Electronic Evidence in Litigation

The procedures for introducing electronic evidence in the course of a domestic violence hearing was recently addressed in a scholarly unpublished opinion by L. R. Jones, J.S.C. in the case of E.C. v. R.H.   Judge Jones noted that the challenges associated with different forms of electronic discovery may at times be significant, but they can potentially be mitigated if a litigant is advised in advance that if he or she wishes to introduce cell phone evidence in the hearing, such evidence should optimally be made available in tangible and organized, duplicate hard copy form for potential use at trial, as follows:

Cell Phone Evidence                                             Hardcopy form

1. A) E-mails and texts                                 printed on paper
2. B) Social media messages                         printed on paper
3. C) Photographs                                          printed on paper
4. D) Audio Recording                                   duplicated on CD or cassette
5. E) Video Recording                                    duplicated on DVD

Judge Jones reminded us that a domestic violence hearing is an expedited summary proceeding where there is no automatic right or opportunity for extensive pre­trial discovery. See Depos v. Depos, 307 N.J. Super 396 Ch. Div., 1997).He stated that, “while a domestic violence court may in some circumstances permit limited discovery in order to prevent an injustice (see Crespo v. Crespo, 408 N.J. Super 25, 44 (App. Div., 2009), aff’d 201 N.J. 207 (2010)), the time periods for discovery are generally nowhere near as long as those permitted in divorces and other contested family court actions under Rule 5:5-1(e).”

Thus, Judge Jones concludes that “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.”

In light of his sound logic, Judge Jones amended the TRO in E.C. v. R.H. to include additional language as follows:

If either party is seeking to introduce information stored on his/her cell phone (emails/texts/Facebook posts, etc.), such information should be printed out in triplicate in organized fashion with page numbers on the bottom right hand corner for easy reference. Additionally, if either party is seeking to introduce evidence from their cell phone relating to voice mails, video streams or photographs, same should be duplicated onto a CD or DVD as applicable so that same may be marked for identification in a tangible form.

This writer suggests that all standard TRO’s include this language.