WeChat messages — including text, voice messages, images, and other files — are considered “documents” under the Supreme Court Civil Rules and the Supreme Court Family Rules. Given WeChat's unparalleled popularity within the Chinese-speaking community, WeChat records are frequently subject to discovery in civil and family cases in British Columbia.
Technical challenges in presenting WeChat records as evidence
Unlike other messaging platforms that store data on centralized servers, WeChat only stores its data locally on users' devices, making WeChat records particularly vulnerable to permanent loss if a device is lost without being backed up. Furthermore, WeChat simply does not have a convenient message downloading function.
While screenshots may seem a convenient way to present WeChat conversations as evidence, they often lead to evidentiary challenges. Screenshots can omit key parts of the conversation, such as voice messages, and are vulnerable to manipulation, raising doubts about their authenticity and reliability.
In Wang v. Liu, 2023 BCSC 972 [Wang], the Court decided to place no reliance on WeChat screenshots provided by the defendant, which did not match the contents of a full WeChat thread professionally extracted from the plaintiff’s phone. The plaintiff contended that the screenshots were fabricated, and the defendant argued back that the plaintiff must have deleted the conversations before the thread was extracted. The Court found it difficult to ascertain which party was truthful on that point, as neither side adduced evidence to support their theories, so decided to place no reliance on the screenshots.
It is true that a message can be permanently deleted from a thread, which will not be restored even if the thread is subsequently extracted professionally. However, new messages cannot be inserted into a thread retroactively. Accordingly, WeChat records extracted by an independent forensic data expert are still more reliable as evidence. In Wang, the admissibility and reliability of a professionally extracted WeChat thread was also in dispute. An eDiscovery expert testified on the process of extracting the WeChat thread from the plaintiff’s phone. Taking the expert’s evidence into consideration, the Court accepted the admissibility and reliability of the extracted WeChat thread.
To avoid challenges against WeChat screenshots, or even professionally extracted WeChat records, parties may consider seeking an admission from the other side or putting in place a document agreement upon the authenticity of the WeChat records presented. In Y.Q. v. J.D., 2021 BCSC 943, the court accepted the authenticity of the WeChat screenshots because both parties treated them as accurate representations of their communications. However, the Court also reminded that, “ordinarily, the court must examine the authenticity and accuracy of such transcripts.”
How much disclosure is required?
While the extent of disclosure can vary by case, it is generally limited to documents that could prove or disprove a material fact as well as any documents that a party intends to refer to at trial.
Forensic data experts normally extract one WeChat thread at a time. A WeChat thread is a compilation of many messages between the same person over a period, which could extend many years, and include records of multiple conversations on unrelated topics. An extracted WeChat thread usually consists in one master list of messages, usually in Excel or HTML format, with hyperlinks embedded in the master list to attached voice messages, images, and other files, which are saved in subfolders provided with the master list.
The general rule of document production is that “a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of the document is producible if a part of it relates to a matter in question.” (Este v. Blackburn, 2016 BCCA 496 [Este] at para. 19).
The master list is one document, so if part of it is relevant, normally the whole file is producible. However, where a party has “good reasons,” it may produce the document in redacted form, and if the opposing party challenges the redaction, the listing party may seek a ruling from the court under Rule 7–1(14)(a) (Este at para. 20).
The separate attachment files, on the other hand, can be provided selectively based on relevance.
In practice, redaction is rarely applied to a WeChat thread between the parties, but more often when the WeChat thread was between one party and a non-party to the case, or between two non-parties.
Practical considerations
When working with WeChat records, there are several other practical considerations:
- Attachment loss: WeChat may automatically delete attachments if a device’s storage is low, which can result in the loss of important evidence.
- Multiple devices: A WeChat user may participate in one WeChat thread using different devices. However, unless they are properly set up, those devices may not synchronize their messages, so that the same WeChat thread may include different messages on one device than on another device.
- Extraction glitches: There may be glitches with the extraction, such as missing Chinese characters or problems with voice message playback. It is important to check for these issues when preparing WeChat records for production.
- Voice messages: Voice messages often require transcription and translation, which can lead to additional costs. In practice, a court-certified Chinese/English interpreter is often retained for both the transcription and the translation.
- Translation issues: WeChat threads almost invariably feature casual conversations in Chinese characters. Slangs, erroneous usage of characters, and vague or even confusing expressions are a norm. It is important to review draft translations very carefully.
- Independent discovery: Both parties to a WeChat “conversation” should independently disclose the WeChat records from their own devices. That way the courts can compare these independently disclosed versions of the same “conversation.”
- Preservation of the original device and the WeChat records thereon: Contingencies happen. The forensic data expert that has conducted an extraction may not be available to testify at the trial to introduce the records as evidence. If the original device holding WeChat records is still available, in the worst scenario, those records can be extracted again.
Have questions about this topic? Contact Song Xue or Cen Yang of Harper Grey’s Commercial Litigation Group.
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Song Xue is a senior litigator, with extensive experience representing his clients in complex litigation.
