By Tanya Basu

State v. Voorheis, 844 A.2d 794 (Vt. 2004)

Employee Implicated:  A (Perverted) Defendant

eLesson Learned: Instant messaging, or IM, may provide realtime convenience and conferencing capabilities, but it creates a written business record that may be subpoenaed and used as evidence in litigation or regulatory investigations.

E-mail use is on the decline as businesses rely more on instant messaging (IM) for its realtime convenience and conferencing capabilities.  State v. Voorheis shows us that the impact of IM on litigation will become more significant with its increased use.

The Facts

A Vermont jury convicted Defendant of incitement and attempt to use a child in a sexual performance. Defendant appealed the conviction claiming that the trial court abused its discretion by not dismissing the charges for lack of sufficient evidence.

The child in this case was a mentally challenged thirteen year old.  The Defandant was having an extra-marrital affair with the child’s mother. Defendant and the child’s mother communicated frequently through e-mail and IM.  At trial, the State introduced evidence retrieved from a computer forensic examination of the mother’s computer system and floppy disks.  The key piece of evidence in the case was an IM text in which the Defendant and the child’s mother engaged in graphic and sexually explicit dialog about the child.  The IM evidence introduced offered substantial evidence of Defendant’s requests to the child’s mom to pose her child naked and take pictures for his viewing.  The child’s mother sent pictures of her child in lingerie to the Defendant and entertained conversations about the Defendant having sexual relations with the child.  IM text also revealed that Defendant solicited the child’s mom to “carry on his own lewd photo session.”   

In the midst of the disturbing details of this child pornography case lies an important e-discovery lesson – instant messages are discoverable.  The State relied heavily on the IM messages between the Defendant and the child’s mother to prove their case.  Based on the IM evidence and other circumstantial evidence, the jury “reasonably conclude[d]  that Defendant had incited [the child’s mom] to use her daughter in a sexual performance  . . . and/or to consent to her daughter’s participation in a sexual performance violation.”

The Argument

Defendant mainly argued that the State had insufficient evidence because all they had were the instant messages.  Defendant argued that the instant messaging text was “meager evidence” of guilt because the child’s mother allegedly altered and edited the text.  The Court acknowledged that there was likely a conspiracy between the child’s mother and the Defendant.  The child’s mother claimed to have altered the IMs.  Defendant argued that because the IMs were allegedly altered, they are not reliable evidence at trial. 

The Vermont Supreme Court rejected this notion stating that, based upon the electronic instant messaging evidence, the jury could have reasonably concluded that the Defendant intended to use the child in a sexual performance.  The court further determined this was a question of credibility and not of sufficiency of the evidence.  Based on the evidence in instant messages, the Vermont Supreme Court rejected the Defendant’s argument and held that the trial court did not abuse its discretion in finding that the instant messaging text sufficiently and fairly supported the jury’s finding that the Defendant was guilty beyond a reasonable doubt.  Accordingly, the jury could find the recovered instant messages reliable and choose to disbelieve that the mother had altered the text.

The Lesson

IMs are increasingly becoming an important part of e-discovery.  This kind of evidence can be easily devastating to companies in litigation because employees tend to be more lax when communicating using an IM service.  It is important to educate employees on the fact that IMs are typically part of the backup and retention protocol of the organization and may be easily retrieved.  Attorneys should also make sure they inform their clients to hold onto instant messages that are related to a lawsuit or an investigation and that would otherwise normally be disposed of in the course of business. 

Tanya Basu is a third year law student at Seton Hall Law School.

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