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View Full Version : this may sound a little dumb, but..



Capt. 'rold
09-16-2006, 10:40 PM
(would probably differ by judgement), but could icq logs and emails be used in legal battles?

I can see the side not wanting them admitted arguing that they can be altered; what would the chances be of a judge allowing them as evidence?

Just curious :)

A.J. Comparetto
09-18-2006, 06:48 AM
(would probably differ by judgement), but could icq logs and emails be used in legal battles?

I can see the side not wanting them admitted arguing that they can be altered; what would the chances be of a judge allowing them as evidence?

Just curious :)
E-Mails, ICQ logs, and IM logs can be the subject of discovery demands just like any other documents. Sometimes discovery demands can be resisted based on applicable privileges (such as the attorney-client privilege) or other appropriate grounds.

As for whether the foregoing can be admitted into evidence depends upon the particular facts and circumstances of each case. Generally speaking, documents must be authenticated (meaning: the proponent of a given document must come forward with enough evidence to show that a given document is what it purports to be) and there must be a logical connection between a given document and a particular fact or point that a proponent wishes to prove. In addition, the document must no be merely cummulative (meaning: piled up on a dump truck) or offered with the aim to confuse the trier of fact (such as the jury, a judge or arbitrator) or result in undue prejudice to another party (meaning: the prejudice or harm to another party from such things as confusion of issues, ridicule, scandal, etc....must not outweigh the relevance ......the logical connection between a given document and a fact or point that a party wishes to prove).

The foregoing is nothing more than a very general thumbnail sketch offered for purely educational/informational purposes. The reader is strongly urged to not rely on this general overview and do his or her own research. Google is usually a good start for research. Many law libraries also subscribe to Lexis or Westlaw.

Good luck!

Capt. 'rold
09-18-2006, 12:48 PM
thanks for the reply :)

Not sure if it's relevant or not, but the kind of case I'm thinking about would be along the lines of business partners trying to negotiate a settlement on their own, and the communication breaking down. Upon it going to court, one party might say "I never said or agreed to that!" and the other party might (?) be able to refer to the email or icq logs and reply "yes you did and here is the proof".

I think icq logs can be easily altered, but I can't imagine how hotmail emails can. Would they hold more weight in the fact that they can't be altered?

Thanks again!

A.J. Comparetto
09-19-2006, 07:10 AM
thanks for the reply :)

Not sure if it's relevant or not, but the kind of case I'm thinking about would be along the lines of business partners trying to negotiate a settlement on their own, and the communication breaking down. Upon it going to court, one party might say "I never said or agreed to that!" and the other party might (?) be able to refer to the email or icq logs and reply "yes you did and here is the proof".

I think icq logs can be easily altered, but I can't imagine how hotmail emails can. Would they hold more weight in the fact that they can't be altered?

Thanks again!
Unfortunately, I don't think that I can answer your particular questions with a simple and general explanation. Stated another way, I am unable to go beyond my previous posting without carefully considering the application of various laws to your particular facts and circumstances. If given your specific circumstances, you feel that you need to obtain legal advice, I would urge you to consider contacting an attorney who has experience in such areas of the law as commercial litigation, the rules of evidence and court procedure.

XxXotic
09-19-2006, 09:48 AM
AJ, how is there any way to prove that the "logs" have not been tampered with? They typically save as .txt files and can easily be altered using notepad or wordpad. If used as "discovery" how can they differentiate what was actually said by the person and what might have been edited into the conversation after the fact?

A.J. Comparetto
09-19-2006, 09:20 PM
AJ, how is there any way to prove that the "logs" have not been tampered with? They typically save as .txt files and can easily be altered using notepad or wordpad. If used as "discovery" how can they differentiate what was actually said by the person and what might have been edited into the conversation after the fact?
One way that comes to mind is forensic analysis of the subject computers/devices by a qualified expert. You may wish to do a Google search for an expert in this field. Another possibility is to check out the court file (including filed discovery materials and evidence) in civil as well as criminal cases. An experienced attorney may be able to give you leads to court files involving specific civil or criminal cases. Also, you may wish to observe actual hearings or trials where such evidence is presented. This is a start. There are other possibilities. Follow the bouncing ball.

Please understand that the foregoing is nothing more than a general overview of this topic for educational/informational purposes only. If you feel that you have a need for specific legal advice or guidance, I would strongly suggest that you consult privately with an attorney who is experienced in such areas as commercial litigation, the rules of evidence, and court procedure.

Good luck to you!

XxXotic
09-19-2006, 09:49 PM
One way that comes to mind is forensic analysis of the subject computers/devices by a qualified expert. You may wish to do a Google search for an expert in this field. Another possibility is to check out the court file (including filed discovery materials and evidence) in civil as well as criminal cases. An experienced attorney may be able to give you leads to court files involving specific civil or criminal cases. Also, you may wish to observe actual hearings or trials where such evidence is presented. This is a start. There are other possibilities. Follow the bouncing ball.

Please understand that the foregoing is nothing more than a general overview of this topic for educational/informational purposes only. If you feel that you have a need for specific legal advice or guidance, I would strongly suggest that you consult privately with an attorney who is experienced in such areas as commercial litigation, the rules of evidence, and court procedure.

Good luck to you!Thanks for the info, didn't need it for anything other than to satisfy my curiosity. I had wondered how things like that would be handled in court or even if they'd be admissable.

Appreciate your time :)

Capt. 'rold
09-19-2006, 10:41 PM
Having backed up my own icq files, they're pretty simple to edit - open the xml files in dreamweaver and you can edit them, and I'm imagining it would show the edits in the history.

The whole thread is just a curiousity for me too...the past few months we've seen some nastiness with some of the people we deal with, and if we ever got caught in a similar fight, it's nice to know what we can and can't use.

I'm thinking if I were in the position of a judge (god-forbid! lol), I would look at, say, icq logs versus hotmail emails and I think there's quite a difference in what should or should not be able to be entered into evidence.

It's all a hypothetical thing, just good stuff to know :)

A.J. Comparetto
09-20-2006, 07:03 AM
Thanks for the info, didn't need it for anything other than to satisfy my curiosity. I had wondered how things like that would be handled in court or even if they'd be admissable.

Appreciate your time :)
You are very welcome!

Good luck!

A.J. Comparetto
09-20-2006, 07:04 AM
Having backed up my own icq files, they're pretty simple to edit - open the xml files in dreamweaver and you can edit them, and I'm imagining it would show the edits in the history.

The whole thread is just a curiousity for me too...the past few months we've seen some nastiness with some of the people we deal with, and if we ever got caught in a similar fight, it's nice to know what we can and can't use.

I'm thinking if I were in the position of a judge (god-forbid! lol), I would look at, say, icq logs versus hotmail emails and I think there's quite a difference in what should or should not be able to be entered into evidence.

It's all a hypothetical thing, just good stuff to know :)
Thank you very much for your feedback!

rockslammer
09-22-2006, 05:44 AM
Not sure if it's relevant or not, but the kind of case I'm thinking about would be along the lines of business partners trying to negotiate a settlement on their own, and the communication breaking down. Upon it going to court, one party might say "I never said or agreed to that!" and the other party might (?) be able to refer to the email or icq logs and reply "yes you did and here is the proof".

Generally, pre-trial negotiations for settlement any contract, written at least, are not generally admissible in the instant case before the bench.

AJ and I discussed this with regard to interrogatories with their opening up issues for another case pending or in the future. However, when the negotiations are prior to the commencement of an action in a matter, I don't believe any settlement attempt or negotiations to amend a contract would be admissible. The agreed contract and its covenants, conditions as well as the performance and/or breaches of the parties to it become the issues for the trier of fact. With this in mind, I would think that the ICQ logs would become irrelevant unless they could be shown to have created an amendment to the original contract itself. Oral waiver ( or other, ICQ logs ) of breach might be of some consequence if the offending party returns to performance and the other party(s) honor the waiver they offered. Without a written agreement, stating that any waiver constitutes no further future waiver of the same, the scope of the waiver is fair game to be contested.

If it is an oral contract and not written, I suppose anything might fly -- Best argument I can think of for putting contracts in writing and having a lawyer or someone experienced, draft the contract itself.

A.J. Comparetto
09-22-2006, 08:38 AM
Generally, pre-trial negotiations for settlement any contract, written at least, are not generally admissible in the instant case before the bench.

AJ and I discussed this with regard to interrogatories with their opening up issues for another case pending or in the future. However, when the negotiations are prior to the commencement of an action in a matter, I don't believe any settlement attempt or negotiations to amend a contract would be admissible. The agreed contract and its covenants, conditions as well as the performance and/or breaches of the parties to it become the issues for the trier of fact. With this in mind, I would think that the ICQ logs would become irrelevant unless they could be shown to have created an amendment to the original contract itself. Oral waiver ( or other, ICQ logs ) of breach might be of some consequence if the offending party returns to performance and the other party(s) honor the waiver they offered. Without a written agreement, stating that any waiver constitutes no further future waiver of the same, the scope of the waiver is fair game to be contested.

If it is an oral contract and not written, I suppose anything might fly -- Best argument I can think of for putting contracts in writing and having a lawyer or someone experienced, draft the contract itself.
Points well taken!