Litigation has been transformed over the past decade or so by e-discovery. An entire industry has developed around the collection and presentation of emails, text messages, social networking posts, etc. In large commercial cases, it is not unusual to have an outside vendor handling this evidence from discovery through trial. But what about a different kind of case, for example, a contested domestic violence hearing, where the victim, often acting pro se, comes to court with a smart phone containing allegedly threatening text messages, and seeks to introduce those messages into evidence. They only exist on the phone, so there is nothing that the victim can physically introduce into evidence, and therefore no documentary evidence of the messages that can be reviewed on appeal. How then does a court accept evidence from a plaintiff's cell phone into the court record?
This was precisely the question facing the court in E.C. v. R.H., a recent unpublished Law Division decision. In that case, plaintiff alleged that defendant harassed her through unwanted texts, social media posts, and voice mails. She asked the court to enter a restraining order against defendant. At the start of the hearing on her application, plaintiff sought to introduce evidence of several allegedly harassing communications that were stored on her cell phone. The court observed that the court rules, which were designed to handle tangible evidence, were not designed to handle a request like this: "[S]ome of the more traditional methods of introducing evidence into court do not address the specialized needs and practical problems which may arise when parties come into court and seek to introduce information stored on their cell phones directly into evidence." The Court further observed that this problem was exacerbated in the domestic violence context, which involves "expedited summary proceedings [and] self-represented litigants who have little or no legal training at all."
The court noted that information stored on cell phones, like the text messages that plaintiff sought to introduce in E.C. v. R.H., is often significant in domestic violence matters because it is sometimes the only — or, at the very least, the best — evidence of the alleged harassment that compelled the victim to seek a restraining order. But, evidence stored on a cell phone creates a number of practical problems for the court, including that "it is impractical if not impossible to preserve [a] specific image [on a smart phone] for the record, unless there is also a hard copy printout" and that voice mail messages are often indecipherable. Moreover, for the court and each of the litigants to have the opportunity to review the information contained on a smart phone, the device has to be passed around the courtroom. This is awkward to begin with but becomes even more so when the parties are subject to a temporary restraining order that prevents them from having contact with one another. In such a case, the court observed, "a sheriff's officer might literally have to sit in the middle of the parties' respective tables and pass the cell phone between them and the judge for viewing by each part and the court."
To solve these logistical and evidentiary problems, the court adopted a very low-tech solution. If the parties wished to introduce emails, texts, social media messages, or pictures that were stored on their cell phones, they first had to print them out, and then come to court with the emails, messages, posts, or pictures in "duplicate hard copy form." Similarly, any audio recordings had to be duplicated onto a CD or cassette, and any video recordings had to be duplicated onto a DVD. The court justified this decision by, among other things, concluding that "the concept of a party preparing and providing copies of relevant texts, emails and other writings in tangible form, preferably in triplicate for simultaneous use by the parties and the court, is sound and logical."
Although E.C. v. R.H. involved a domestic violence hearing, issues like this often arise in small claims court, municipal court, and landlord-tenant court, which also frequently involve pro se litigants with little or no legal training. Litigants in those situations would be wise to adopt the same approach the court adopted in E.C. v. R.H. and bring hard copies of any texts, emails, social media posts, or photographs that they wish to introduce into evidence.