This article is aimed at clients working with collaborative practitioners, therapists, or counsel who need to document all their text message and email conversations for evidence or as reference (in the case of parent coordinators, for example), a summary of what to document, and how to document so that what they've captured is admissible in court, if required.
You’ve recently (or maybe not so recently) split from your ex. If that ordeal isn’t bad enough on its own, you now find yourself on the receiving end of a torrent of text messages, emails and phone calls from them. You assumed the communications would slow down then stop, but now it’s been days, weeks or months of relentless contact, and you need it to stop.
Maybe the messages are threatening. Maybe it’s a mix of “I love you’s” and abuse. Maybe it’s just constant contact about the kids, your finances or the process of divorce itself. Whatever the case, you want it to stop. To this end, you’re either in the throes of legal proceedings (as in divorce) or you’re considering it (as in abuse, cyber-stalking or criminal harassment), and you’ve either been told to document all your communications, or you know you must.
What’s important to document, and how do you do it in a way the court will accept? Here’s the guide you’ve been looking for.
In a legal context, everything that passes through your phone is potential “mobile evidence,” “digital evidence” or e-Discovery (as in “electronic”). Text messages, chat app messages, email and other social media messaging are now common and accepted forms of evidence in family and criminal court and beyond. They’re used to support filing claims (nearly 100% of high conflict divorces have electronic evidence attached), get restraining or protection orders or to file criminal harassment or cyber-stalking charges.
What Should You Document?
In a word: Everything.
That means every communication they send you, and every response you send in return. The goal is to present as complete a “communications story” as possible. 20 text messages where your only response is some variation of “stop contacting me” tells a very different story than 20 messages where you’re losing your temper and counter-threatening for 20 more, for instance.
Are those angry texts embarrassing? You bet, but you still need to document them so that your lawyer can attempt a defense (“who wouldn’t lose their temper under the circumstances?”). Without them, your lawyer could be caught unawares mid-court proceeding. The best case in that event is that opposing counsel paints you as a liar; the worst case is that you simply lose your legal motion right there.
Capture every text message, every email, every Facebook messenger and ideally you’ll record every phone call too. If you can’t record phone conversations, a printout of your phone log is the next best thing: 20 phone calls from your ex between 2:00pm and 3:00pm that last a minute each, tells a story. 20 missed calls every hour on the hour between midnight and 4am for multiple nights in a row tells another story (and constituted harassment).
Relevance and Authenticity
With all of that, like most evidence, text messages, emails and phone logs aren’t automatically admissible in court. For that to happen, you and/or your lawyer must prove your evidence is both relevant and authentic.
1. Relevance. In legal speak, evidence that’s relevant must be “of consequence to the determination” of the case. This means no one will care about a message from your ex saying your son ate Pop-tarts for dinner, say, but the message could be used to prove (a) who had possession of the child that day and/or (b) if a parent is following the child’s dietary restrictions or not. Whether a message is relevant is entirely dependent on the context and facts of an individual case.
2. Authenticity. You need to prove that the messages you’re admitting as evidence are authentic: did they actually come from the person you say they came from? Have you deleted or edited anything? Were they received when you say they were? At a very minimum, to prove authenticity your mobile evidence must have:
· the time and date clearly visible in each communication that’s sent or received (note “today” at the top of each message is not sufficient); and
· the contact information of the other person. Ideally this would not just be their name, but their phone number or email address, as any name can be ascribed to any number.
In cases that cross over into criminal court or in cases where opposing counsel is especially aggressive, you may have to produce a “raw data” report of your communications. This would capture all the source code, definitively proving where communications originated, including things like a computer’s ISP address, for instance.
How to Save Digital Evidence
Screenshots are the most common form of documented mobile evidence. They’re free and they’re easy: threatening texts? Instead of responding, take a screenshot. 30 missed called from an abusive partner? Take a screenshot of that. Screenshots get saved in your photo folder.
Screenshots aren’t a great option if you’re receiving a lot of messages. If there are 20, 30 or more messages a day, especially if the messages aren’t especially short, taking 100 screenshots a day can start to feel onerous at best and like a full-part-time job at worst. This is when you might want to look at other documenting options, like:
There are numerous apps and programs for both Android and iPhone that will save or “extract” text messages from your phone and download them onto your computer as a pdf. Some are free, while others have fees attached. If you’re managing a high volume of text messages, a text extracting program is worth it all day long.
If texts come in every day for weeks or months, or you’re receiving a high volume of text messages, phone calls and emails altogether, then you might want to try:
For a fee, PwrSwitch does two things:
1. It automates the collection and consolidation of text, email and phone logs between you and another person from the time of sign-up going forward, saving it all in sequence in a time and date stamped, word-searchable document on the cloud; and
2. It will collect and consolidate as much text and email history into a single, time and date stamped, word-searchable document on the cloud, as you have stored in your phone. Years worth, if necessary.
This means a couple of things. Firstly, you can “set it and forget it,” so that you don’t have to remember to screenshot or extract every message. Not only that, but if you lose or damage your phone or accidentally delete a key message it’s still secure as evidence in the cloud. Furthermore, if messages are so nasty you’d just rather not have them on your phone at all, you can purposefully delete them from your device but they’ll still be available if and when you need them later.
Secondly, PwrSwitch recognizes that sometimes it takes you awhile to figure out what’s going on. In the early going, is easy to make excuses for someone’s behaviour: “they’re kind of emotional right now; this will pass when they calm down.” After a few weeks or months, however, when you’re still getting as many messages every day and ready to take legal action, the penny drops. It’s a lot of work to go back and document every communication. That’s where the ability of PwrSwitch to pull a historical record is a life-saver. Only available for Android right now, watch for the iPhone version in early 2020.
Protect yourself by documenting everything, whether with a screenshot, a text extractor or PwrSwitch – it’s sometimes the only way to hold people accountable and make the communications stop (or at least slow down). The better your mobile evidence, the better your outcomes are likely to be.