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HOW TO MANAGE Electronic EVIDENCE AND discovery. Agenda . Why Does Electronic Evidence Require Special Attention? Managing “Your” Evidence Managing Opposing Party Evidence. WHY DOES ELECTRONIC EVIDENCE REQUIRE SPECIAL ATTENTION?. Electronic v. “Traditional”.
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Agenda Why Does Electronic Evidence Require Special Attention? Managing “Your” Evidence Managing Opposing Party Evidence
Electronic v. “Traditional” • Unique Properties of Electronic Data • Attorney Obligations • E-Discovery • Admissibility, Other Issues
Properties Of Electronic Data Volume Duplicability Fragile, Yet Persistent Ease of Undetected Alteration Metadata Hardware/Software Dependent Searchability
Discovery Implications Cost Privilege
Other Electronic Evidence Implications Acquisition Admissibility
“Your” Electronic Evidence In Your Client’s Possession Third-Party Sources
In Your Client’s Possession • “Management” Begins Before The Lawsuit Is Filed • Litigation Hold Protocols • Data Retention Policies • Computer Use Policies • Incident Response Plan
Third-Party Sources Where Is “The Smoking Gun”? Thinking Outside The Box
Third-Party Sources Acquisition Admissibility (Weight)
Acquisition Legal Process Voluntary Production
Meets the Wild, Wild West Lorraine v. Markel
Lorraine v. Markel 241 F.R.D. 534, E.D. Md. (2007) “ … research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence …
Lorraine v. Markel “ … this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case …
Lorraine v. Markel • Five Evidentiary Rules to Consider: • Relevance • Authenticity • Hearsay • Original Writing/Best Evidence • Probative Value/Unfair Prejudice
Lorraine v. Markel • Authenticity • “As the foregoing cases illustrate, there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed ...”
Lorraine v. Markel • Authenticity • “ … although it may be better to be lucky than good, as the saying goes, counsel would be wise not to test their luck unnecessarily …”
Federal Rule 901 • Requirement of Authentication or Identification • (a) General provision. • The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Federal Rule 901 • Requirement of Authentication or Identification • (a) General provision. • “ … sufficient to support a finding …”
Federal Rule 901 • Requirement of Authentication or Identification • (a) General provision. • “ … sufficient to support a finding …” Don’t set the bar too low!
Authenticity As technology and the legal landscape continue to change … Distilling concepts down to their very core becomes more important than ever
Authenticity Is … … the tip of the iceberg of persuasiveness Meaning of authenticity may change over time, and may vary wildly from courtroom to courtroom …. The importance of persuading the 12 members of your jury of the credibility of your evidence NEVER changes
Digital Evidence Received from party opponent via discovery Received from third party Criminal cases
Authenticating Digital Evidence • “Work smarter, not harder” • Judicial Notice • Discovery techniques • Requests for stipulations • Request to admit genuineness of documents • Requests to admit facts which would establish authenticity • Depositions • Well-drafted interrogatories, production requests
Authenticating Digital Evidence Discovery materials not resolved pretrial Third party materials Evidence in criminal prosecutions
Smoking gun-I: Email • U.S. v. Siddiqui, 235 F.3d 1318 (11th Cir. 2006) • Defendant’s email address identified him • Witness testimony as to use of “reply function” • Content revealed author’s familiarity with Defendant’s relevant conduct • Use of Defendant’s nickname in body • Defendant reiterated request made within email during telephone conversation soon after email receipt
Illinois Appellate Court • State v. Downin, 357 Ill.App.3d 193, 828 N.E.2d 341, 293 Ill.Dec. 371 (3rd Dist. 2005) Absence of evidence from ISP linking Defendant to email “ … finding of authentication … does not preclude the opponent from contesting genuineness of the writing after the basic authentication requirements are satisfied …”
Illinois Appellate Court • State v. Downin, 357 Ill.App.3d 193, 828 N.E.2d 341, 293 Ill.Dec. 371 (3rd Dist. 2005) “ … [proponent] need only prove a rational basis upon which the fact finder may conclude that the [email] did in fact belong to the defendant …”
Illinois Appellate Court • State v. Downin, 357 Ill.App.3d 193, 828 N.E.2d 341, 293 Ill.Dec. 371 (3rd Dist. 2005) • Victim testimony that she met defendant via Internet • Email communication before and after in-person meeting • Same email addressed as used previously • Reply responsive • Reply contained information known exclusively to victim and defendant
