A picture may be worth a thousand words but usually there are plenty of words to available to prove your point in this modern age.
Specifically, most of us use email as our primary formal communication method. These emails go out…and they are left recorded for perpetuity in other people’s inboxes.
These emails can then be used as evidence in an Illinois divorce…but only if you know how to enter the emails into evidence using the Illinois Rules of Evidence and the relevant case law. If the email is not properly admitted into evidence, the court cannot use the email as a basis for its final decision about your divorce case.
You Can Only Use Emails You’ve Already Shared With Opposing Counsel (Usually Only If They Asked)
Before you spring the tell-tale emails on your opponent, your opponent has the right to ask for them. If the other side asks about emails, you must turn over the requested emails in advance.
“Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions, written interrogatories to parties, discovery of documents” Ill. Sup. Ct. R. 201(a)
While the language of discovery uses words such as “documents,” emails and other electronic communication will be treated as a document for the purposes of discovery.
Emails get treated as any other document in discovery even though they are rarely printed out as a document. “The word “documents,”…is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and electronically stored information as defined in Rule 201(b)(4).” Ill. Sup. Ct. R. 201(b)(1)
“Electronically Stored Information. (“ESI”) shall include any writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations in any medium from which electronically stored information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Ill. Sup. Ct. R. 201(b)(4)
In theory, you’re supposed to attach important exhibits to any pleadings in an Illinois divorce.
“If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her.” 735 ILCS 5/2-606
The requirement of inclusion of exhibits with pleadings in an Illinois divorce is rarely observed. This requirement is really for cases that involve a contract dispute where the exhibit is the contract in question.
“The exhibits to which section 2-606 applies generally consist of instruments being sued upon, such as contracts.” Velocity Investments, LLC v. Alston, 922 NE 2d 538 – Ill: Appellate Court, 2nd Dist. 2010
Furthermore, there are only a few pleadings in a family law action and almost none of them could hinge on an email. ”[P]leadings” includes any petition or motion filed in the dissolution of marriage case which, if independently filed, would constitute a separate cause of action, including, but not limited to, actions for declaratory judgment, injunctive relief, and orders of protection.” 750 ILCS 5/105(d)
If the other side didn’t ask for the email in advance, you have the element of surprise.
If the other side did ask for the email and you did not share the email with them…that email (or any discussion of the email or its contents) is not coming into evidence.
“If a party, or any person at the instance of or in collusion with a party, unreasonably fails to comply with any provision of part E of article II of the rules of this court (Discovery, Requests for Admission, and Pretrial Procedure) or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including, among others, the following:
…
That a witness be barred from testifying concerning that issue” Ill. Sup. Ct. R. 219(c)(iv)
Authenticating An Email Before Putting The Email Into Evidence.
First, the emails must be printed out if you are in person. Otherwise, the emails must be available electronically if you are doing the hearing/trial via zoom.
The email must be announced and shared with the opposing counsel so the opposing counsel can follow along (and object).
“At this time, I’m showing an email from you to my client sent on January 5, 2022”
The email is not automatically considered to be genuine. The email (like all evidence) must be authenticated.
“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a)
“In civil cases in Illinois, the basic rules of evidence require a proponent of documentary evidence to lay a foundation for the introduction of that document into evidence… Evidence must be presented to demonstrate that the document is what its proponent claims it to be… Without proper authentication and identification of the document, the proponent of the evidence has not provided a proper foundation and the document cannot be admitted into evidence.” Anderson v. Human Rights Comm’n, 314 Ill. App. 3d 35, 42 (2000).
Authenticating an email sounds complicated….but authentication is neither complex or diffiuclt. Authentication is just establishing an “indicia of reliability” that the email is probably real.
“A finding of authentication is merely a finding that there is sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not preclude the opponent from contesting the genuineness of the writing after the basic authentication requirements are satisfied.” People v. Downin, 828 NE 2d 341 – Ill: Appellate Court, 3rd Dist. 2005
The Illinois Supreme Court Rules even provide examples of how to authenticate an email.
The easiest is just having a person explain that the email is real. After all, who denies an email that came from their email address?
Authenticity is established by “[t]estimony that a matter is what it is claimed to be.” Ill. R. Evid. 901(b)(1)
Even if the person claims not to remember the particular email, authenticity can be established by testimony that the fact that it looks like an email they could have sent.
“Appearance, contents, substance, internal patterns, or other distinctive characteristicsof anitem, including those that apply to the source of an electronic communication, taken in conjunction with the circumstances.” Ill. R. Evid. 901(b)(4)
Here’s an example of a co-operative witness authenticating an email:
Attorney: “Ms. Flintstone, do you recognize this document?”
Witness: “Yes. It’s an email.”
Attorney: “How do you recognize this document?”
Witness: “It’s an email conversation between me and Mr. Flintstone, my spouse.”
Attorney: “Can you confirm the email addresses it was sent from and to?”
Witness: “Yes, it was sent from my email address, which is wilma.flintstone@bedrock.com, and it was sent to Mr. Flintstone’s email address, which is fred.flintston@bedrock.com.”
Attorney: “And do you recognize the content of this email?”
Witness: “Yes, I wrote this email and I remember receiving Mr. Flintstone’s reply.”
Conversely, here is an example of a hostile witness authenticating an email:
Attorney: “Mr. Flintstone, do you recognize this email.”
Witness: “I see that it’s an email but I don’t recognize it”
Attorney: “At the very top you’ll see it says “From and then it says fred.flintstone@bedrock.com.” Is that correct?
Witness: “Yes”
Attorney: “And your email address is fred.flintstone@bedrock.com. Correct?”
Witness: “Yes”
Attorney: “And the date on the email is January 5, 2022. Correct?”
Witness: “Yes.”
Attorney: “Were you using this email to communicate on or around that date?”
Witness: “Among other emails”
Attorney: “Move to strike that answer as non-responsive. It’s a yes or no question. Did you ever use this email in January of 2022?”
Witness: “I did”
Attorney: “The email is addressed to your wife wilma.flintstone@bedrock.com. Correct?”
Witness: “Yes.”
Attorney: “And the contents of the email reads that ‘Barney has your pearl necklace at his house until this divorce is over.’ Correct?”
Once an email is authenticated, you are done. Ask the court to admit it into evidence.
“At this time, your honor. I would ask that the email be admitted into evidence as exhibit A”
There is no need to belabor the conclusions from the email during direct or cross-examination.
You do not need to ask, “Doesn’t this email indicate that you hid Wilma’s jewelry hoping you’d keep it after the divorce?”
That gives the witness a chance to explain. Ex: “No it means that my friend Barney was having the jewelry cleaned at the quarry.”
Even letting your own witness explain an email simply allows that explanation to be questioned on cross examination.
Emails should speak for themselves. Emails are literally communication.
The conclusions you want the court to adopt because of the email can be addressed during closing arguments.
Objecting To An Email’s Admission As Evidence In An Illinois Divorce.
Beyond objecting because of insufficient authentication and/or foundation, there are still other ways to keep a damaging email out of evidence.
Because emails are so voluminous, it is easy to argue that a single email is irrelevant in the grand scheme of the overall case. Irrelevant evidence is not admitted into evidence.
“All relevant evidence is admissible, except as otherwise provided by law. Evidence which is not relevant is not admissible.” Ill. R. Evid. 402
Relevance is a very low bar. Even if the email might make some aspect of the divorce true, the email will be deemed relevant.
“”Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ill. R. Evid. 40
The real problem is that an email is often a snapshot in time of person at their worst.
Saying something inflammatory in an email will render the email irrelevant if the inflammatory statement is overly prejudicial.
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ill. R. Evid. 403
Emails reflecting bad character should be irrelevant because an Illinois divorce court makes decisions largely without considering bad behavior.
An Illinois divorce court “shall divide the marital property without regard to marital misconduct” 750 ILCS 5/503(d)
Similarly, an Illinois divorce ”court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)
Parenting time will not be affected by a rude or even outrageous email…if the email does not affect the child. “In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)
While reading a shocking email in open court can be a great “gotcha” moment, the email will be deemed pointless and petty if the email does not address the disputed issues under the purview of the divorce court.
Emails can only be introduced to the court by the person who wrote the email (unless there’s an exception). Otherwise, the email will be deemed inadmissible because the email is hearsay.
“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801
Emails are statements. The person who wrote the email is the declarant. Only the declarant can testify to the statement in the email.
“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Ill. R. Evid. 802
There are a lot of exceptions to the prohibition against hearsay which apply to emails.
In an Illinois divorce, relevant emails are usually from one spouse to the other. So, the spouse you represent can testify to the emails they received from their spouse.
“A statement is not hearsay if…[t]he statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity.” Ill. R. Evid. 801(d)(2)
This rebuttal to a hearsay objection is typically called “statement of a party opponent.”
There are other exceptions to the prohibition against hearsay evidence but if an email from a third party is so important…you should subpoena that third party to testify to that email rather than hoping your exception will qualify at trial.
What If The Purported Email Sender Denies That They Sent The Email
People like to claim that emails were not, in fact, sent by them. “It might be my email address, but I didn’t send that email. I must have been hacked.”
The email is still going to be authenticated as coming from the person’s email address despite the cybersecurity claims.
“A finding of authentication is merely a finding that there is sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not preclude the opponent from contesting the genuineness of the writing after the basic authentication requirements are satisfied.” People v. Downin, 828 NE 2d 341 – Ill: Appellate Court, 3rd Dist. 2005
The purported hacking can be proven (if necessary) via other evidence on cross-examination or redirect.
“Once the document is admitted, the ultimate issue of authorship is left to the trier of fact to determine.” People v. Fillyaw, 123 NE 3d 113 – Ill: Appellate Court, 2nd Dist. 2018
Emails From A Spouse’s Undisclosed Account
Emails can be “hacked” in that a spouse guesses their spouse’s email password and then arrives in court with dozens of surprising and incriminating emails form the other spouse to third parties.
Accessing someone’s email without permission is illegal under Illinois law.
“A person commits computer tampering when he or she knowingly and without the authorization of a computer’s owner or in excess of the authority granted to him or her:
- Accesses or causes to be accessed a computer or any part thereof, a computer network, or a program or data” 720 ILCS 5/17-51(a)(1)
Additionally, under Federal law it is illegal to “intentionally access[] without authorization a facility through which an electronic communication service is provided” or “intentionally exceeds an authorization to access that facility,” and by doing so “obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)
Walking into a court with a bunch of criminally obtained emails will result in sanctions or possible criminal penalties.
If you want an email from your spouse’s email account, you have to ask for the emails via discovery. Of course, you may be worried that they will simply delete any incriminating emails.
Deleting relevant requested emails is destruction of evidence.
“[A] trial court [has] authority to impose a sanction…for the destructi[on] of evidence” Shimanovsky v. Gen. Motors Corp., 181 Ill. 2d 112, 123 (Ill. 1998)
Proving that an email was deleted is a technical challenge that will require hiring some kind of expert to do an “audit log” of the email account. This gets expensive fast!
All of the rules and concepts regarding email evidence can also be applied to text messages, other messaging apps and social media.
Emails are pieces of the story that tells your side of the divorce. Be sure you can use them effectively by at least getting them into evidence. To learn more, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.