email
Requirements for using email as evidence
<p>Someone told me you can "just send an email to yourself" as a means of proving non-disclosure, copyright, resolving disputes, etc.</p>

<p>What I'm specifically wondering is whether this requires you to use an email service where you have absolutely no way of sending backdated email or altering already sent email?</p>

<p>In other words, since you have full access to it at any given time, using your own email server for this purpose would render your evidence worthless, wouldn't it?</p>

<p>It doesn't really <em>require</em> anything beyond your say-so that it is what you say it is; that would be enough to satisfy the requirement for authentication. </p>

<p>From there though, as with any evidence, it's going to be up to a jury to decide how much weight to give the evidence. So the more you can show them to prove that the record is real -- and to knock down any questions the opposing party will raise -- the more likely they are to believe it. So if you just bring a printout that looks like it could easily have been forged, the jury may be thinking about that. If you can bring in a data forensics expert to say the document couldn't have been faked, that's probably going to help.</p>

<p><strong>Addendum</strong>: As a practical matter, I wouldn't expect this to be much of an issue. Unless you're dealing with a savvy opposing party, the authenticity of e-mails seems to be generally assumed. Courts (1) generally assume that parties aren't perpetrating frauds; and (2) are generally run by judges with little to no technical savvy, who don't realize that one <em>could</em> forge an e-mail, let alone all the different ways it could be done. I've personally entered countless e-mail printouts without them being questioned, even though either party could have just gone down into the e-mail thread and changed what the other side had said earlier in the conversation.</p>

<p>To avoid the issue, though, it might be that sending the e-mail to a Gmail account would elimimate the question.</p>

<p>Maybe it won't <em>completely</em> invalidate your evidence. Your email server may have logs, backups, etc. that could (somehow) certify that the email hasn't been tampered with (eg. the email was already present in a backup tape put two years ago in a bank safe, with the bank certifying the date it had been stored). However, it will certainly make it much more weak.</p>

<p>The point is, if you have full access to the data stored, you could have tampered with it. There are cases where you are not really having that access to "your" mail server, such as it being provided by your hosting, or the CEO/company owner technically "owning" the server, but not managing the server themselves so they would be unable to tamper with that data without the collusion of certain other employees/contractors.</p>

<p>Even if you don't manage the server itself, it could be possible for you to copy a backdated email through IMAP. My recommendation would be to send the evidence email [to anywhere you can pick it] from a third party provider which supports DKIM (any big player does).</p>

<p>This way, when sending the email, the third party (eg. gmail) will be signing [some parameters of] the message with their DKIM key (usually the subject, date, recipients, body hash...). You could later prove that gmail certified [at the signature timestamp] those email contents. Thus, [barring some catastrophic bug] the only way for you to have that signature with that message being false, would be that you convinced gmail to fraudulently sign that email (which should then considered infeasible by the court, concluding that the email was indeed sent at the given date).</p>

<p>It would all boil down to credibility of the email hosting service.  Running your own email server itself seems weird given the sheer difficulty of doing so competently.  Because with the various security threats out there, "competently" is a high bar. If the server is not secure, then emails from it have a credibility problem for a different reason!  </p>

<p>So your own email server makes sense for Ford, it makes much less sense for Joe Citizen, Esq.   Also, at Ford the email system will be managed by a bunch of at-will employees who are not willing to go to jail for the company, and likely they are not the defendants.  So the court can largely trust their subpoenas will be answered truthfully. </p>

<p>For you, the elephant in the room will be "why <em>on earth</em> would you run your own email server when Gmail accounts are free?" A factor would be whether you could've possibly anticipated using email to defend a case.  The plaintiff will argue "you did it to set the stage for tampering with email evidence". And you'd need to show why a reasonable person in your shoes would have a private email server. If you fail, your email evidence is excluded.</p>

<p>Once I had to send a stack of documents to a friendly private business, and I knew the opposition would challenge the delivery date. I loaded them onto Google Docs and timely emailed the link to their Hotmail account.   Plaintiff <strong>did</strong> object claiming the documents were tardy, and said I was a "computer hacker" who had "done technical stuff" to falsify the dates. We were fully prepared to subpoena both Google and Hotmail, but the court told us we didn't need to bother.  The court was satisfied by the fact we had captured the documents via indifferent, well protected third party services. This was a rural court in middle America in 2009.  </p>

<p>Yes, using your own email server to do this would pretty much invalidate your claim.  You'll find it pretty hard to convince the court you aren't able to alter the stored emails any way you want.  What you want is a service where you can show the court a chain of custody that you can't manipulate.</p>

<p>As others have said. Email will be treated as just any other evidence, and there are no formal requirements.</p>

<p>However, I would say that  "just send an email to yourself" is pretty bad legal advice. <em>If</em> you're facing an opponent that will contradict you and insist the mail was forged, you'll have a hard time proving him/her wrong, and the matter will boil down to who the judge/jury will be most inclined to believe.</p>

<p>If you want to make sure the authenticity of some historic document is not disputed at some future point in time, get it <a href="https://notarize.com/knowledge-center/what-does-it-mean-to-have-a-document-notarized-2/" rel="nofollow noreferrer">notarized</a>.</p>
