evidence.

Actually reproducing these text messages in a useable format that can be introduced within the parameters of the rules of evidence is very difficult. And of course those with unlimited text message plans sometimes press send before fully thinking about the ramifications.

There are apparently two ways to preserve text messages. One, as soon as your client receives a text message , they could go to a certified court reporter and have them transcribe and certify the transcription from screen to page. This gives you a witness, but is largely impractical. Additionally, although the court reporter could verify what he or she typed from the client’s phone, they have no way of verifying who the sender was. The court reporter can testify to actual possession of the phone, scrolling through all of the texts and transcribing them exactly as they are found on the phone.

Second, get a letter and subpoena out to the cellular phone company immediately. A person cannot obtain the text messages even from his or her own phone without a subpoena. On average, text messages are only kept in the system for about 72 hours, depending upon the provider. After that they are gone. Thus they are very different than other types of phone records that may go back for months or years.  And clients can easily obtain those, usually through a phone call.

Remember that time is of the essence in the letter and subpoena for the text messages. The correspondence will have to remind them to hold the messages in the system until the subpoena has been complied with or they will be routinely deleted.

I imagine that by the initial client interview, it may be too late to educate your client about the danger of using text messaging during the course of the case, no matter how convenient it is or ubiquitous in society. This do’s and don’ts list would include emails and voicemail which create often good evidence for the other side and evidence against you.

Thanks again to Dave Roellgen for outlining these current technology concerns for family lawyers. Perhaps the instantaneous nature of today’s communications should give us all some pause.  We might stop to consider a rather old piece of advice…..Count to ten!

Mr. Roellgen’s CLE presentation includes a full compliment of relevant family law “hot topics.” You can take advantage of his and other experts’ advice through ICLEF’s Online Seminar or Video Replay Seminars of the Annual Family Law Institute by Clicking Here.  Or review our upcoming CLE calendar for other family law offerings by Clicking Here.

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Our Law Tips faculty member:
J. David Roellgen is a partner with Kolb Roellgen & Kirchoff LLP, Vincennes, Indiana. Having enjoyed the practice of law for over 33 years, Dave was educated at Vincennes University, Indiana State University and Indiana University-Indianapolis Law School, JD, cum laude, 1979.  He is a past president of the Knox County Bar Association, a member of the Indiana State; Illinois and American Bar Associations; Fellow, Indiana Bar Foundation; Court of Military Appeals; Retired LTC, Indiana Army National Guard, last serving as the Staff Judge Advocate for the 38th INF. DIV. (MECH), and is City Attorney, City of Vincennes, 1992-1995; 2001- 2007; and 2012-present.  Mr. Roellgen has contributed generously to the advancement of the legal profession in Indiana through ICLEF presentations over a number of years.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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