Electronic mail, or e-mail, has become a basic communication tool and as such can verify a multitude of situations and agreements that may be relevant as evidence in a trial. But how does a judge know if a printed e-mail provided as evidence in a trial has been modified by the party who provides it?
The Civil Procedure Act in Spain recognizes the validity of electronic evidence as long as the evidence is not contested … and this is where the problem lies.
An e-mail is no more than an document that can be edited and manipulated by an interested party. So how can we guarantee the authenticity of an email submitted as evidence?
First, we should avoid creating suspicions of a possible alteration of the evidence. Therefore, you should not commit the mistake of saving any changes after opening the e-mail or attachments.
Second, we should guarantee the other party’s ability to inspect the procedure used to obtain the evidence. This is done through a suitable method of extraction and conservation, which is called chain of custody. Ideally, we should get the services of a notary to make a deposit of the evidence and attest to the extraction procedure.
Moreover, to ensure that the evidence has not been altered between the time of extraction and storage and the time it is submitted in court, you can use encryption tools that provide a feature called HASH, so that through relatively short characters, it can be shown that the deposited file is identical to the file submitted as evidence at trial. If you had changed a comma with a space, the string of HASH characters would have changed.
Third, notwithstanding that a copy is furnished on paper to facilitate the task of the judge, the original evidence must be provided to the court in electronic format. That is to say that the contents of the email must be extracted:
– The message and its source code
– Technical headers, which provide information about the server through which the e-mail has been sent.
In e-mail managers like Outlook mail, it is sufficient to copy the e-mail from the inbox and paste it into the format we want to provide, either a CD or flash drive.
Despite all this, there will always be the possibility that the other party sows doubt in the judge as to whether the message, attachments or headers were altered before the notarial deposit.
This, indeed, is no different from the case in which a person contests a signed document alleging that the signature has been counterfeit. In the same way, forensic examination can be requested to convice the judge of the authenticity of the evidence. Through forensic analysis of the extraction and custody of the evidence, the judge can be convinced that the evidence is authentic.
Although it seems that we are not yet accustomed to its use, the use of advanced electronic signature in e-mails would be the safest to use this kind of evidence. We fear that until there is no obligation to use advanced electronic signature systems in electronic communications, this possibility will be virtually deserted, despite its advantages.
And we have to recognize that it is not at all comfortable to use these systems. In a world where the most used passwords are password and 123456, what prevails is comfort.
José Francisco Lendínez & José Carlos Moratilla
This article is not considered as legal advice