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I supported Toymods
Location:
Perth, Western Australia
Registered:
December 2002
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Email Validity in Legal Proceedings?
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Thu, 27 January 2005 15:48
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OK, so we've all heard and read second hand infomation as to the legality and validity of email to prove and disprove facts, but what are the legal definitions and requirements to using email as evidence?
Would prefer direct info, over your best friend's, sister's boyfriend's second cousin, twice removed type infomation, and if you have legal training I'd appreciate an acknowledgement to this before reading your reply, to sort the wheet from the chaff?
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Location:
Perth
Registered:
August 2003
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Re: Email Validity in Legal Proceedings?
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Thu, 27 January 2005 17:22
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any specific information you need to know??
what type of facts are you trying to prove? cause there is alot of different things i can think of atm?
proving an email belongs to someone?
proving and email was sent from it's actual source?
proving the information of a email?
....
i got lots of information but need more specific details 
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I supported Toymods
Location:
Perth, Western Australia
Registered:
December 2002
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Re: Email Validity in Legal Proceedings?
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Fri, 28 January 2005 00:50
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Yep lets start with those three questions - I basically want to know what I need to show in an email to have it accepted as a statement of fact between two parties?
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Location:
Brisbane
Registered:
February 2003
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Re: Email Validity in Legal Proceedings?
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Fri, 28 January 2005 01:45
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did you locate/procure the email yourself - or was it provided as a result of a discovery or search process?
one involves yourself ascertaining to the veracity of the email, the other requires the party responding to discovery to certify that it is a true record.
If discovery is available to you, i would suggest you attempt to locate the email this way - if they respond in the negative (despite you having log files and other documents and statements proving otherwise) you can later make a mockery of other responses in court or motions submitted to the court.
Don't rely on the email alone, you'll need person(s) to testify that the email was sent or delivered - or even to make a statement as the information in log files or extracted from someone's email database.
e.g. this is a copy of the email my client sent your honour, this is the log files from the company server on that date, this is his sworn statement regarding writing and sending it, this other statement is from the IT support person pointing out the successful sending of the email on that date, and this CD is the log iles from the 30 days after sending indicating that the companies ISP did not return the email undelivered, ... surely all of these people and log files are telling the same story which is that the email was sent and was delivered successfully...
step one:
backup, secure and certify a copy of all your email log files now
backup, secure and certify a copy of your mailbox now
get an IT consultant to analyse and certify the contents of the message headers of the offending email (if it was sent to you)
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Location:
Brisbane
Registered:
February 2003
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Re: Email Validity in Legal Proceedings?
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Fri, 28 January 2005 02:24
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resources on the web:
commonwealth act:
<http://www.austlii.edu.au/cgi-bin/disp.pl/au/legis /act/consol%5fact/ea197180/?query=title+%28+%22com monwealth+evidence%22+%29>
see section 7 on Documents produced by computers
most state evidence and interpretation acts are similar to the feds.
oznetlaw
<http://www.oznetlaw.net>
factsheets and searchable
from <http://www.oznetlaw.net/facts.asp?action=content&a mp;a mp;categoryid=228>
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9. Admissibility of electronic documents as evidence
Commonwealth evidence legislation applies in all Federal Courts and extends to Commonwealth records. A document includes any copy, reproduction or duplicate and includes any part of such document, copy, reproduction or duplicate.(18)
A party may give evidence in court by tendering the original of a document. In courts governed by the Commonwealth Evidence Act, where the document is an article or thing on which information is stored and cannot be used unless a device is used to retrieve, produce or collate it, the relevant document produced by that device is admissible (eg computer output read from a CD).(19)
Documents comprising business records (including electronic records) are admissible provided the fact asserted in the document is made either by a person who had (or is reasonably supposed to have had) personal knowledge of the fact or, made on the basis of information supplied directly or indirectly by such a person.(20)
A fact contained in a document that is a record of a message transmitted by electronic mail or by a fax, telegram, lettergram or telex is admissible. It is uncertain if this provision extends to internet documents such as Hypertext Mark-up Language (HTML) forms, TCP / IP log data and other digital formats.(21)
A document produced by a device or process is presumed to be authentic unless other evidence suggests the device or process was not working properly at the time of producing the document. For example, a document produced by a computer is presumed to be an authentic copy of an electronic record in the absence of evidence suggesting the computer was not working properly at the time of producing the document.(22) Website operators should keep evidence that documents produced by computer have been accurately and validly produced in case such documents are impugned by the other party tendering evidence of computer malfunction.
The evidence legislation of the States and Territories generally facilitates the admission of electronic records into evidence in court proceedings, however, variations exist in relation to admissibility and weight in certain cases.
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institute of criminology (Federal govt)
<http://www.aic.gov.au/publications/htcb/htcb004.ht ml>
Standards Australia, HB 171-2003 : Guidelines for the management of IT evidence
<buyware>
international discussion of HB1711-2003
<http://unpan1.un.org/intradoc/groups/public/docume nts/APCITY/UNPAN016411.pdf>
Recent WA discussion on the review of th Evidence Act
<http://www.lrc.justice.wa.gov.au/RevCCJS-p92/final report/finalreporthtml/ch20evidence.html>
Auscert conference (coming up in may)
<http://conference.auscert.org.au/conf2005/abstract s.php>
scrolldown to paper titled 'AFP Case Studies - Absent Security'
unfortunately not proceedings are available - not surprising as conference has not been held.
query: is this a criminal case (have you been charged by a government or court agency) or have made a complaint to an investigative agency that's not the police or AFP? or a civil matter which you are considering litigating?
[Updated on: Fri, 28 January 2005 02:29]
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