Communication and the Admissibility of Text Messages in Florida
Like many of you out there in business, we get a lot of phone calls and text messages from our customers. We have to keep clear lines of communication open with our suppliers. And you better believe we want to keep clear lines of communication between ourselves and our attorneys too! Here at Sunflower Pool & Patio, we don’t skimp on keeping our lines of communication open. Whether it’s September – back-to-school season – or high swimming season in July, we stay connected with customers for pool maintenance and service jobs. But you don’t have to be a pool and patio expert to know that keeping clear lines of communication is vital to trust, cooperation, and downright business success! Staying connected is important for every business, and having a record of that communication can nip a lot problems in the bud!
Florida is a long way from Kansas. Texting and social media make up a huge part of our business communication. And for those of you who don’t already know, Florida residents may have a leg up on Kansas citizens when it comes to the admissibility of text messages. The Florida Supreme Court recently considered some text message evidence that was not originally saved in the original form but instead was available in different forms. A helpful article from The Frugal Engineers titled “The Admissibility of Text Messages in Florida Courtrooms” will give you the lowdown on this recent decision. But the key point we want to get across is that in Florida courts a party may be able to show a message was authored or sent from a device, even if there’s no hand-writing verification, as long as there’s other evidence to do so. Basically, in Florida courts, text messages could be proven to be “authored” or “sent” even if they cannot be physically produced in court.
What if we’re on the other side of Missouri? In Kansas, what would happen if a similar case arose and the evidentiary issue is that the message purportedly authoring or sending an electronic message might not able to be physically produced in court (or a party might not be able to admit it or authenticate it)? Well, that question doesn’t appear to have been tested yet in Kansas, but we can speculate on a few things and chip in some advice. First, there are many ways a party can authenticate a message without the authorship or send verification we’re familiar with nowdays. For instance, a party can present witness testimony or evidence to establish the party’s regular practices for storing or maintaining electronic messages, how the message was retrieved, and that the message should have been stored or maintained so that the message could be retrieved. Sound like a mouthful? Well, it just means a party can establish the message is what it claims to be, and a court may find that to be enough. Another way to authenticate a message is through a witness’s or deponent’s admission. In that case, a person who states that the message was from them may be able to lay the necessary foundation for the message’s admissibility in court.
Texting the waters before you make that big capital investment Your business, like ours, may not be ready for an evidentiary battle over admissibility in courtrooms, whether that’s in Kansas or otherwise. Trust us, we’d prefer to win your business because we delivered quality products and superior service, and not because we outperformed in a courtroom battle of evidentiary admissibility. But if you want to hedge your bets, be sure to preserve any electronic communication regularly produced in the course of business. By following those same “regular practices for storing or maintaining electronic messages, how the message was retrieved, and that the message should have been stored or maintained so that the message could be retrieved,” in a worst-case scenario there may be enough of a foundation to authenticate the message so that it can be admitted as evidence. While we wouldn’t want to dwell on the potential for litigation, sometimes it’s better to bet on a text message being admissible than to bet on your business being adversely affected by an adverse finding!