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OLD WINE, NEW BOTTLE:
The Basics of E-Discovery &
How To Effectively Authenticate ESI and
Get It Admitted
Chicago Volunteer Legal Services
Dara Chevlin Tarkowski
Litigation Associate & E-Discovery Practice
Katten Muchin Rosenman LLP
0
Basic Familiarity with ESI Practices & Pitfalls
is Essential to Modern Practice of Law
•
Electronically stored information is everywhere and growing,
and it takes many forms, with only more on the way.
– ESI encompasses far more than just email, documents, photos
and instant messages.
– ESI = “any information created, stored, or best utilized with
computer technology of any type.”
•
Important to know how to properly handle your client’s ESI.
•
Also important to know how to get your opponent’s ESI and
use it effectively.
•
Advance planning and preparation will equip you to more
efficiently navigate the rules and can give you the upper
hand in pursuing e-discovery.
1
Key Steps in the E-Discovery Process
2
Much Ado About Something
•
Amendments to the federal rules established a practical and
philosophical framework for the conduct of electronic discovery.
•
Mandate earlier and more extensive involvement by counsel and
clients to timely and successfully meet discovery obligations.
•
Mishandling e-discovery matters can have serious -- even
disastrous -- consequences.
•
Failing to request the proper ESI
•
High-profile examples include:
– Qualcomm v. Broadcom -- $8.5M in attorneys’ fees, referral of
certain counsel to state bar association, and other sanctions
– In re Hawaiian Airlines – Award of $80M in damages plus costs
– Coleman v. Morgan Stanley – Adverse inference = $1.57B
verdict
3
Amended Federal Rules Framework
•
FRCP 16(b) encourages initial scheduling order to include provisions for
addressing e-discovery disclosures and discovery.
•
FRCP 26(a)(1)(B) adds “ESI” to the list of required initial disclosures.
•
FRCP 26(b)(2)(B) draws distinction between accessible and inaccessible
data and creates cost-shifting opportunities.
•
FRCP 26(b)(5)(B) & 26(f)(4) authorize “claw back” and “quick peek”
provisions in discovery orders.
•
FRCP 26(f) adds e-discovery disclosure and discovery to the list of topics to
be discussed at the initial planning conference.
•
FRCP 34(b) establishes protocols regarding the form of production of ESI.
•
Form 35 adds a description of the parties’ e-discovery proposals.
•
FRCP 37(f) says ESI lost as result of routine, good faith operation of an
electronic information system should not result in sanctions.
•
FRCP 45 clarifies that records subpoenas include ESI.
4
What -- Me worry?
5
Understanding the Amended Federal Rules is
Just the First Step
•
Some federal courts have adopted even more detailed
protocols or procedures regarding disclosure and discovery
of ESI.
– 7th Circuit E-Discovery Pilot Program
•
Many state courts have since adopted rules similar to the
federal amendments or plan to issue guidelines to state
court judges.
•
Illinois law is relatively silent on ESI and has not adopted its
own version of the Federal Amendments.
6
E-Discovery in Illinois State Courts
•
Supreme Court Rule 201(b)(1): “The word ‘documents,’ as used in
these rules, includes, but is not limited to, papers, photographs,
films, recordings, memoranda, books, records, accounts,
communications and all retrievable information in computer
storage.”
•
Committee Comment: Amendment leaves “no question but that a
producing party must search its computer storage when responding
to a request to produce documents pursuant to [Rule 214].”
•
Committee Comment: Definition of “documents” expanded to
recognize “the increasing reliability on computer technology and
thus obligates a party to produce on paper those relevant materials
which have been stored electronically.”
7
It pays to “be prepared” and can cost you if
you’re not.
•
E-discovery “preparedness” is mostly
about:
– Understanding your client's
information technology and records
management operations and
environment;
– Being able to accurately describe
and document them in required
meet & confers and disclosures; and
– Knowing how to properly request
ESI and knowing how to introduce it
in court.
8
Determine What’s There (Requesting Party)
•
Know what to expect
– Determine from your client what forms of relevant ESI
should be there – e.g., emails and other
communications, documents drafted or exchanged, data,
programs, applications, etc.
– Remember, ESI lives in many places other than central
servers – PDAs, cell phones, home computers, external
hard drives, flash drives, etc.
•
Initial Case Management Conferences – these are great
opportunities to discuss any potentially relevant ESI to the
case
•
Newest form of requested ESI  SOCIAL MEDIA
9
Determine What’s There (Requesting Party)
•
Take full advantage of the rules governing initial disclosures
•
Initial obligations require disclosure of discoverable ESI
– FRCP 16(b) -- requires disclosure of a party’s inform
technology architecture and environment at the very beginning
of the lawsuit
– FRCP 26(f) – ESI disclosure and discovery now on list of topics
discussed at initial planning conference
•
Judicial attitudes are changing. Perfunctory discussions are
insufficient
•
Be prepared and aggressive
10
Illinois Best Practices
•
Illinois circuit judges can pursue case management
conferences under Illinois Supreme Court Rule 218.
•
Such conferences can produce orders that address
“disclosures or discovery” of ESI and that incorporate any
agreements the parties reach for asserting claims of
privilege or of protection of trial-preparation material after
production.
11
Determine if the Sources of ESI are Reasonably
Accessible (Responding Party)
•
Reasonably accessible ESI follows standard discovery rules,
with the responding party bearing costs of production.
– And yes, Social Media ESI is reasonably accessible in
most cases!
•
Not reasonably accessible ESI is not typically searched or
produced, but may need to be preserved.
•
Burden is on responding party to show that sources of ESI
are not reasonably accessible because of undue burden or
cost.
•
Requesting party can still discover inaccessible sources for
“good cause,” although costs may be shifted.
12
What is “Not Reasonably Accessible”?
•
Court rejected contention that production of emails of officers and
employees other than plaintiff (kept in LotusNotes rather than less
accessible backup media) would constitute an undue burden and expense,
in light of the Court’s ability to apportion costs between parties. Court
compared $20,000 cost of producing plaintiff’s email to those in Zubulake,
where 5 sample disks alone cost $19,000. Parkdale America, LLC v.v
Travelers Cas. And Sur. Co.
•
3 to 4 year-old back up tapes stored in the City Attorney’s Office were “not
currently accessible” since defendant did not have the hardware needed to
access them. The cost of restoration outweighed the possible yield of
relevant and probative information. Palgut v. City of Colorado Springs
•
HYPOTHETICAL – What happens if your client’s phone does not retain
text messages?
13
Preservation & Collection
14
Obligation to Preserve ESI (Federal)
•
The identification of ESI as “not reasonably accessible” does
not relieve a party of its common law or statutory duties to
preserve potentially discoverable evidence. Advisory
Committee Notes, FRCP 26(b)(2)(B).
•
“A party to litigation has an obligation to preserve relevant
evidence. While a litigant is under no duty to keep or retain
every document in its possession ... it is under a duty to
preserve what it knows, or reasonably should know, is
relevant in the action, is reasonably calculated to lead to the
discovery of admissible evidence, is reasonably likely to be
requested during discovery and/or is the subject of a
pending discovery request.” Healthcare Advocates, Inc. v.
Harding, Earley, Follmer & Frailey
15
Obligation to Preserve ESI (Federal)
•
Scope of what must be preserved is often significantly
beyond what might be retrieved, reviewed and/or produced
in discovery. Oklahoma, ex rel. Edmonson
•
Although Advisory Committee Notes provide for cost-shifting
with respect to the production of not reasonably accessible
ESI, no provision exists for shifting costs of preserving such
ESI
16
Obligation to Preserve ESI (Illinois)
•
General rule is that there is no obligation to preserve evidence absent some
duty to do so. See Jones v. O’Brien Tire & Battery Service Center, Inc., 374
Ill.App.3d 918, 924 (5th Dist. 2007)
•
Two-prong test as to whether duty exists (see Dardeen v. Kuehling, 213
Ill.2d 329 (2004); Boyd v. Travelers Ins. Co., 166 Ill.2d 188 (1995):
– Relationship Prong: Determine whether duty to preserve evidence
arises by agreement, contract, statute, special circumstances, or
voluntary assumption
– Foreseeability Prong: If so, determine whether duty extends to
evidence at issue – i.e., whether a reasonable person should have
foreseen that the evidence was material to potential litigation.
•
When a party fails to preserve evidence despite a duty to do so, a cause of
action exists for spoliation of evidence. This is not an independent tort, but
rather a type of negligence. Stoner v. Wal-Mart Stores, Inc., 2008 WL
3876077 (C.D. Ill. 2008)
•
This cause of action requires the existence of a duty, a breach of duty,
causation, and damages. Dardeen, 213 Ill.2d at 336.
17
Obligation to Preserve ESI (Illinois)
•
Scope of the Duty: The duty arises during litigation, but also
extends to that period before the litigation when a party reasonably
should know that the evidence may be relevant to anticipated
litigation. The duty remains as long as the party in possession of
the evidence should reasonably foresee that further evidence,
material to a potential civil action, could be derived from the
physical evidence.
•
Breach of Duty: The evidence has been lost, altered, or destroyed.
•
Causation: To plead causation, a plaintiff must allege sufficient
facts to support a claim that the loss or destruction of the evidence
caused the plaintiff to be unable to prove an underlying lawsuit.
•
Damages: A threat of harm not yet realized is not actionable. The
plaintiff must allege that a defendant’s loss or destruction of the
evidence caused the plaintiff to be unable to prove an otherwise
valid cause of action.
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When Does the Duty to Preserve Arise?
•
As soon as a potential claim is identified, a litigant is under a
duty to preserve evidence which it knows or reasonably
should know is relevant to the action.
•
However, a party’s duty to preserve certain evidence “must
be based on more than an equivocal statement of
discontent.” Cache La Poudre Feeds, LLC v. Land O’Lakes,
Inc.
•
Propounding of demand letter held to be point in time when
litigation should have become “reasonably anticipated.”
Consolidated Aluminum Corp. v. Alcoa, Inc.
•
Court held that duty to preserve was triggered by
conversations with a supervisor one year prior to filing of
EEOC complaint. Broccoli v. Echostar Communications
19
When Does the Duty to Preserve Arise?
•
Given existing infringement litigation against music-downloading
service, investor in service should have known litigation against it
was probable, and duty to preserve arose upon receipt of warning
from copyright holder that recording industry would be targeting
service's investors. In re Napster, Inc. Copyright Litig.
•
Defendant found to be on notice of potential lawsuit when counsel
for plaintiff wrote letter stating it had been retained to investigate
personal injury that had some connection with defendant’s store.
Stallings v. Bil-Jax, Inc.
•
Mere request that a party preserve evidence found insufficient to
impose a duty to do so absent some further special relationship.
Andersen v. Mack Trucks, Inc., 341 Ill.App.3d 212, 217 (2nd Dist.
2003).
20
Preservation Notices
•
Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003)
– Duty to preserve ESI commences when litigation is
“reasonably anticipated”
•
So, why bother to send a preservation notice?
– Zubulake not binding precedent
– “reasonably anticipated” is subjective
– opportunity to identify important ESI
– first step in creating a record
•
Other factors to consider
– Nature of the dispute
– Polarizing effect/impact on pre-dispute resolution
21
Litigation Hold Notices
•
Automatic or manual?
•
Written notice to each person reasonably likely to have information or
documents related to dispute
– Description of reason for preservation/collection
– Time period covered; is it on-going?
– Definition of types of documents to include (email, folders, shared
drives, hard copies, etc.)
– Description of scope of documents covered
– Include “how to” instructions
– “Attorney-client privilege” designation
– Statement that compliance is a corporate and individual obligation
– Admonition regarding consequences of failing to abide by hold directive
•
Follow-up and affirmations required
•
Reminders are necessary
•
Plan for computers of departing employees
22
Don’t Take “No” For An Answer
What if the other side claims “it’s gone?”
•
Dig deeper – “deleted” data often is recoverable
– How? Take IT deposition
•
Seek order permitting more invasive discovery measures
– e.g., inspection/imaging of servers, hard drives, etc.
•
Move for sanctions
– Not all loss is sanctionable (FRCP 37(f) Safe Harbor)
23
Rule 37(e) “Safe Harbor”
•
“Absent exceptional circumstances, a court may not impose
sanctions under these rules on a party for failing to provide
electronically stored information lost as a result of the routine,
good-faith operation of an electronic information system.”
•
To take advantage of the good faith exception, a party needs to act
affirmatively to prevent the system from destroying or altering
information, even if such destruction would occur in the regular
course of business.
– Where a party fails to suspend it at any time, courts have found
that the party cannot take advantage of Rule 37(e)'s good faith
exception. Doe v. Norwalk Community College
– Where defendant used a wiping tool before handing computers
over to bankruptcy trustee, Rule 37(e) did not apply. United
States v. Krause
24
Rule 37(e) “Safe Harbor” (cont’d)
•
Rule 37(e) does not exempt a party who fails to stop the
operation of a system that is obliterating information that
may be discoverable in litigation. Disability Rights Council of
Greater Washington v. Washington Metropolitan Transit
Authority
•
Under 5th Circuit law of “bad faith,” record did not provide a
basis for severe sanction as an adverse-inference instruction
because there is no showing that relevant electronic
communications were destroyed or that the destruction
occurred in bad faith. Escobar v. City of Houston
25
Illinois Civil or Evidentiary Sanctions
•
Supreme Court Rule 219(c) permits a trial court to impose
sanctions, including dismissal of the cause of action, upon
any party who unreasonably refuses to comply with any
provisions of the discovery rules.
•
The decision to impose a particular sanction is within the
discretion of the trial court and, thus, only a clear abuse of
discretion justifies reversal.
•
Sanctions imposed in Illinois include:
– Dismissal with Prejudice or Default Judgment
– Exclusion of evidence
– Adverse inference instruction to the jury
26
Preserving and Producing ESI stored by third
parties
•
Many courts have recognized an obligation to preserve such data,
reasoning that third-party documents may be in a company's "control."
– Steele Software Sys. Corp. v. DataQuick, 237 F.R.D. 561 (D.Md. 2006)
– A user typically has control over their own social media content to the
extent he or she can still access it.
– Keir v. UnumProvident Corp., 2003 WL 21997747 (S.D.N.Y.) (Found
that defendant failed to communicate in a timely manner or meaningful
way regarding potential preservation obligations of its third-party
provider of e-mail and other computer services).
– In re Triton, 2002 WL 32114464 (E.D. Tex.) (Held that it would have
been prudent and within the spirit of the law for defendant to instruct its
outside directors to preserve and produce any documents in their
possession, custody or control).
– PML North America v. Hartford Underwriters Insurance, 2006 U.S. Dist.
LEXIS 94456 (E.D. Mich.) (Court granted plaintiff's motion to compel
and ordered production of a specifically identified hard drive, a thumbdrive and non-party employee's home laptop computer).
27
Preserving and Producing ESI stored by third
parties
•
Potential evidence must be in a party's "possession, custody, or
control" for any preservation duty to attach. See Phillips v. Netblue,
2007 WL 174459 (N.D. Cal.) ("One cannot keep what one does not
have.")
– Some courts "require production if the party has practical ability
to obtain the documents from another, irrespective of his legal
entitlement to the documents." See Prokosch v. Catalina
Lighting Inc., 193 F.R.D. 633, 636 (D. Minn. 2000) (quoting
United States v. Skeddle, 176 F.R.D. 258, 261 n.5 (N.D. Ohio
1997)).
– Other courts require parties to produce only those documents
they have a legal right to obtain. See, e.g., Chaveriat v.
Williams Pipe Line Co., 11 F.3d 1420, 1427 (7th Cir. 1993)
("But the fact that a party could obtain a document if it tried
hard enough ... does not mean that the document is in its
possession, custody, or control").
28
Production
29
Form of Production (Federal Rules)
•
Rule 34(a) allows the requesting party to specify the form(s)
in which ESI will be produced.
– Unless specified, responding party must produce ESI in
the form in which it is “ordinarily maintained” or a form
that is “reasonably usable.”
– However, cannot produce ESI in a form less useful or
searchable than the form in which it is normally
maintained.
•
Responding party need not produce in more than one form.
•
Consider reviewing or producing in Native File Format
•
Address form of production in FRCP 26(f) conference
30
Form of Production (Illinois Rules)
•
Supreme Court Rule 214 provides that a responding party
must include in its production response “all retrievable
information in computer storage in printed form.”
•
Committee Comment: Rule 214 requires “a party to include
in that party’s production response all responsive information
in computer storage in printed form. This change is intended
to prevent parties producing information from computer
storage on storage disks or in any other manner which tends
to frustrate the party requesting discovery from being able to
access the information produced.”
31
Form of Production Considerations
Native File Format
Fixed Image Format
Metadata rich
Metadata poor
Formulas in spreadsheets visible
Preserves original appearance
Cannot redact
Easy to redact
Quick and cheap
Upfront costs to TIFF
Hard to label
Easy to label
Resource intensive
Must preserve metadata?
Searchable
Searchable
Risk of alteration
Contents preserved
Limits on use
Unlimited use
32
In re Seroquel Products Liability Litig.
•
Failure to produce e-discovery in “any manageable
searchable form” found to be sanctionable.
•
Mere disclosure not enough: ESI must be readable,
searchable, complete (including metadata) and proper
quality assurance techniques employed.
•
“Particularly in complex litigation, there is a heightened need
for the parties to confer about the format of the electronic
discovery being produced.”
33
Other Production Issues
•
“Claw back” and “quick-peek” agreements allow parties to
produce relevant documents before privilege review is
conducted and assert claims of privilege afterwards
•
Committee notes to amended FRCP 26(f) indicate that when
memorialized in a court order, parties to these agreements
are deemed not to have waived the privilege as among
themselves
•
But these agreements may be undesirable or of limited
usefulness. Some courts have held that production of
privileged materials to an opposing party under such
agreements constitutes a waiver of the privilege as to third
parties. Hopson v. Mayor and City Council of Baltimore
34
Authentication and Admissibility of ESI
35
Presentation/Evidentiary Issues
•
“The paperless electronic record involves a difference in the
format of the record that presents more complicated
variations on the authentication problem than for paper
records.” In re Vee Vinhee
– Creditor sought to prove up debt after debtor defaulted,
but court refused to admit creditor’s electronic business
records into evidence because of a defective evidentiary
foundation
– Creditor’s records custodian could not testify in response
to questions about the nature and operation of the
computer system on which the records were maintained
•
Remember that traditional rules of evidence still apply
36
Lorraine v. Markel American Ins. Co.
•
After discovery, both parties moved for summary judgment to
enforce a private arbitrator’s award that damage to plaintiff’s yacht
was caused by lightning.
•
In denying both motions, the court held that emails attached to both
motions and offered as parol evidence were inadmissible due to
parties’ failure to lay the appropriate evidentiary foundation.
•
Magistrate Judge Grimm noted that: “[C]onsidering the significant
costs associated with the discovery of ESI, it makes little sense to
go to all the bother and expense to get electronic information only
to have it excluded from evidence or rejected from consideration
during summary judgment because the proponent cannot lay a
sufficient foundation to get it admitted.”
37
Illinois Rules of Evidence
•
Effective January 1, 2011, incorporate the current state of
the law of evidence in Illinois whenever the Illinois General
Assembly, Supreme Court or Appellate Court has clearly
spoken on a principle of evidentiary law.
•
The Rules also include certain “modernizations,” which the
court says address “noncontroversial developments in the
law of evidence as reflected in the Federal Rules of
Evidence.”
•
In this regard, the Illinois Rules have followed the lead of the
Federal Rules of Evidence and provide for a straightforward
means of authentication of ESI for purposes of admissibility.
38
Illinois Rules of Evidence (Cont’d)
•
Admissibility determined by the court.
•
Ill. R. Evid. 104(a) provides: “Questions of Admissibility Generally.
Preliminary questions concerning the qualification of a person to be
a witness, the 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, the court is not
bound by the rules of evidence except those with respect to
privileges.”
•
Ill. R. Evid. 801 & 802 (Hearsay)
•
Rule 801 defines “hearsay” as “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.”
•
Rule 802 states that “Hearsay is not admissible except as provided
by these rules, by other rules prescribed by the Supreme Court, or
by statute as provided in Rule 101.”
39
Illinois Rules of Evidence (Cont’d)
Ill. R. Evid. 901 & 902 (Authentication)
•
Requirement of Authentication: The requirement of authentication or identification as
to a condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims. Ill. R. Evid. 901(a).
•
Methods of Authentication: Rule 901(b) offers a non-exhaustive list of illustrations of
legitimate methods of authentication. For example:
•
Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to
be. Ill. R. Evid. 901(b)(1).
•
Self Authentication: Rule 902 also lists several categories of documents where
“[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not
required...” These documents include: domestic public documents, foreign public
documents, certified copies of public records, official publications, newspapers and
periodicals, trade inscriptions, acknowledged documents, commercial paper and
related documents, and certified records of regularly conduced activity.
Ill. R. Evid. 201 (Judicial Notice)
•
Under Ill. R. Evid. 201, “[a] judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.”
40
ESI Authentication (Illinois Law)
•
To lay a proper foundation for a document, a party must
present evidence, direct or circumstantial, that shows that
the document is what it purports to be
– Under Supreme Court Rule 216 (b), a party may serve
on any other party a written request for admission of the
genuineness of any relevant documents described in the
request.
– Illinois courts authenticate writings based on
appearance, contents, and substance
41
ESI Authentication (Illinois Law)
•
People v. Downin, 357 Ill.App.3d 193 (3rd Dist. 2005) -- Discussed
how direct or circumstantial evidence can be used to authenticate
e-mails in various ways:
– Self-identification by the parties
– Ongoing exchange of e-mails by the parties
– Unique and personal nature of the e-mail
– Overt acts of parties in conjunction with an e-mail
– Direct or circumstantial evidence establishing author and date
of transmission
•
E-mails held to be inadmissible because there was neither direct
nor circumstantial evidence of their authenticity. CCP Limited
Partnership v. First Source Financial, Inc., 368 Ill.App.3d 476 (1st
Dist. 2006).
42
Authenticating Different Types of ESI
•
Print outs
•
Emails
•
Text Messages and Instant Messages
•
Voicemail and Digital Recordings
•
Chat Room & “Cut and Paste” Transcripts
•
Websites
•
Social Media – Facebook, MySpace (Photos, Video,
Postings)
43
Computer Print Outs
Illinois Case Illustrations
•
Computer print outs properly admitted: Anderson v. AlbertoCulver USA, Inc., 337 Ill. App. 3d 643, 273 Ill. Dec. 404, 421,
789 N.E.2d 304, 321 (1st Dist. 2003) (trial court properly
admitted computer generated flight planning documents in
wrongful death case; these were records directly generated
by a computer, which are generally admissible as
representing the tangible result of the computer's internal
operations, as opposed to printouts of computer stored
records, which constitute statements placed into the
computer by out-of-court declarants, which cannot be tested
by cross-examination and are therefore inadmissible absent
an exception to the hearsay rule)
44
Emails
•
Emails were admissible and properly authenticated. People v. Downin, 357 Ill. App. 3d
193 (3rd Dist. 2005) – Affirming a judgment convicting the defendant of aggravated
criminal sexual abuse of a 16-year-old girl, the court held that the trial court did not
abuse its discretion in admitting into evidence two printed versions of e-mails
purportedly sent by the defendant to the victim and which contained admissions of
guilt, despite claims that the e-mails were not sufficiently authenticated. The court
explained that in admitting such evidence the prosecution need only prove a rational
basis upon which the fact finder may conclude that the exhibit did in fact belong to the
defendant. The court further explained that an e-mail message may be authenticated
by direct or circumstantial evidence, that circumstantial evidence of authenticity
includes such factors as appearance, contents, and substance, and that prima facie
authorship of a message may include a showing that the writing contains knowledge of
a matter sufficiently obscure so as to be known to only a small group of individuals.
•
Emails found to be admissible. Where a medical resident claimed he was improperly
terminated from an anesthesiology residency program at a state university medical
school by its director, in Fenje v. Feld, 301 F. Supp. 2d 781 (N.D. Ill. 2003), aff'd on
other grounds, 398 F.3d 620, (7th Cir. 2005) (applying federal and Illinois law), the
court ruled that two e-mails submitted by the director which purported to be from the
resident to the anesthesiology department's keeper of records, one of which was
requested to be printed and provided to the director, were sufficiently authenticated so
as to be admissible. The court noted that the records keeper stated in her affidavit that
these were accurate copies of e-mails she received from the resident, that the printed
e-mails showed a source e-mail address that matched that shown on the resident's
letterhead that was included in other authenticated documents, and that the content of
the e-mails was consistent with other evidence. The court added that the records
keeper also adequately authenticated an e-mail communication she received and
replied to as between herself and another university employee.
45
Emails (Cont’d)
•
E-mails held to be inadmissible because there was neither direct nor circumstantial
evidence of their authenticity. CCP Limited Partnership v. First Source Financial, Inc.,
368 Ill. App. 3d 476 (1st Dist. 2006). The Court ruled that the party had not
authenticated certain e-mails between the bank and a corporation. A bank employee
swore in an affidavit: “The e-mails attached have been maintained in the ordinary
course of business in [the bank's] computer system, and I assisted in retrieving them
for use in this matter.” A partnership official similarly swore that the e-mails attached to
the partnership's motions for summary judgment were “maintained in the ordinary
course of business in [the partnership's] computer system.” Neither affiant said
anything about his participation in the correspondence or the occasion for receipt of the
e-mail. The court explained that without proper authentication no document is
admissible, that an affidavit may provide the authentication needed to make a
document admissible, and that to make documents admissible the proponent must
present evidence to demonstrate that the document is what its proponent claims it to
be.
•
Email not properly authenticated: In Complete Conference Coordinators, Inc. v. Kumon
North America, Inc., 394 Ill. App. 3d 105 (2d. Dist. 2009), the Second District held that
the mere fact that former employee produced in discovery certain printouts of e-mail
messages allegedly created or received by her was insufficient to authenticate the
messages. As such, the emails were deemed inadmissible in employer’s opposition to
former employee’s motion for summary judgment in employer's action against former
employee for intentional interference with a contractual relationship.
46
Text Messages
•
In People v. Chromik, No. 3–09–0686, 2011 WL 1346923 (3d. Dist. 2011), the Illinois
Appellate Court found that the trial court properly authenticated and admitted into
evidence a document which purported to be a transcription created by the principal that
recounted the messages as read to him by the victim.
•
The court noted that “All acknowledged that the transcription may not have evinced,
with 100% accuracy, the text messages sent from defendant to K.B. as some words
were changed via the word processor's spell-check feature. Nevertheless, the dates
and times contained on the document and attributed to text messages sent from
defendant to the victim mirrored those identified in the phone company records. K.B.
testified as to the content of the messages and defendant acknowledged the accuracy
of a number of the messages as transcribed by the principal.”
•
The court explained that “[t]he trial judge ensured that all knew the document was
exactly what it purported to be: a transcription of the victim's reading of the text
messages. The judge allowed both sides to argue over their interpretation of the
messages and allowed defendant to admit evidence indicating the spell-check program
on the word processor used to create the document likely changed the wording or
spelling of some messages.
•
While defendant attacks the credibility of the document's substance, bringing to light
the fact that it may not have perfectly reproduced every message he sent to K.B., this
does not change the fact that the trial court properly authenticated the document as
being nothing more than exactly what it purported to be. Defendant did not deny
sending even a single one of the purported text messages. We find no error.
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Instant Messages
•
Instant messages properly authenticated and admitted: In People v.
Clevenstine, 891 N.Y.S.2d 511 (N.Y. App. Div. 2009), the
defendant was convicted of various sex crimes, perpetrated against
two teenage sisters. Id. at 513. Several witnesses testified as to
the contents and authenticity of instant messages exchanged
between defendant and one of the victims, which indicated
defendant and victim had engaged in sexual activity. Id. The
witnesses included: the victims; an investigator who retrieved the
communications from the hard drive of the victims’ computer; a
legal compliance officer for MySpace, the network through which
the instant messages were exchanged; and defendant’s wife, who
first discovered the communications. Id. at 514. The witnesses’
testimonies were deemed sufficient to authenticate the instant
message communications and, as such, the communications
constituted admissible evidence. Id.
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Voicemails and Digital Recordings
•
Ill. R. Evid. 901(b)(5) “Voice identification” states that “[i]dentification of a
voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at any
time under circumstances connecting it with the alleged speaker. This rule
allows a witness to listen to a recording (whether a tape recording or digital
recording) as a way to authenticate a voicemail message as being the voice
of the person in question.
•
A voicemail message left on a cell phone, for example, is merely a type of
audio recording. Though you may be able to properly identify the voice, this
alone does not authenticate the message itself as an accurate recording of
what that person said. A litigant will need additional testimony (such as a
third party who overheard the conversation) to lay the proper foundation for
that.
•
When properly authenticated sound recordings are admissible if they
accurately portray the conversation or sounds. Such records are routinely
allowed into evidence. See, e.g., People v. Griffin, 375 Ill. App. 3d 564 (1st
Dist. 2007). These same standards are used when authenticating and
admitting voicemails or digital recordings.
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Chat Rooms and “Cut and Paste” Documents
•
Transcript of Online Chat Inadmissible: The Illinois Court of Appeals found that the prosecution had
failed to establish a sufficient foundation for the admission of transcripts of on-line chat room
conversations captured using Power Tools software by an undercover police investigator posing as a
minor in an America Online (AOL) chat room. People v. Johnson, 376 Ill. App. 3d 175, 875 N.E.2d
1256 (Ill. App. Ct. 2007).
•
The defendant, convicted of indecent solicitation of a minor, argued that the trial court erred in
allowing the State to introduce the transcripts without an adequate foundation, noting that no AOL
representative testified to their accuracy. The Court of Appeals noted that “[i]n the case of computer
generated records, a proper foundation additionally requires a showing that: standard equipment was
used; the particular computer generates accurate records when used appropriately; the computer was
used appropriately; and the sources of the information, the method of recording utilized, and the time
of preparation indicate that the record is trustworthy and should be admitted into evidence.” 875
N.E.2d at 1259-60.
•
The content of a document also may be admitted through the testimony of a witness. For
example, a record from a police investigation may be admissible as a past recollection recorded if the
proper foundation is laid, showing, among other things, “‘that the facts in the report have been
recorded at the time of the occurrence or soon thereafter, and that the report is both truthful and
accurate.’”
•
Here, the State did nothing to establish a foundation for the admissibility of the chat room transcripts
as evidence: the accuracy of the transcripts was never addressed; the State offered no evidence of
the efficacy of AOL or Power Tools records; and it did not establish that the police investigator was a
competent operator of the systems used to compile the transcripts.
•
Accordingly, the Court concluded that the admission of the transcripts without an adequate foundation
was reversible error and ordered a new trial.
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Social Media
•
Statements Made on Social Networking Site Admitted: Defendant's prideful statements
on social networking website, including statement that “Society labels me as an outlaw
and criminal,” were relevant in prosecution for the murder of two-year-old child to rebut
defense theory that made defendant's character a central issue and contended that
defendant's intent could only have been “reckless” and not criminal. Clark v. State, 915
N.E.2d 126 (Ind. 2009).
•
Messages on social media site were admitted in error: In Commonwealth v. Williams,
926 N.E.2d 1162 (Mass. 2010). Computer messages on social networking Internet site
were not authenticated, although foundational testimony established that the messages
were sent by someone with access to account of alleged writer of messages;
foundational testimony did not identify the person who actually sent the messages,
whether anyone other than alleged writer could communicate from the Web page, how
secure the Web page was, who could access it, and whether codes were needed for
access.
•
Social Media Profile Pages Improperly Authenticated: The Maryland Supreme Court
reversed the appellate court decision and ordered a new trial for defendant due to lack
of proper authentication for the printout of the MySpace page. Since the State only
identified the date of birth and the picture of the girlfriend with defendant appearing on
the site, someone other than the girlfriend could have created the profile and posted
the threat. Griffin v. State, 2011 Md. LEXIS 226 (Md. Apr. 28, 2011).
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Social Media (Cont’d)
•
Photos on MySpace.com Admissible: The Ohio courts also dealt with the admissibility
of photographs posted on a social networking website and testimony about the creation
of the website page in State v. Gaskins, 2007 WL 2296454 (Ohio Ct. App. Aug. 13,
2007). To defend against a charge of unlawful sexual conduct with a minor, the
defendant sought to introduce evidence that the complainant held herself out to the
world as an eighteen-year-old on the website MySpace.com. Regarding the
photographs, the Court affirmed the trial court’s decision, which permitted the
introduction of photographs that were posted on the complainant’s MySpace.com
website page, noting that the photographs were properly authenticated. The defendant
had elicited testimony from a witness that the photographs accurately depicted what
the complainant looked like prior to the incident in June 2005 and were relevant to how
the complaint looked on the date of the incident. To evaluate the trial court’s decision to
prohibit questioning regarding the MySpace.com website page, the Court of Appeals
mulled over two important facts the appellant-defendant had failed to prove. First, the
defendant had offered no evidence that he ever saw the complainant’s MySpace.com
page. Second, defendant did not establish that the website was created before the
date of the assault. Thus, in holding that the trial court had properly prohibited
questioning regarding the website, the Court explained that whether the complainant
represented herself as eighteen years old after the incident occurred was not relevant
since the charge centered on the complainant’s age at the time of the incident.
•
Facebook pictures of a Mother drinking and socializing were properly admitted into
evidence according to the Court of Appeals of Kentucky in an appeal from a divorce
and custody order. LaLonde v. LaLonde, No. 2009-CA-002279-MR, 2011 WL 832465
(Ky. Ct. App. Feb. 25, 2011). The Court held that the photos posted on the social
networking site were properly authenticated by testimony of the Mother and thus,
properly admitted into evidence.
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Free Resources on ESI
•
Appendix A to The Sedona Conference© Commentary on
ESI Evidence & Admissibility (March 2008) contains an
excellent practical guide for working with ESI so that it
ultimately will be admissible. The guide includes a checklist
of the potential methods of authentication under FRE 901
and 902 that can be used for various types of ESI. The
Commentary is available for download at
http://www.thesedonaconference.org/content/miscFiles/publi
cations_html?grp=wgs110
•
E-Discovery Blog, including case summary database:
http://www.ediscoverylaw.com/
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Questions?
Dara Chevlin Tarkowski
Litigation Associate & National E-Discovery Practice
Katten Muchin Rosenman LLP
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