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Will a text message or email hold up in court?

Overland Park, KS |
Filed under: Discovery

I recently mixed an album for a band, and sent them the file through email stating (in the email) that if they opened the attachment, they would be agreeing to pay for it within 24 hours. i later got a text message from one of the band members saying he would bring me the money the next day, which he never did. will any of that hold up in court?

I should also add that this will be taking place in small claims court, so I will not have a lawyer. Nor is it worth the money to get one because the amount they owe me is far less that the amount I would pay for a lawyer. Also, the text messages were sent on thursday, so trying to get a record from the provider may be a lost cause at this point. Will bringing my phone with the actual text messages on it to court be considered valid evidence?

Attorney Answers 2


While I do not know Kansas state law, the fact is that you have some proof of your sending the e-mail and you have proof of the text message that you received. During the course of the lawsuit, you will, presumably, conduct a deposition of the defendants and, in particular, the band member who sent you the text message. You will, during the deposition, ask as to whether the e-mail was received and ask also about the text message. You will not be relying exclusively on the e-mail and text message, but, rather, testimony that is elicited through those exhibits.

Please note that I am a New York attorney and cannot advise you as to the application of your state's substantive or procedural law. You may thus wish to consult with a local attorney.

Good luck to you.

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Dear OP: there are issues involved in which you might benefit from immediate action. Please read ASAP.

First, while you have agreed to the Terms of Use which explicitly state that there is no attorney/client relationship, our rules are clear that I must make sure you understand this. As such, I am explicitly telling you that I am not representing you and I am not providing any legal opinion.

Now, to what you really care about!

Michael is right, the messages can be used in discovery. Additionally, the messages can be used in Court assuming some conditions are met. First, your attorney needs to establish they are relevant. This is the easy part as they pertain directly to the matter which appears to be in controversy (payment for product). Second, your attorney needs to establish that they (the email and text) are admissible, this requires the laying of proper foundation. There are many caveats of both relevance and admissibility, get a lawyer and make him worry about the rules of evidence.

If I was in your position, my immediate concern is with the preservation of evidence. Find a way to print out both the email and the text message.

Bad news, many providers do not maintain the content of text and/or email messages for very long. From my experience, two days is common. As a prosecutor, we frequently use what is called a Preservation Letter. This informs the provider (ISP, Cellular Company, etc) that we will be providing a court order for production of the records specified in that letter.

Good news, you are the customer! You probably will not need a court order for records production, you can most likely just ask.

Step 1: (URGENT) Get with your cellular provider, see if they can store the message and/or provide you with proof of the communication as well as the sender (they will give you a phone number).

Step 2: (URGENT) Get with your ISP and see if they can do the same as step 1.

Step 3: Get an attorney to get on top of this for you sooner rather than later.

While I wont tell you what the attorney should do, as that is between you and him/her to determine your legal strategy. I would recommend that you inform your lawyer that records from Step 1 and 2 have been preserved (if you managed to get it done) so that he can subpoena them. Additionally, make sure and provide him with the phone number of the sender from Step 1 so that your attorney can subpoena the subscriber information of the sender. This is how you match the phone number with the name. All of this will probably not be required, but it makes your evidence stronger, this is what we refer to as the “weight” of the evidence.

Get 1 and 2 done now, call them after you read this message. It's possible they might want you to pay for the records. This is something you will have to consider.

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