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Text Messages in Florida Lawsuits + Litigation

In the News • Mar 3, 2021
post about Text Messages in Florida Lawsuits + Litigation

Are those text messages that everyone sends and receives “discoverable” in your Florida litigation? In 2021, text message admissibility is important ! Maybe…………..maybe not! Whether those text messages in Florida lawsuits can be admitted into evidence is an entirely different question! Afterall, once your trial lawyer gets over the “relevance” hurdle, she has to lay a foundation and get those out-of-court statements in over an anticipated/expected “hearsay!” objection from your opposing counsel. A recent case from Florida’s 4th District Court of Appeal discusses text messages in Florida lawsuits, as well as Florida evidence and the authentication and admissibility of data and documents.

Florida Evidence & Text Messages

Has your Florida probate lawyer asked you about e-discovery? Maybe she told you to preserve all evidence and to retain all laptops, iPhones, cell phones, iPads, tablets, computers, text messages and emails. Oh, yes, she probably also told you to suspend any “self deleting” mechanisms on your electronic devices. Oh, yes, and I’m sure he instructed you not to delete any communications and documents, either. After all, you don’t want to lose any of that data which you are going to be COMPELLED to produce in your Florida lawsuit. Very good ! Great start! Now, let’s say that the other side to your Florida litigation has text messages to use against you. One question which I know your lawyer has asked you is about text message admissibility: Are your text messages admissible in your Florida lawsuit? A recent, September, 2020, Florida appellate opinion shares the secrets of how to get those text messages into evidence for your trial. Or, how to keep them out.

Text message admissibility. Boutique law firms like Pankauski Hauser Lazarus PLLC handle appeals and trials throughout Florida, including on issues like text message admissibility. “Understanding how to get documents into evidence, or knowing the proper objection, are foundations of good trial skills” says Managing Member John Pankauski.

Admissibility of Text Messages and Emails at Trial

Florida’s 4th District Court of Appeal, also known as the 4th DCA, issued an opinion on Florida evidence on September 9, 2020. The case is Walker v. Harley-Anderson and the citation is 309 So. 3d 299. That opinion helped answer the question: how do you get text messages into evidence at your Florida trial? The case discusses the rules of evidence and the procedure for getting documents or statements like texts and emails into evidence. After all, you just don’t “put” documents into evidence. You need to know how to “lay a foundation” which involves a witness (someone !) testifying about the documents. That person needs some type of personal knowledge about the documents themselves, or at least how they were collected and stored. Otherwise, how does a Florida probate court know if the documents are what they purport to be? How do you know if those documents are authentic? Sometimes, probate litigators who try cases for wills, trusts and estates, obtain a records custodian affidavit. (We have previously provided commentary on hearsay and a records custodian affidavit.) Sometimes they depose a corporate representative to testify about documents which a company or entity may have produced after receiving a subpoena. This Palm Beach appeals court opinion on Florida evidence also discusses the important issue of authenticity of documents which are brought before the court. You can read this text message Florida appeals court opinion here.