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Takeaway

In a time of dramatic change it is the learners who inherit the future. The learned usually find themselves equipped to live in a world that no longer exists. Eric Hoffer, American Writer (1920-1983). 2. Takeaway.

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Takeaway

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  1. In a time of dramatic change it is the learners who inherit the future. The learned usually find themselves equipped to live in a world that no longer exists. Eric Hoffer, American Writer (1920-1983) 2

  2. Takeaway • ESI raises distinct evidentiary issues (because it can be altered from its original form) • Traditional rules of evidence are flexible enough to deal with ESI • The evidentiary rules as applied to ESI • Suggested pre-trial procedures Metadata can be helpful in determining the authenticity of ESI • 11 Step Foundation for Computer Records • Differences between ESI and EGI and why it matters 3

  3. Elements of E-Discovery 4

  4. Definition Electronically-stored information (ESI) = “Information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.” 5

  5. How E-Discovery is Different 1. Volume 2. Variety of sources 3. Dynamic quality 4. Hidden information: Metadata 5. Environment: Dependence and Obsolescence 6. Deleting doesn’t delete it

  6. 1.ESI Volume is High 95% of the world’s information is generated in digital format. 79% of American adults used the Internet in 2009. An employee at a large company will receive and send 50-100 emails daily.

  7. 2. Variety of Sources • Word processing documents, emails, voice mails, instant message logs, backup tapes, blogs, database files • Computer hard drives, network servers, personal digital assistants • Magnetic tapes, CD-ROMs, floppy discs, zip drives, digital phones, iPads and iPods

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  10. 2. Variety of Sources Recent Trend: Social/Professional Networking Sites

  11. 2. Variety of Sources Facebook • More than 500 million active users • 50% of active users log on to Facebook in any given day • Users spend over 700 billion minutes per month on Facebook • Facebook users upload about 3 billion photos per month

  12. 2. Variety of Sources MySpace • More than 122 million monthly active users around the globe (70 million in US) • 100,000 signups every day • Processes 46 million activities and updates daily

  13. 2. Variety of Sources LinkedIn • Professional networking site • Over 75 million users • Executives from all Fortune 500 companies are LinkedIn members

  14. 2. Variety of Sources Twitter • Over 100 million users • 300,000 new users each day • 65 million “tweets” posted each day

  15. 3. Dynamic Quality • Paper documents are in effect immutable once put on paper, but … • ESI is not fixed or in a final form • Modifications can happen without human intervention and are not easily detectable • As a result, there is not always a clear original version of ESI

  16. 4. Hidden Information:Metadata • Definition: data about data; not readily apparent on the screen view of the file. • Information about the document that is recorded by the computer to assist in storing and retrieving. • Usually not created by or easily accessible to the computer user. 17

  17. 5. Environment: Dependence and Obsolescence • ESI can often be read only with special software. • Raw data without the special structure will appear incomprehensible • But to make comprehensible, it might lose functionality • Legacy data might have been retained, but is now difficult to access 18

  18. 6. Deleting ESI Doesn’t Delete It • Deleted or backup information may still be available, just not easily accessible. • Deleting from a hard drive is like removing a card from the card catalog – the book (the information itself) remains until it’s removed to make room for a new book.

  19. II. Evidentiary Issues raised by ESI

  20. Admissibility of Electronically Stored Information • Little has been written about what is required to ensure that ESI obtained in discovery will be admitted in trial • It makes little sense to go to the cost and effort to obtain ESI in discovery if a sufficient foundation cannot be established to get it admitted. 21

  21. “We see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.” In Re F.P., 878 A.2d 91, 96 (Pa. Super. Ct. 2005). No Need For Special ESI Evidence Rules 22

  22. “In general, the Federal Rules of Evidence apply to computerized data as they do to other types of evidence. Computerized data, however, raise unique issues concerning accuracy and authenticity.” Manual for Complex Litigation (4th) § 11.446 23

  23. “Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions.” Manual for Complex Litigation (4th) § 11.446 24

  24. Impaired Accuracy of ESI • Incomplete data entry • Mistakes in output instructions • Programming errors • Damage and contamination • Power outages • Equipment malfunctions 25

  25. “The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling.” Manual for Complex Litigation (4th) § 11.446 26

  26. “The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy. The judge should therefore consider the accuracy and reliability of computerized evidence, including any necessary discovery during pretrial proceedings, so that challenges to the evidence are not made for the first time at trial.” Manual for Complex Litigation (4th) § 11.446 27

  27. The existing rules were adopted before ESI issues existed The forms of digital and electronic evidence regularly and quickly change Evidence can be altered from its original form The Evidentiary Challenges Raised by ESI 28

  28. Evidentiary Rules Triggered By ESI • Preliminary and Conditional Rulings • Relevance • Authentication • Hearsay • Original Writing • Compare Probative Value and Risk of Prejudice

  29. Evidentiary Rules (Federal) F.R.E. 104(a) and (b) F.R.E. 401 F.R.E. 901(a) F.R.E. 801, et seq. F.R.E. 1000-1008 F.R.E. 403 30

  30. III. Preliminary Rulings 31

  31. F.R.E. 104 (a) and (b) HOW THEY WORK TOGETHER • RULE 104 – Preliminary Questions • (a) Questions of admissibility generally. • Preliminary questions concerning the qualification of a person to be a witness, existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. 32

  32. F.R.E. 104(a) and (b) HOW THEY WORK TOGETHER • RULE 104(a) • Do facts presented support preliminary admissibility? • It’s a preliminary determination of admissibility • Made by the Court • Not required to apply rules of evidence (except privilege) • Qualified by Rule 104(b) 33

  33. F.R.E. 104 (a) and (b) HOW THEY WORK TOGETHER • RULE 104(b)Relevancy conditioned on fact. • When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. 34

  34. F.R.E. 104(a) and (b) HOW THEY WORK TOGETHER • RULE 104(b): • - Jury makes factual findings necessary to • determine admissibility • - The facts introduced must be admissible under • rules of evidence 35

  35. F.R.E. 104(a) and (b) HOW THEY WORK TOGETHER • Example – Counsel offers E-mail into evidence • 104(a) Judge decides whether e-mail is • : hearsay • : an admission of party opponent • : business record • • 104(b) Jury decides whether e-mail is • : authentic (what it purports to be) 36

  36. IV. Authentication 37

  37. Authenticating ESI • Arguably the biggest evidentiary challenge for ESI • Why? • Because ESI is easily created, altered, and manipulated, either accidentally or intentionally

  38. Authenticating ESI “[I]t is possible to create a Web page on a social networking site in another person’s name or to send an e-mail or post a message in another’s name. Therefore, it is difficult to show who actually is responsible for creating material on the Internet.” Levine & Swatski-Lebson, "Social Networking And Litigation," e-Commerce Law & Strategy (Jan. 2009) 39

  39. Authenticating ESI • Authentication is a “threshold preliminary standard to test the reliability of the evidence, subject to later review by . . . cross-examination.” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 544 (D. Md. 2007)

  40. Authenticating ESI Fed. R. Evid. 901(a) – proponent must offer evidence “sufficient to support a finding that the matter in question is what the proponent claims.” 41

  41. Authenticating ESI It’s a low hurdle Could a reasonable juror find in favor of authenticity? United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) Is there a rational basis for fact finder to conclude the matter is authentic? People v. Downin, 828 N.E.2d 341, 350 (Ill. Ct. App. 2005) 42

  42. Authenticating ESI “[T]he inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation.” Lorraine, 241 F.R.D. at 542 43

  43. Authenticating ESI • Courts have wrestled with authentication of electronic evidence • Decisions on both sides of almost any question

  44. Authenticating ESI • Best-case scenario: Stipulation • Encourage (pressure) parties to stipulate to authenticity of ESI • Often no legitimate challenge to authenticity • Saves time/money for the Court and parties

  45. Authenticating ESI Next-best alternative: Admission Express admission (request for admission, in deposition, at trial) Failure to object (courts generally have discretion to consider evidence where there is no objection) 46

  46. Useful ESI Evidentiary Procedures • All ESI identified pre-trial • ESI evidence highlighted to opposing side before trial • • Parties directed to stipulate where appropriate • Pre-trial offers of proof on disputed ESI exhibits • Foundational witnesses identified on ESI exhibits • Parties directed to confer to submit joint cautionary jury instructions • In camera proceedings during trial 47

  47. ESI – In Camera 1. In camera hearing addressing authenticity does not replace the presentation of authenticating evidence before the jury. 2. The Court must revisit the authenticating evidence at trial. 3. Even though the Court may have ruled in camera that the proponent has presented sufficient evidence to support a finding that the evidence is authentic, that authenticating evidence must be presented again to the jury before the evidence may be admitted. United States v. Branch, 970 F.2d 1368 (4th Cir. 1992). 48

  48. Authenticating ESI E-mail and electronic communication – Testimony of a witness with knowledge - FRE 901(b)(1) • No special expert or computer knowledge needed (witness need not have programmed or even understand technical operation of computer) • A witness who sent or received an email can identify it as such • Other witnesses who have seen the email in electronic form can testify that it is an accurate reproduction

  49. Authenticating ESI E-mail and electronic communication Comparison by trier or expert -FRE 901(b)(3) • Expert or fact finder may compare the offered document with one that has been independently authenticated.

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