It is remarkable how few New York state court decisions exist addressing the authentication of and hearsay objections to electronically stored information (ESI), and that may be because litigators do not appreciate how vulnerable ESI can be to attack and how to properly frame and then support opposition to its use when it has been relied upon as a basis for a dispositive motion. The relatively recent New York cases discussed below may serve as a starting point for New York litigators when arguing evidentiary issues concerning ESI.
In People v. Moye, 2016 NY Slip Op 50669(U), 51 Misc. 3d 1216(A), 38 N.Y.S.3d 832 (Sup. Ct. Queens Co. March 31, 2016), a defendant challenged the admission of an instant message sent via Facebook from an account identified as the defendant’s on the basis of its insufficient authentication. The trial court held that authentication can be established “circumstantially by appearance, contents, substance, internal patterns or other distinctive characteristics of the evidence.” The trial court then admitted the instant message “given all the circumstances in the case” on the basis that the victim testified to the defendant’s screen name and his photograph and where the contents of the message made no sense unless it was from the defendant. The “screen shot” provided:
