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Text messages, while a very common form of communication in 2018, have a less-developed body of case law governing their use as evidence than emails. Text messaging became available to the U.S. public around 1993 and slowly became popularized through the late ‘90s and early 2000s, until, in 2007, Americans sent and received more text messages per month than phone calls. See Christine Erickson, “A Brief History of Text Messaging,” Mashable.com (Sept. 21, 2012). A little over 10 years later, the U.S. courts are still working out exactly how to deal with all of the evidence created by this method of electronic communication. This article will examine the existing body of case law nationally, and how New York state courts have interpreted it in the few instances where challenges to admissibility or authentication have resulted in written decisions.

Of course, there is a fulsome body of case law governing the authentication and admissibility of emails. However, a fundamental difference between an email and a text message exists in that when one sends an email, one typically also re-transmits the entire chain of messages below it, creating a single record that contains an entire conversation. Not so with text messages, where each text message is a discrete transmission and record. This creates an interesting question when offering text messages as evidence: Does each individual text message in a chain require a separate foundation and basis for admissibility? Examination of available case law suggests that the answer is yes.

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