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25 de Fevereiro de 2020

How to use email as documentary evidence

Online communication grows by the day. If before people called or went to a specific location to solve a problem, today almost everything is discussed and scheduled by email. For this reason, adjustments, purchase and sales ratio, charges and even confessions are exchanged by e-mail. But does the email serve as documentary proof? You can, but some care is needed.

Using email as documentary proof

There are five ways to make claims in Brazilian Civil Law: judicial inspection, testimonial evidence, documentary evidence, confession and expert evidence. However, a simple printed email is not always enough, as this does not prove that that email really existed.

Remember that a message goes through servers, email accounts, and of course, it enters the network. They are stored in a database, but a simple hard copy does not guarantee that it has not been tampered with. Therefore, to use e-mail as proof and to ensure its veracity, the ideal is that it has the digital certification issued by an accredited Certificate Authority in the Brazilian Public Key Infrastructure - ICP - Brazil, but if it is only printed it can also be accepted and are used as evidence in lawsuits.

Remember that any kind of evidence, provided it is evidently true, can be used in accordance with Civil Procedure, Article 332 of the CPC, ie the use of email as evidence is perfectly acceptable. Another important point is that documents have “probative effectiveness” they need to be signed. When we put emails in this box, we note that at least the electronic signature is indicated. If this is not the case, it may be challenged by the opposing party, and in that case expert examination shall be conducted.

Law 11,419 / 2006 says: “Art. 365. They do the same proof as the originals: (…)

V - digital extracts from public and private databases, provided that the issuer attests, under the penalties of the law, that the information conforms to the source;

This frees up the use of e-mail, reinforcing what was said earlier. However, in this case, it is recommended to use a certificate that matches “what is in the source”.


Two strands of thoughts about using email


There are actually two strands of thinking. In one, the printed email is valid as proof and can be attached to the file as long as it is proven to be true, with an electronic signature, for example. In the other, the need for a technical expertise to certify the recipient, the authorship, when it was sent and the I.P.s (communication protocol or Internet Protocol) addresses used during the process is defended. Briefly we can say that the former does not require expertise while the latter makes a point of it. Thus, it is understood that although the email is a fragile proof, it can be expert and used as an integral part of the process.


How to forward an email to be used as proof?


It's simple, don't forward the email you want to use as proof to the lawyer, instead forward the email print file to PDF / A, which is a file format made specifically for long-term archiving of documents which has already been widely accepted by all Brazilian Courts as a Document without modification after the creation of the file.


If there are multiple email conversations, all should be in the pdf file, including the attachments.


For demonstration of ownership the image of the active window of the generated file should be sent, for example:


We recommend reading the article How to generate a PDF / A file for documentary proof purposes?


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www.hermidamaia.adv.br and talk to our lawyers without leaving home.


Dr. Adriano Hermida Maia (adrianohermida.jusbrasil.com.br)

Lawyer and Partner of Hermida Maia. Postgraduate in Civil Procedure, Labor Law and Labor Procedure, MBA in Accounting & Tax Law with emphasis on tax risk.

Online Service: m.me/hermidamaiaadv

Visit our website: www.hermidamaia.adv.br


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