Legal Research

Email Evidence?Worth the Search?

By John Gregory

Bruni v. Bruni, 2010 ONSC 6568 (CanLII), a recent decision of the Superior Court of Justice in a family matter, noted (literally, in a footnote (23)):

In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace.

Is that your experience? Does a multiplicity of informal electronic communications help or hurt assessment of credibility? Is there some risk that the ?reams? of messages just become confusing?

Note, however, that finding the email is not enough; it has to be admitted. The British Columbia Supreme Court gave little weight to email evidence in another family dispute, Hamilton v Jackson 2009 BCSC 538 (CanLII), because it conflicted with oral testimony in court about what had happened and what had been said about it at the time, and, as the judge said (para 17):

Neither party tendered the electronic version of the email or any metadata relating to it. As this was not done in this case, I am left with conflicting versions as to what Ms. Galloway emailed to Mr. Jackson. It is possible to alter the text of an email. Ordinarily such alteration can be detected by a forensic review or simply by viewing the metadata of the email. Given the way in which emails are created and sent, I must exercise great caution in considering what they purport to contain.

The metadata might show when the message had been sent. How easy is it to alter that kind of information after the message has been sent? Presumably this support of the integrity of the message argues in favour of getting emails in ?native format?, i.e. in electronic form, not just a print-out.

Have you had problems finding or using email evidence? How did you resolve them, or what will you do next time?

P.S. The Bruni case is interesting for the number of personal comments, many of them very caustic, that the judge permits himself in the text and especially in the footnotes. I am not entirely sure that it is appropriate, though I have a good deal of sympathy for judges who have to sit through and decide disputes like the one(s) described in this case. I suspect that they should vent in the robing room and not in the reasons for judgment.

Full post as published by Slaw.ca on February 03, 2011 (boomark / email).