The Use of Text Messages in Court

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[Music]
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for anyone who’s been following the high
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profile criminal trial of former
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theranos ceo elizabeth holmes you know
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it’s now coming to a close and even if
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you weren’t following the details there
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was something worth noting during this
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trial holmes’s personal text exchanges
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with her former boyfriend and
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co-executive were used as evidence this
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is raising questions about what we need
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to know about our own privacy and our
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text history joining me now is criminal
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lawyer tanya walker from walker law nice
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to talk to you today this is so
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interesting
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thank you for having me yeah so let’s
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look at this case i mean the texts in
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this specific case range from business
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related tax like for example quota
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validation reports are terrible two very
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personal texts i’m gonna read one you
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are the breeze in desert for me
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okay so how are these texts used as
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evidence in this case
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well the texts are used as evidence to
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demonstrate what um ms holmes knew or
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should have known during the time that
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she knew the technology um wasn’t
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operational um
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she
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you have to in terms of fraud you have
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to prove knowledge that and that’s
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really hard to prove and so these text
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messages show that uh first really two
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things that she was in control of the
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company and she appeared to be a
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confident ceo um she’s kind of uh proud
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of some of the investments that she
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secured uh rubert murdoch and alice
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walton from the walmart family both
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contributed
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over 100 million each in her company in
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terms of an investment and she’s
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actually talking about that with mr
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bowani and it shows also mr balwani was
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being very supportive um towards her and
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providing his opinions instead of
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controlling her and so that hurts her
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defense a little bit because she said
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that you know i was really the face of
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the company i didn’t really understand
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everything that was going on mr bowani
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was in control he controlled me and so
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the text kind of disproved what she’s
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saying here
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and also mr balani even says in a text
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message you are the company so it’s very
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difficult now that for her to say well i
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i just i didn’t um understand what was
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going on he even actually expressed to
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her
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that i don’t really think that we should
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have on our website
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information about the company and
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technology because there’s there’s
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issues with the technology that we have
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and she made the decision to keep um the
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website operational as it is and it’s so
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it really really hurts her defense to
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say i didn’t know i don’t recall i
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wasn’t i wasn’t in control um
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it really really hurts her yeah when you
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get that so you take that you know that
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cloak back and you see the private
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texting so in terms of canadian courts
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what is permissible
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to use when it comes to texting
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well um lindsay it’s more than just
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texting i would use the word electronic
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communication okay because it’s texting
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it’s it’s sending messages on skype or
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facebook anything that’s electronic and
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so
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pretty much everything’s permissible um
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as long as it’s relevant you’re not
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trying to
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submit a text message or electronic
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communication to say this person’s an
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awful person you’re actually using that
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message to prove or disprove a point
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that it’s authentic because it hasn’t
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been doctored and it’s not covered by
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any form of privilege or hearsay for
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example lindsay if you text me and say
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tanya and marie told me that she saw you
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that wouldn’t that’s your say because
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you need that you need the information
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from the person who actually witnessed
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the wrongdoing so it’s it’s i i love
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using them um it shows what a person was
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really thinking around the time that the
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incidents happened so if people are
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concerned about privacy and what they’re
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texting is there a way to protect your
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own texts
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yes i mean you can claim privilege or
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hearsay and say it’s not admissible um
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be careful about how you communicate
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electronically uh maybe keep in mind
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that whatever text message you send um
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whatever media me that you use it might
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be read by a judge um you don’t have to
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save messages in a cloud however if
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that’s your regular practice of doing
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things and then you end up in a court
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proceeding and you destroy that that’s
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seen as spoilation so that could be
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problematic but if you if your regular
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practice practice is not to save
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messages in the cloud those messages
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might not be saved forever um and also
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if you your text messages are used in
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court such as with miss holmes and mr
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belwani some of it’s kind of
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embarrassing because it’s really
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romantic speak you might you might want
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to ask the court to redact what’s not
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relevant because this becomes part of
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public record and you might not
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necessarily want the world to see those
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type of messages that you were sent back
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and forth
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yeah and maybe get a little bit more
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creative than like you are the breeze in
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desert for me i’m just saying
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anyway tanya always good to see you
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thank you so much happy holidays if we
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don’t chat before
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happy holidays thank you for having me
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lindsay all right