Evidence Issues in E-Discovery

1. Evidence Issues in E-Discovery UNIVERSITY OF HOUSTON Summer III 2010 – 5397 E-Discovery

2. Conversations are increasing digital… • And so is the evidence. • Smartphones, • Message boards, • Webpages, • Voicemail, and • Text messages. • Each of these raises issues of how this stuff gets introduced.

3. Preliminary issue: where to look… • In re David Weekley discusses the form of the request (and not the party’s right to discover the information in question). • Take the time to review the documents you receive and ask good questions at depositions – all depositions – about how data moves within a company. • Rule 196.3 is your friend, so use it.

4. A brief evidence primer… • Rules 401, 402 – Relevancy • Page 626. • Does it matter? • Rules 801 - 803 – Hearsay… • Pages 638-643. • Is it reliable?

5. A brief evidence primer… • Rules 901, 902 – Authenticity • Pages 645-648. • Is it accurate? • Rules 1001 – 1004 – Best Evidence • Pages 648-650. • Is it the best representation of the potential evidence?

6. TEX. R. CIV. P. 196.4 • Must request production of electronic data and specify the form of production. • Have to produce if responsive and reasonably available in the ordinary course of business; if not, must object (and may object to the form). • If electronic data is not reasonably available in the ordinary course of business and court orders compliance, court MUST order requesting party to pay the reasonable expenses of any extraordinary steps required to retrieve and produce.

7. Evidentiary Issues • Admissibility • Authentication • Best Evidence Rule • Expert Testimony

8. Admissibility Issues • Data as a business record is generally admissible, if it really is a business record. • Computer presentations “assist” the trier of fact: • Proof of HOW the event occurred (accident reconstruction) • Demonstrating the PARTY’s point of view • As a SUMMARY of the evidence (Rule 1006) • Technology used to enhance the evidence – photos or videos.

9. Authenticity • FRE 901(a) • Is the evidence sufficient to support a finding that the matter in question is what proponent claims? • Determining the degree of foundation required to authenticate electronic evidence depends on the quality and completeness of the data input, the complexity of the computer processing, the routines of the computer operation and the ability to test and verify the results.

10. FRE 901(b) • Methods of authentication include: • Testimony of witness with knowledge; • Comparison by trier or expert witness; • Distinctive characteristics and the like (e-mail address, hash values, “reply” doctrine); • Public records or report; and • Process or system.

11. FRE 902 • Methods by which information may be authenticated without extrinsic evidence or sponsoring testimony. • Three ways to authenticate e-records: • 902(5) Official publications • 902(7) Trade inscriptions • 902(11) Certified domestic records of regularly conducted activity (authenticate business records under FRE 803(6)).

12. Getting e-documents admitted. • Texas Rule of Civil Procedure 193.7: • A party’s production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial unless — within ten days or a longer or shorter time ordered by the court, after the producing party has actual notice that the documents will be used — the party objects to the authenticity of the document, or any part of it, stating the specific basis for the objection.

13. Getting e-documents admitted. • The Business Records Exception. • Authenticity established by demonstrating that a computer record was maintained in the ordinary course of business by an individual with knowledge of the events recorded. In Longoria v. Greyhound Lines, Inc., 699 S.W.2d 298, 301 (Tex. App.—San Antonio 1985, no writ). • No higher standard with regard to electronic information. See Longoria v. Greyhound Lines, Inc., 699 S.W.2d 298, 303 (Tex. App.—San Antonio 1985, no writ).

14. UNITED STATES v. SALGADO250 F. 3d 438 (6th Cir. 2001) • "A business record must satisfy four requirements in order to be admissible under FRE 803(6): • 1. It must have been made in the course of a regularly conducted business activity; • 2. It must have been kept in the regular course of that business; • 3. The regular practice of that business must have been to have made the memorandum; and • 4. The memorandum must have been made by a person with knowledge of the transaction or from information transmitted by a person with knowledge."

15. Getting e-documents admitted. • The business record affidavit in Rule of Evidence 902(10). • Requires the filing of an affidavit at least fourteen days before trial stating the information necessary to establish the documents as business records. • This procedure has been utilized notwithstanding objections the affidavits contain hearsay. See Fullick v. Baytown, 820 S.W.2d 943 (Tex. App.—Houston [1st Dist.] 1991, no writ). • Complying with this procedure allows a witness testifying at trial to provide a summary of the data contained within the larger volume of information.

16. Practice Tips • Memorialize each step of the collection and production process to bolster reliability. • Use every opportunity during discovery to authenticate potential evidence. • For pretrial disclosures under F.R.C.P. 26(a), you have 14 days to file objections or possible waiver; • Documents produced by opposing party are presumed to be authentic – burden shifts • Requests for Admissions • Request stipulation of authenticity from opposing counsel

17. Practice Tips • Be ready to provide with enough information to understand the technology issues as they relate to the reliability of the evidence at hand. • Consider case management tools that might assist in addressing evidentiary problems concerning some of the more complex issues (such as “dynamic” data in a database or what is a “true and accurate copy” of ESI). • Keep your audience in mind.

18. So how do I authenticate? E-mail? • Witness with personal knowledge (901(b)(1)) • Expert testimony or comparison with authenticated examples (901(b)(3)) • Certified copies of business record (902(11))

19. So how do I authenticate? Website Postings • Witness with personal knowledge (901(b)(1)) • Expert testimony (901(b)(3)) • Distinctive characteristics (901(b)(4)) • Public records (901(b)(7)) • System or process capable of proving a reliable result (901(b)(9)) • Official publications (902(5))

20. So how do I authenticate? Text Messages and Chat Rooms • Witness with personal knowledge (901(b)(1)) • Circumstantial evidence of distinctive characteristics (901(b)(4)) Computed Stored Records and Data • Witness with personal knowledge (901(b)(1)) • Expert testimony (901(b)(3)) • Distinctive Characteristics (901(b)(4) • System or process capable of proving a reliable result (901(b)(9))

21. So how do I authenticate? Computer Animations and Computer Simulations • Witness with personal knowledge (901(b)(1)) • Expert testimony (901(b)(3)) Digital Photographs • Witness with personal knowledge (901(b)(1)) • System or process capable of providing reliable result (901(b)(9))

22. Best Evidence Is the evidence “original”, “duplicate”, “writing”, “recording” (1001)? Rule 1002 requires the original to prove the contents of a writing, recording or photograph unless “secondary evidence” (any evidence other than original or duplicative) is admissible.

23. Best Evidence • Duplicates are admissible as originals unless question about authenticity or other unfairness (1003) • Proof of the contents of writing permitted through “secondary evidence” (1004) if: • Non-bad faith loss/destruction of original/duplicate • Inability to subpoena original/duplicate • Original/duplicate in possession, custody, control of opposing party • “Collateral record” (i.e., not closely related to controlling issue in case) • Admission of summary of voluminous books, records or documents (1006)

24. UNITED STATES v. BENNETT363 F. 3d 947 (9th Cir. 2004) • Best evidence rule applies "when a witness seeks to testify about the contents of a writing, recording or photograph without producing the physical item itself - particularly when the witness was not privy to the event the contents describe." • Officer's testimony violated the best evidence rule on two grounds. • GPS display was a writing or recording that the GPS had compiled about the path of the boat; therefore Officer Chandler was testifying about the GPS's contents. • Officer never observed the boat traveling. • The GPS itself or a printout of the data would have been the best evidence under FRE 1001(3).

25. Hearsay • Electronic information, like other written documents, may be hearsay and is inadmissible without applying a recognized exception to the hearsay rule. • Some courts have determined that e-mail messages constitute inadmissible hearsay. • Parties often employ the business records exception to the hearsay rule as a means to introduce electronic evidence during trial.

26. Chain of Custody • Issues related to chain of custody also raise some special concerns at trial for the introduction of electronic information. Parties should be prepared to argue chain of custody issues at trial, both offensively and defensively, as they are likely to come up regarding electronic information.

27. Expert Testimony In Re Three Mile Island Litigation, 193 F.3d 613 (3 rd Cir. 1999) Has the theory or technique 1. been tested; 2. been subjected to peer review and publication; 3. subjected to known or potential rate of error and existence of standards 4. has "general acceptance" in the scientific community? What does this look like? How do you challenge this kind of testimony?

28. Evidence Issues in E-Discovery UNIVERSITY OF HOUSTON Summer III 2010 – 5397 E-Discovery