“The authenticity of the electronic document or email must be established by an affidavit of the person having direct personal knowledge of the facts or knowledge based on authentic records”
More than two decades ago in a case I was handling, the opposing counsel on direct examination of his witness asked the witness to identify an email.
I immediately raised an objection because the witness was neither the sender nor the addressee of the email. The judge sustained my objection.
However, the opposing counsel rephrased and insisted on his question being answered. Similarly, I objected; but this time the judge overruled my objection. The lawyer then proceeded to ask him questions regarding an email that he neither prepared nor received.
I raised continuing objections to the line of questioning of the lawyer. This was my first encounter with an email as evidence.
Apparently, the judge and lawyers were then still unsure on how to authenticate an email as there were yet no rules governing this type of communication.
In 2000, the Philippine Congress passed Republic Act 8792, also known as the Electronic Commerce Act.
The authentication procedures outlined in RA 8792 will have to be followed until such time when the Supreme Court will have provided the appropriate rules for authenticating and validating electronic documents, data messages, and signatures (see Section 11, RA 8792).
On July 17, 2001, the Philippine Supreme Court approved the “Rules on Electronic Evidence,” which took effect on August 1, 2001. The Rules stated that it shall apply in all civil actions and proceedings, as well as quasi-judicial and administrative cases (Rule 1, Section 2, A.M. 01-7-01-SC).
The succeeding year, the coverage of the Rules on Electronic Evidence was expanded to include criminal cases (A.M. 01-7-01 dated September 24, 2002).
An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related laws (Rule 3, Section 2, A.M. 01-7-01-SC).
Electronic documents shall include “writing, document, record, instrument, memorandum or any other form of writing” (Rule 3, Section 1, A.M. 01-7-01-SC).
An electronic document shall be regarded as the equivalent of an original document if it is a printout or output readable by sight or other means, shown to reflect the data accurately (Rule 4, Section 1, A.M. 01-7-01-SC).
“When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques… accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.” (Rule 4, Section 2, A.M. 01-7-01-SC)
Copies or duplicates of electronic documents shall not be admissible to the same extent as the original if: (a) a genuine question is raised regarding the authenticity of the original; or (b) in the current circumstances it would be unjust or inequitable to admit a copy in lieu of the original (Rule 4, Section 2, A.M. 01-7-01-SC).
The fact that an electronic document is in two or more copies, executed at or about the same time with identical contents, or is a counterpart of its original does not in itself prove its authenticity.
Separately, it will have to be authenticated by: (a) evidence that it has been digitally signed; (b) appropriate security procedures as may be authorized by the Supreme Court or by law; or (c) evidence showing its integrity and reliability (Rule 5, Section 2, A.M. 01-7-01-SC).
In the 2019 Amendments to the Rules on Evidence, the Supreme Court fine-tuned the Rules on Evidence to capture the definition of an “original” and “counterpart” under the Rules on Electronic Evidence:
(a) [I]f data is stored in a computer or similar device, any printout or other output readable by sight or other means, shown to reflect the data accurately, is an “original.”
(b) A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix … by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original (Rule 130, Section 4, 2019 Rules on Evidence) .
The interest in electronic documents and emails heightened during the COVID-19 pandemic.
Lawyers, clients, and other court users were not able to personally file and make official dealings in courts. Fortunately, the Supreme Court anticipated this when it provided in the Rules that email filing and service will be allowed “as the parties may agree on, or upon direction of the court” (Rule 13, Section 9, 2019 Rules on Civil Procedure).
To be able to present, identify, mark, and authenticate an email, the proponent or presenting party must understand the mechanics of an email.
The email would normally have lines for the recipient, sender, the other recipients (copy furnished), the subject of the email, and the body of the email.
The email address indicates the username and the hostname (username@hostname), the latter of which includes providers such as Gmail, Yahoo, Hotmail, official hostnames for government, companies, and institutions, among others.
If an email printout is identified, marked, and authenticated by a competent witness with no question raised regarding its integrity, then the email printout may be admitted in evidence.
If there are issues about: (a) another person logging in to the sender’s email and using it himself; (b) hacking or hijacking of another person’s account through spyware, viruses, or other malicious software; or (c) different recipients or parties to email communications receiving different or altered messages, then further authentication may be required by the judge.
In case the source of the email cannot be determined or if it was forwarded from unknown or bogus senders, verification of the chain of custody in handling the email may be resorted to by the judge.
In other foreign jurisdictions, cryptography is employed in email communications, where “the parties use a key which encrypts or scrambles the message” (Evidentiary Foundations, Edward J. Imwinkelried).
The authenticity of the electronic document or email must be established by an affidavit of the person having direct personal knowledge of the facts or knowledge based on authentic records.
The affidavit must also affirmatively show the competence of the affiant to testify on the matters contained therein (Rule 9, Section 1, A.M. 01-7-01-SC).
