This is where I was leading with my original question. If the IMs are contested, what happens then? Do we go to the ISP? What if the session is encrypted? Do we go to the IM service provider? Ultimately, the burden of proof should be on CX to actually prove those are the IMs, right? Would CX have the ability to request logs from a provider anyway, since this is a civil case?
I think it's important to know the answers to these questions because anyone can show up in court one day claiming to have incriminating IM chats for XYZ - so the question is how to prove it's false, or what happens if they are false.
Bad things happen to people who fake documents or falsely claim real documents are fake. Your lawyer will be disbarred if he knows or suspects and doesn't report you. I don't think it happens because people would rather lose their company's money, even a lot of it, before they want to go to jail.
That's certainly one way to do it. The Federal Rules of Evidence is pretty flexible on ways to authenticate different documents. If you look at Rule 901, a party who offers the document as genuine can authenticate it by witness testimony, expert testimony, process (the document could only be obtained via a specific process), etc.
