What is the legal foundation of or basis of ephemeral electronic evidence?

The Supreme Court’s Rules of Electronic Evidence has defined “Ephemeral

electronic communication” as pertaining to “telephone conversations, text
messages, chatroom sessions, streaming audio, streaming video, and other
electronic forms of communication the evidence of which is not recorded or
retained” (Rule 2, Sec.1. k).

Rule 11, SEC. 2. Provided:

Ephemeral electronic communications shall be proven by the testimony of a

person who was a party to the same or has personal knowledge thereof. In the
absence or unavailability of such witnesses, other competent evidence may
be admitted.

A recording of the telephone conversation or ephemeral electronic

communication shall be covered by the immediately preceding section.

SECTION 1. Audio, video and similar evidence. – “Audio, photographic and

video evidence of events, acts or transactions shall be admissible provided is
shall be shown, presented or displayed to the court and shall be identified,
explained or authenticated by the person who made the recording or by some
other person competent to testify on the accuracy thereof.

If the foregoing communications are recorded or embodied in an electronic

document, then the provisions of Rule 5 shall apply.”

In the case of ZALDY NUEZ vs. ELVIRA CRUZ-APAO (A.M. No.

CA-05-18-P, April 12, 2005) the issue on whether or not the text messages
are admissible in evidence has been resolved. The Supreme Court in this
case held that:
Under Section 2, Rule 11 of the Rules on Electronic Evidence, "Ephemeral electronic
communications shall be proven by the testimony of a person who was a party to the
same or who has personal knowledge thereof . . . ." In this case, complainant who was
the recipient of said messages and therefore had personal knowledge thereof testified
on their contents and import. Respondent herself admitted that the cellphone number
reflected in complainant’s cellphone from which the messages originated was hers.
Moreover, any doubt respondent may have had as to the admissibility of the text
messages had been laid to rest when she and her counsel signed and attested to the
veracity of the text messages between her and complainant. We have no doubt as to
the probative value of the text messages as evidence in determining the guilt or lack
thereof of respondent in this case.

Construing all the relevant provisions of the Rules of E-Evidence on

ephemeral evidence, the rules mandate that these types of communication
“be proven by the testimony of a person who was a party to the same or has
personal knowledge thereof. In the absence or unavailability of such
witnesses, other competent evidence may be admitted, provided they are
authenticated.