Email as evidence

byTranquil G.S. Salvador III

 
 October 7, 2022, 12:15 am
 
“The authenticity of the electronic document or email must be established
by an affidavit of the person having direct personal knowledge of the facts
or knowledge based on authentic records”
More than two decades ago in a case I was handling, the opposing counsel
on direct examination of his witness asked the witness to identify an email.

I immediately raised an objection because the witness was neither the

sender nor the addressee of the email. The judge sustained my objection.

However, the opposing counsel rephrased and insisted on his question

being answered. Similarly, I objected; but this time the judge overruled my
objection. The lawyer then proceeded to ask him questions regarding an
email that he neither prepared nor received.

I raised continuing objections to the line of questioning of the lawyer. This

was my first encounter with an email as evidence.

Apparently, the judge and lawyers were then still unsure on how to
authenticate an email as there were yet no rules governing this type of
communication.

In 2000, the Philippine Congress passed Republic Act 8792, also known as
the Electronic Commerce Act.

The authentication procedures outlined in RA 8792 will have to be followed

until such time when the Supreme Court will have provided the appropriate
rules for authenticating and validating electronic documents, data
messages, and signatures (see Section 11, RA 8792).

On July 17, 2001, the Philippine Supreme Court approved the “Rules on
Electronic Evidence,” which took effect on August 1, 2001. The Rules
stated that it shall apply in all civil actions and proceedings, as well as
quasi-judicial and administrative cases (Rule 1, Section 2, A.M. 01-7-01-
SC).

The succeeding year, the coverage of the Rules on Electronic Evidence

was expanded to include criminal cases (A.M. 01-7-01 dated September
24, 2002).

An electronic document is admissible in evidence if it complies with the

rules on admissibility prescribed by the Rules of Court and related laws
(Rule 3, Section 2, A.M. 01-7-01-SC).

Electronic documents shall include “writing, document, record, instrument,

memorandum or any other form of writing” (Rule 3, Section 1, A.M. 01-7-
01-SC).

An electronic document shall be regarded as the equivalent of an original

document if it is a printout or output readable by sight or other means,
shown to reflect the data accurately (Rule 4, Section 1, A.M. 01-7-01-SC).

“When a document is in two or more copies executed at or about the same

time with identical contents, or is a counterpart produced by the same
impression as the original, or from the same matrix, or by mechanical or
electronic re-recording, or by chemical reproduction, or by other equivalent
techniques… accurately reproduces the original, such copies or duplicates
shall be regarded as the equivalent of the original.” (Rule 4, Section 2, A.M.
01-7-01-SC)
Copies or duplicates of electronic documents shall not be admissible to the
same extent as the original if: (a) a genuine question is raised regarding the
authenticity of the original; or (b) in the current circumstances it would be
unjust or inequitable to admit a copy in lieu of the original (Rule 4, Section
2, A.M. 01-7-01-SC).

The fact that an electronic document is in two or more copies, executed at

or about the same time with identical contents, or is a counterpart of its
original does not in itself prove its authenticity.

Separately, it will have to be authenticated by: (a) evidence that it has been
digitally signed; (b) appropriate security procedures as may be authorized
by the Supreme Court or by law; or (c) evidence showing its integrity and
reliability (Rule 5, Section 2, A.M. 01-7-01-SC).

In the 2019 Amendments to the Rules on Evidence, the Supreme Court

fine-tuned the Rules on Evidence to capture the definition of an “original”
and “counterpart” under the Rules on Electronic Evidence:

(a) [I]f data is stored in a computer or similar device, any printout or other
output readable by sight or other means, shown to reflect the data
accurately, is an “original.”

(b) A “duplicate” is a counterpart produced by the same impression as the

original, or from the same matrix … by mechanical or electronic re-
recording, or by chemical reproduction, or by other equivalent techniques
which accurately reproduce the original (Rule 130, Section 4, 2019 Rules
on Evidence) .

The interest in electronic documents and emails heightened during the

COVID-19 pandemic.

Lawyers, clients, and other court users were not able to personally file and
make official dealings in courts. Fortunately, the Supreme Court anticipated
this when it provided in the Rules that email filing and service will be
allowed “as the parties may agree on, or upon direction of the court” (Rule
13, Section 9, 2019 Rules on Civil Procedure).

To be able to present, identify, mark, and authenticate an email, the

proponent or presenting party must understand the mechanics of an email.

The email would normally have lines for the recipient, sender, the other
recipients (copy furnished), the subject of the email, and the body of the
email.

The email address indicates the username and the hostname

(username@hostname), the latter of which includes providers such as
Gmail, Yahoo, Hotmail, official hostnames for government, companies, and
institutions, among others.

If an email printout is identified, marked, and authenticated by a competent

witness with no question raised regarding its integrity, then the email
printout may be admitted in evidence.

If there are issues about: (a) another person logging in to the sender’s
email and using it himself; (b) hacking or hijacking of another person’s
account through spyware, viruses, or other malicious software; or (c)
different recipients or parties to email communications receiving different or
altered messages, then further authentication may be required by the
judge.

In case the source of the email cannot be determined or if it was forwarded

from unknown or bogus senders, verification of the chain of custody in
handling the email may be resorted to by the judge.

In other foreign jurisdictions, cryptography is employed in email

communications, where “the parties use a key which encrypts or scrambles
the message” (Evidentiary Foundations, Edward J. Imwinkelried).
The authenticity of the electronic document or email must be established by
an affidavit of the person having direct personal knowledge of the facts or
knowledge based on authentic records.

The affidavit must also affirmatively show the competence of the affiant to
testify on the matters contained therein (Rule 9, Section 1, A.M. 01-7-01-
SC).