• Nevada Decision Highlights Text Message Authentication Issues
  • May 21, 2012 | Author: Matthew J. Bakota
  • Law Firm: Buckley King A Legal Professional Association - Cincinnati Office
  • Text messages certainly aren’t new technology, but in April 2012, the Supreme Court of Nevada pointed out “new analytical challenges” courts face when considering the admissibility of a text message. In a criminal case, Rodriguez v. State, --- P.3d ---, 2012 WL 1136437, 128 Nev. Adv. Op. 14, the Supreme Court of Nevada held that the state had not properly authenticated 10 of 12

    text messages admitted at the defendant’s trial, because the state failed to sufficiently demonstrate that the defendant was the author of the messages.

    For purposes of civil litigation in Nevada and other jurisdictions, the Rodriguez decision highlights the care that must be taken during pretrial discovery to ensure that text messages can be

    properly authenticated at trial. Evidence that a text message was sent from a cellular phone bearing the telephone number assigned to a person will not be sufficient in Nevada and other states to identify the person as the author of the message. Therefore, if authorship is contested, pretrial discovery efforts likely will need to go beyond simply obtaining cellular phone records that link name and telephone number, but provide little other information to support authentication.

    The Supreme Court of Nevada reasoned that cellular telephones are not always exclusively used by the person to whom the phone number is assigned. As a result, additional evidence may be required to corroborate the identity of the actual sender of a text message. Circumstantial evidence to corroborate the sender’s identity “may include the context or content of the messages

    themselves, such as where the messages contain factual information or references unique to the parties involved.” Additionally, the proponent of the text message likely will be required to explain the purpose for which the text message is being offered.

    To avoid problems or surprises when attempting to authenticate a text message at trial, civil litigants can consider pretrial discovery such as requests for admissions regarding authorship of pertinent text messages, or possibly even deposition or trial subpoenas to a non-party author whose text messages are critical evidence for trial.