Presentation is loading. Please wait.

Presentation is loading. Please wait.

E-Discovery and Forensics: Effectively Preserving Evidence Presented by: Ronald I. Raether, Jr. Faruki Ireland & Cox P.L.L. June 19, 2007.

Similar presentations


Presentation on theme: "E-Discovery and Forensics: Effectively Preserving Evidence Presented by: Ronald I. Raether, Jr. Faruki Ireland & Cox P.L.L. June 19, 2007."— Presentation transcript:

1 E-Discovery and Forensics: Effectively Preserving Evidence Presented by: Ronald I. Raether, Jr. Faruki Ireland & Cox P.L.L. June 19, 2007

2 Electronic Document Discovery Why all the Fuss Why all the Fuss Old Rules/New Tricks Old Rules/New Tricks Practice Tips Practice Tips

3

4

5 Why all the Fuss “The jury found [Anderson] guilty on the basis [of this statement]” Houston Chronicle – June 25, 2002

6 Why all the Fuss $604m Compensatory Damages $604m Compensatory Damages $850m Punitive Damages $850m Punitive Damages “Morgan Stanley executives had clearly misled the court and the plaintiffs as to the existence of s. “ “Morgan Stanley executives had clearly misled the court and the plaintiffs as to the existence of s. “ Fourth District Reverses Based on Measurement of Damages Fourth District Reverses Based on Measurement of Damages

7 ELECTRONIC DISCOVERY 93% of Corporate documents created electronically 93% of Corporate documents created electronically 70% of those NEVER migrate to paper 70% of those NEVER migrate to paper corporations are expected to generate 17.5 trillion electronic documents annually corporations are expected to generate 17.5 trillion electronic documents annually Office workers exchange est. 2.8 billion e- mails per day Office workers exchange est. 2.8 billion e- mails per day

8 ELECTRONIC DISCOVERY Floppy Diskette Floppy Diskette 100 pages or ½ inch stack 100 pages or ½ inch stack CD CD 52,500 pages or 16 boxes 52,500 pages or 16 boxes DVD DVD 350,000 pages or about 117 boxes 350,000 pages or about 117 boxes 1 Terabyte 1 Terabyte 100,000,000 pages or about 30,000 boxes 100,000,000 pages or about 30,000 boxes

9 Law Develops FRCP adds “data compilations Printing data insufficient (Armstrong v. Executive Office of the President) Electronic Discoverable; paper not substitute (Anti- Monopoly) Request for “documents” includes deleted s (Playboy) Computerized data includes voice mail, , back up files, data files, program files, system files, web site log files and more (Kleiner)

10 Law Develops Negligence sufficient to impose adverse inference (Residential Funding) Counsel must explain preservation obligation (Metropolitan Opera) Counsel has affirmative obligation to become familiar with client systems and data retention policies (Zubalake V) Adverse Inference and burden shifting for multiple violations (Morgan Stanley) Landscape Shifts for Lawyers

11 Old Rules-New Tricks Discoverability Amendments to Discovery Rules Amendments to Discovery Rules Five Year Project What are the differences between paper and electronic documents? What are the differences between paper and electronic documents? Do these differences create problems that can or should be addressed by changes to the FRCP? Do these differences create problems that can or should be addressed by changes to the FRCP? If there are problems that rulemaking can address, what rules can be crafted to suit that purpose? If there are problems that rulemaking can address, what rules can be crafted to suit that purpose?

12 Old Rules-New Tricks Discoverability Amendments to Discovery Rules Amendments to Discovery RulesTimeline 2000: Mini-conference (Hastings and Brooklyn Law School) 2000: Mini-conference (Hastings and Brooklyn Law School) 2001: FJC studies electronic discovery disputes 2001: FJC studies electronic discovery disputes 2002/2003: Input solicited 2002/2003: Input solicited Feb , 2004: Formal Conference at Fordham Feb , 2004: Formal Conference at Fordham May 2004 – Feb 2005: Public Comment May 2004 – Feb 2005: Public Comment Effective December 1, 2006 Effective December 1, 2006

13 Old Rules-New Tricks Discoverability Discoverability Spoliation Spoliation Admissibility Admissibility

14 Old Rules-New Tricks Discoverability "Rules 26(b) and 34 for the Federal Rules of Civil Procedure instruct that computer- stored information is discoverable under the same rules that pertain to tangible, written materials.“ Rowe Entm't, Inc. v. The William Morris Agency (S.D.N.Y. May 9, 2002). "Rules 26(b) and 34 for the Federal Rules of Civil Procedure instruct that computer- stored information is discoverable under the same rules that pertain to tangible, written materials.“ Rowe Entm't, Inc. v. The William Morris Agency (S.D.N.Y. May 9, 2002).

15 Old Rules-New Tricks Discoverability Amendments to Discovery Rules Amendments to Discovery Rules Rule 16 – Early Meet and Confer Rule 16 – Early Meet and Confer Modification of disclosure timing Modification of disclosure timing Disclosure or discovery of electronically stored information Disclosure or discovery of electronically stored information Preservation Preservation Permits agreements regarding privilege Permits agreements regarding privilege Format Format

16 Old Rules-New Tricks Discoverability Amendments to Discovery Rules Amendments to Discovery Rules O’Bar v. Lowe’s Home Centers, Inc (W.D.N.C. May 2, 2007) O’Bar v. Lowe’s Home Centers, Inc (W.D.N.C. May 2, 2007) Adopts “Suggested Protocol for Discovery of ESI,” Maryland U.S.D.C. Scope of Requests Scope of Requests Meta-Data Meta-Data Methods of Production Methods of Production Preservation Preservation In re Seroquel Prods. Liab. Litig. (M.D. Fla. Jan. 26, 2007), MDL Case Management Order addresses e- Discovery In re Seroquel Prods. Liab. Litig. (M.D. Fla. Jan. 26, 2007), MDL Case Management Order addresses e- Discovery

17 Old Rules-New Tricks Discoverability Amendments to Discovery Rules Amendments to Discovery Rules Rule 26 Rule 26 Includes “electronically stored information” Includes “electronically stored information” Identify (but not produce) electronically stored information not “reasonably accessible because of undue burden or expense” Identify (but not produce) electronically stored information not “reasonably accessible because of undue burden or expense” Rule 45 – includes electronically stored information Rule 45 – includes electronically stored information

18 Old Rules-New Tricks Discoverability Fed. R. Civ. P. 34 requires a party to produce documents "as they are kept in the usual course of business." Fed. R. Civ. P. 34 requires a party to produce documents "as they are kept in the usual course of business." "electronic documents [must be produced] in the native electronic format (or a mutually agreeable format)." United States v. First Data, 287 F. Supp. 2d 69 (D.D.C. 2003). "electronic documents [must be produced] in the native electronic format (or a mutually agreeable format)." United States v. First Data, 287 F. Supp. 2d 69 (D.D.C. 2003). Exceptions – Delaware does not require Native Format or Metadata. Wyeth v. Impax Labs., Inc. (D. Del. Oct. 26, 2006) Exceptions – Delaware does not require Native Format or Metadata. Wyeth v. Impax Labs., Inc. (D. Del. Oct. 26, 2006)

19 Old Rules-New Tricks Discoverability Amendments to Discovery Rules Amendments to Discovery Rules Rules 33 and 34 Rules 33 and 34 Can produce electronically stored information as response Can produce electronically stored information as response May be required to explain how to access data May be required to explain how to access data Can request information to be produced in specific format Can request information to be produced in specific format Form normally maintained Form normally maintained Reasonably usable Reasonably usable Only one form Only one form

20

21 Discoverability "The law is clear that data in computerized form is discoverable even if paper 'hard copies' of the information have been produced.... [T]oday it is black letter law that computerized data is discoverable if relevant." Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL , 1995 U.S. Dist. LEXIS 16355, at *1 (S.D.N.Y. Nov. 3, 1995). "The law is clear that data in computerized form is discoverable even if paper 'hard copies' of the information have been produced.... [T]oday it is black letter law that computerized data is discoverable if relevant." Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 1995 WL , 1995 U.S. Dist. LEXIS 16355, at *1 (S.D.N.Y. Nov. 3, 1995).

22 Discoverability Rule 26(b)(2)(ii) – whether the “burden or expense of the proposed discovery outweighs its likely benefit.” Rule 26(b)(2)(ii) – whether the “burden or expense of the proposed discovery outweighs its likely benefit.” Amended Rule: Identify electronically stored information not “reasonably accessible because of undue burden or expense” Amended Rule: Identify electronically stored information not “reasonably accessible because of undue burden or expense”

23 Discoverability “(1) The extent to which the request is specifically tailored to discover relevant information; (2) The availability of such information from other sources; (3) The total cost of production, compared to the amount in controversy; (4) The total cost of production, compared to the resources available to each party; (4) The total cost of production, compared to the resources available to each party; (5) The relative ability of each party to control costs and its incentive to do so; (6) The importance of the issues at stake in the litigation; and (7) The relative benefits to the parties of obtaining the information." Zubulake v. UBS Warburg, 217 F.R.D. 309, 320 (S.D.N.Y. 2003).

24 Discoverability Trolling for impeachment evidence in home computer denied. Hedenburg v. Aramark Am. Food Servs. (W.D. Wash. Jan 17, 2007) Trolling for impeachment evidence in home computer denied. Hedenburg v. Aramark Am. Food Servs. (W.D. Wash. Jan 17, 2007) Fishing Expedition seeking access to hard drives denied. Balfour Beatty Rail, Inc. v. Vaccarello (M.D. Fla. Jan. 18, 2007) Fishing Expedition seeking access to hard drives denied. Balfour Beatty Rail, Inc. v. Vaccarello (M.D. Fla. Jan. 18, 2007) Undue Burden requires narrowing of discovery requests. Ameriwood Industries, Inc. v. Liberman (E.D. Mo. Feb. 13, 2007) Undue Burden requires narrowing of discovery requests. Ameriwood Industries, Inc. v. Liberman (E.D. Mo. Feb. 13, 2007)

25 Discoverability Cost Shifting Plaintiff ordered to convert a simulation program and data on a nine-track magnetic tape if the defendant agreed to "pay all the reasonable and necessary costs that may be associated with the manufacture of the computer-readable tape." In re Air Crash Disaster at Detroit Metro. Airport on Aug. 16, 1987, 130 F.R.D. 634, 636 (E.D. Mich. 1989). Plaintiff ordered to convert a simulation program and data on a nine-track magnetic tape if the defendant agreed to "pay all the reasonable and necessary costs that may be associated with the manufacture of the computer-readable tape." In re Air Crash Disaster at Detroit Metro. Airport on Aug. 16, 1987, 130 F.R.D. 634, 636 (E.D. Mich. 1989).

26 Discoverability Cost Shifting Accessible Data must be produced at cost of producing party. Peskoff v. Faber (D.D.C. 2007). Accessible Data must be produced at cost of producing party. Peskoff v. Faber (D.D.C. 2007). Marginal Utility Test used to deny motion to compel. Oxford House, Inc. v. City of Topeka (D. Kan. Apr. 27, 2007). Marginal Utility Test used to deny motion to compel. Oxford House, Inc. v. City of Topeka (D. Kan. Apr. 27, 2007). Conclusory statements about costs insufficient. Best Buy Stores, L.P. v. Developers Diversified Realty Corp. (D. Minn. Feb. 1, 2007) Conclusory statements about costs insufficient. Best Buy Stores, L.P. v. Developers Diversified Realty Corp. (D. Minn. Feb. 1, 2007) Production of back-ups ordered; cost-shifting determined later. In re Veeco Instruments, Inc. Sec. Litig. (S.D.N.Y. Apr. 2, 2007). Production of back-ups ordered; cost-shifting determined later. In re Veeco Instruments, Inc. Sec. Litig. (S.D.N.Y. Apr. 2, 2007).

27 Discoverability Cost Shifting Comments to 26(b)(2)(B) Sampling, inspection or depositions appropriate to test accessibility, and nature and volume of electronically stored information Sampling, inspection or depositions appropriate to test accessibility, and nature and volume of electronically stored information Developed sampling protocol. Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co. (S.D.N.Y. Dec. 22, 2006) Developed sampling protocol. Zurich Am. Ins. Co. v. Ace Am. Reinsurance Co. (S.D.N.Y. Dec. 22, 2006) Developed imaging, recovery and disclosure protocols. Cenveo Corp. v. Slater (E.D. Pa. Jan. 31, 2007) Developed imaging, recovery and disclosure protocols. Cenveo Corp. v. Slater (E.D. Pa. Jan. 31, 2007)

28

29 Discoverability Rule 16 Conference Identify Sources Technical Meet and Confer Experts Complexity Internal Resources

30 Discoverability Locating Electronic Documents I.T. – 30(b)(6) I.T. – 30(b)(6) Interrogatories Interrogatories On-Site Inspections On-Site Inspections

31 Discoverability Locating Electronic Documents Numbers, Types and Locations Numbers, Types and Locations Operating Systems/Application SW Operating Systems/Application SW File Naming/Saving Conventions File Naming/Saving Conventions Disk /Tape Labeling Conventions Disk /Tape Labeling Conventions

32 Discoverability Locating Electronic Documents Retention Policies/Procedures Retention Policies/Procedures Employee Policies/Procedures Employee Policies/Procedures Identity of Key Employees Identity of Key Employees Backup/Archiving Schedule/Procedures Backup/Archiving Schedule/Procedures

33 Discoverability Document Requests (Local and Exchange) (Local and Exchange) Document Files – Directory Document Files – Directory Internet Browsing Records (E.g., Cookies) Internet Browsing Records (E.g., Cookies) Proprietary Files Proprietary Files Site Inspection Site Inspection

34 Discoverability Interrogatories Persons Assisted in Collection Persons Assisted in Collection Steps Taken Steps Taken System Architecture System Architecture Knowledgeable Persons Knowledgeable Persons

35 Discoverability Testifying Experts Computer data and calculations discoverable. City of Cleveland v. Cleveland Electronic Illuminating Co. (N.D. Ohio 1980). Computer data and calculations discoverable. City of Cleveland v. Cleveland Electronic Illuminating Co. (N.D. Ohio 1980). Final and draft computerized accident simulations discoverable. Bartley v. Isuzu Motors Ltd. (D. Colo. 1993). Final and draft computerized accident simulations discoverable. Bartley v. Isuzu Motors Ltd. (D. Colo. 1993). Expert ordered to preserve evidence. In re Zyprexa Prods. Liab. Litig. (E.D.N.Y. Dec. 28, 2006) Expert ordered to preserve evidence. In re Zyprexa Prods. Liab. Litig. (E.D.N.Y. Dec. 28, 2006) No sanctions for failing to retain drafts or preserve . Univ. of Pittsburg v. Townsend (E.D. Tenn. Mar. 30, 2007). No sanctions for failing to retain drafts or preserve . Univ. of Pittsburg v. Townsend (E.D. Tenn. Mar. 30, 2007).

36 Discoverability Non-Testifying Experts Non-testifying expert computer program discoverable when necessary to depose testifying expert. Pearl Brewing Co. v. Jos. Schlitz Brewing Co. (S.D. Texas 1976). Non-testifying expert computer program discoverable when necessary to depose testifying expert. Pearl Brewing Co. v. Jos. Schlitz Brewing Co. (S.D. Texas 1976). Methods used by Non-testifying expert used to generate tables discoverable. Derrickson v. Circuit City Stores (D. Md. 1999). Methods used by Non-testifying expert used to generate tables discoverable. Derrickson v. Circuit City Stores (D. Md. 1999).

37 Discoverability Privilege Rule 26(b)(5)(B) Rule 26(b)(5)(B) safe harbor for inadvertent production safe harbor for inadvertent production Evid. Rule 502 Evid. Rule 502 Safe harbor if Safe harbor if Inadvertent production Inadvertent production Reasonable precautions to prevent disclosure Reasonable precautions to prevent disclosure Production in government investigation not general waiver Production in government investigation not general waiver

38 Discoverability Privilege Solution One: “Claw back” agreement Solution One: “Claw back” agreement Parties agree inadvertent production does not constitute waiver Parties agree inadvertent production does not constitute waiver Protocol in place for identification and return of privileged information Protocol in place for identification and return of privileged information Solution Two: “Quick peek” agreement Solution Two: “Quick peek” agreement Requesting party given access to unreviewed documents to designate responsive material Requesting party given access to unreviewed documents to designate responsive material Privilege claims made as to designated material Privilege claims made as to designated material

39 Discoverability Privilege – Inadvertent Waiver Reasonableness of Precautions Reasonableness of Precautions Amount of Time to Correct Error Amount of Time to Correct Error Scope of Production Scope of Production Extent of Inadvertent Disclosure Extent of Inadvertent Disclosure Overriding Interest of Fairness and Justice Overriding Interest of Fairness and Justice

40 Discoverability Privilege Waiver found with inadvertent production – attached to proposed counterclaim. Marrero Hernandez v. Esso Standard Oil Co. (D. Puerto Rico July 11, 2006). Waiver found with inadvertent production – attached to proposed counterclaim. Marrero Hernandez v. Esso Standard Oil Co. (D. Puerto Rico July 11, 2006). No selective waiver when producing documents to federal agency during investigation. In re Qwest Communications Int’l, Inc. (10 th Cir. June 19, 2006). No selective waiver when producing documents to federal agency during investigation. In re Qwest Communications Int’l, Inc. (10 th Cir. June 19, 2006). Privilege not waived with inadvertent production of spreadsheet. Williams v. Sprint/United Mgmt. Co. (D. Kan. July 1, 2006). Privilege not waived with inadvertent production of spreadsheet. Williams v. Sprint/United Mgmt. Co. (D. Kan. July 1, 2006). Conflict where ex-employee used company computer Conflict where ex-employee used company computer Kaufman v. SunGard Inv. Sys. (E.D.N.Y. May 15, 2006) – waiver. Kaufman v. SunGard Inv. Sys. (E.D.N.Y. May 15, 2006) – waiver. Curto v. Med. World Communications, Inc. (E.D.N.Y. May 15, 2006) – no waiver. Curto v. Med. World Communications, Inc. (E.D.N.Y. May 15, 2006) – no waiver.

41 Old Rules-New Tricks Discoverability Discoverability Spoliation Spoliation Admissibility Admissibility

42

43

44

45 Old Rules-New Tricks Spoliation All parties “are obligated to take appropriate measures to preserve documents and information... reasonably calculated to lead to the discovery of admissible evidence and likely to be requested during discovery.” All parties “are obligated to take appropriate measures to preserve documents and information... reasonably calculated to lead to the discovery of admissible evidence and likely to be requested during discovery.” Amended Rule 37(f) – routine and good faith operation of system not sanctionable. Amended Rule 37(f) – routine and good faith operation of system not sanctionable.

46 Old Rules-New Tricks Spoliation Preserve backup tapes for key employees or others with relevant information Preserve backup tapes for key employees or others with relevant information Retain both current and archived backup tapes identified as potentially relevant Retain both current and archived backup tapes identified as potentially relevant Catalog documents created after the duty attaches in a separate file for easy collection and review Catalog documents created after the duty attaches in a separate file for easy collection and review Take mirror images of computer hard drives. Take mirror images of computer hard drives. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003)

47 Spoliation Retention Policy “[D]ocument retention policies... do not trump the Federal Rules of Civil Procedure or requests by opposing counsel.... [E]xecution of a document retention policy that is at odds with the rules governing the conduct of litigation does not protect [the party] from a finding of intentional destruction.“ Trigon Ins. Co. v. United States, 204 F.R.D. 277, 289 (E.D. Va. 2001). “[D]ocument retention policies... do not trump the Federal Rules of Civil Procedure or requests by opposing counsel.... [E]xecution of a document retention policy that is at odds with the rules governing the conduct of litigation does not protect [the party] from a finding of intentional destruction.“ Trigon Ins. Co. v. United States, 204 F.R.D. 277, 289 (E.D. Va. 2001).

48 Obligation Arises Prior Litigation Prior Litigation Notice of Complaint Notice of Complaint Service of Discovery Service of Discovery Court Orders Court Orders Statutes/Rules of Procedure Statutes/Rules of Procedure Preservation Letter Preservation Letter

49 Preservation Letter Litigation Hold Notices Protected from Discovery Litigation Hold Notices Protected from Discovery Capitano v. Ford Motor Co., (N.Y. Sup. Ct. 2007) Capitano v. Ford Motor Co., (N.Y. Sup. Ct. 2007) Gibson v. Ford Motor Co. (N.D. Ga. Jan. 4, 2007). Gibson v. Ford Motor Co. (N.D. Ga. Jan. 4, 2007). Describe Subject Describe Subject Describe Relevant Data Describe Relevant Data Generic Listing of Locations Generic Listing of Locations Retention Policy Retention Policy System Architecture System Architecture

50 Suspend routine document destruction or alteration required under document retention policy. Suspend routine document destruction or alteration required under document retention policy. Involve counsel in determining both issues relevant to the cause and that may lead to relevant discovery. Involve counsel in determining both issues relevant to the cause and that may lead to relevant discovery. Send an order, with periodic reminders thereafter, to the appropriate employees, including those in information technology, to preserve all documentation relevant to the litigation. The order should include the issues involved in the litigation and remind the employees that the data retention policy no longer applies to these issues. Send an order, with periodic reminders thereafter, to the appropriate employees, including those in information technology, to preserve all documentation relevant to the litigation. The order should include the issues involved in the litigation and remind the employees that the data retention policy no longer applies to these issues. Spoliation Suggested Actions

51 Obtain copies of all hard copy documents. Obtain copies of all hard copy documents. Develop working knowledge of the technology systems to determine storage media, locations and length of storage. This knowledge should also include whether the system overwrites deleted information. Depending upon the complexity of the system, this step may also require consulting a computer forensics expert to determine an effective strategy for preserving and maintaining electronic data. Develop working knowledge of the technology systems to determine storage media, locations and length of storage. This knowledge should also include whether the system overwrites deleted information. Depending upon the complexity of the system, this step may also require consulting a computer forensics expert to determine an effective strategy for preserving and maintaining electronic data. Designate an employee to be responsible for the collection and protection of relevant documents and information. Designate an employee to be responsible for the collection and protection of relevant documents and information.

52 Spoliation Standard the party with control over the evidence had a duty to preserve it at the time of destruction; the party with control over the evidence had a duty to preserve it at the time of destruction; the records were destroyed with a "culpable state of mind"; and the records were destroyed with a "culpable state of mind"; and the destroyed evidence was "relevant" to the party's claim or defense and a reasonable trier of fact might find that it would support that claim or defense. the destroyed evidence was "relevant" to the party's claim or defense and a reasonable trier of fact might find that it would support that claim or defense.

53 Spoliation Consequences Dismiss Complaint – Plasse v. Tyco Elecs. Corp. (D. Mass. Sept. 7, 2006) Dismiss Complaint – Plasse v. Tyco Elecs. Corp. (D. Mass. Sept. 7, 2006) Default Judgment - QZO, Inc. v. Moyer (S.C. Ct. App. 2004). Default Judgment - QZO, Inc. v. Moyer (S.C. Ct. App. 2004). Witness Excluded - United States v. Phillip Morris USA Inc. f/k/a Phillip Morris Inc. (D.D.C. July 21, 2004). Witness Excluded - United States v. Phillip Morris USA Inc. f/k/a Phillip Morris Inc. (D.D.C. July 21, 2004). Dismissed Counterclaims - Long Island Diagnostic Imaging v. Stony Brook Diagnostic Assocs. (N.Y. App. Div. 2001). Dismissed Counterclaims - Long Island Diagnostic Imaging v. Stony Brook Diagnostic Assocs. (N.Y. App. Div. 2001). Costs of Discovery Special Master – Padgett v. City of Monte Sereno (N.D. Cal. Mar. 20, 2007). Costs of Discovery Special Master – Padgett v. City of Monte Sereno (N.D. Cal. Mar. 20, 2007).

54 Spoliation Consequences Amended Rule 37(f) – Safe Harbor Amended Rule 37(f) – Safe Harbor No sanctions for lost data where routine, good faith operation of electronic information system No sanctions for lost data where routine, good faith operation of electronic information system Absent exceptional circumstances Absent exceptional circumstances No Spoliation sanctions where no “desire to suppress the truth” and no prejudice shown. Greyhound Lines, Inc. v. Wade (8 th Cir. Apr. 24, 2007). No Spoliation sanctions where no “desire to suppress the truth” and no prejudice shown. Greyhound Lines, Inc. v. Wade (8 th Cir. Apr. 24, 2007).

55 Old Rules-New Tricks Discoverability Discoverability Spoliation Spoliation Admissibility Admissibility

56

57 Admissibility What to Record Lorraine v. Markel Am. Ins. Co. (D. Md. May 4, 2007) "Date, time, and place of collection or receipt. "Date, time, and place of collection or receipt. The name of the individual who collected or received the evidence. The name of the individual who collected or received the evidence. A description of what was obtained, including media-specific information. A description of what was obtained, including media-specific information. Media type, standard, and manufacturer. Media type, standard, and manufacturer.

58 Admissibility What to Record All movement of evidence (evidence transfer) and the purpose of the transfer. All movement of evidence (evidence transfer) and the purpose of the transfer. Physical (visual) inspection of evidence. Physical (visual) inspection of evidence. Procedures used in collecting and analyzing the data. Procedures used in collecting and analyzing the data. Date and time of check-in and check-out of media from secure storage." Date and time of check-in and check-out of media from secure storage."

59 Admissibility Authentication Authenticity requires a showing that the evidence "is what a proponent claims." Fed. R. Evid. 901(a); Ohio R. Evid. 901(a). Authenticity may be established through witness testimony, distinctive characteristics of the evidence and the like. Fed. R. Evid. 901(b); Ohio R. Evid. 901(b). Authenticity requires a showing that the evidence "is what a proponent claims." Fed. R. Evid. 901(a); Ohio R. Evid. 901(a). Authenticity may be established through witness testimony, distinctive characteristics of the evidence and the like. Fed. R. Evid. 901(b); Ohio R. Evid. 901(b).

60 Admissibility Authentication Witness' testimony of personally receiving and printing s from the defendant was sufficient to prove authenticity. Kearly v. Mississippi, 843 So. 2d 66 (Miss.Ct. App. 2002). Witness' testimony of personally receiving and printing s from the defendant was sufficient to prove authenticity. Kearly v. Mississippi, 843 So. 2d 66 (Miss.Ct. App. 2002). A witness authenticated documents attached to a declaration when the "pages [were] printed from the Internet... by [him] or under his direction.“ Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002). A witness authenticated documents attached to a declaration when the "pages [were] printed from the Internet... by [him] or under his direction.“ Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146 (C.D. Cal. 2002).

61 Old Rules-New Tricks Admissibility "although the legal requirements for admissibility of downloaded documents may not be well established, a party's statement that 'I downloaded these pages from the internet' is probably not sufficient to authenticate a downloaded document." State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2003-Ohio-6560 (Ohio Ct. App. Dec. 9, 2003) at ¶ 70 n.1. "although the legal requirements for admissibility of downloaded documents may not be well established, a party's statement that 'I downloaded these pages from the internet' is probably not sufficient to authenticate a downloaded document." State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2003-Ohio-6560 (Ohio Ct. App. Dec. 9, 2003) at ¶ 70 n.1.

62 Old Rules-New Tricks Admissibility Web address and path of the document; Web address and path of the document; Date and title of the document; Date and title of the document; Date the document was downloaded or accessed; and Date the document was downloaded or accessed; and Sworn statement to the court that the copy had not been altered from that found on the website. Sworn statement to the court that the copy had not been altered from that found on the website. State ex rel. Leslie v. Ohio Hous. Fin. Agency, 2003-Ohio-6560 (Ohio Ct. App. Dec. 9, 2003)

63 Old Rules-New Tricks Admissibility The Court holds no illusions that hackers can adulterate the content of any Web- site from any location at any time." (emphasis in original). St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999). The Court holds no illusions that hackers can adulterate the content of any Web- site from any location at any time." (emphasis in original). St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999).

64 Old Rules-New Tricks Admissibility "[A]ny evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception." St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999). "[A]ny evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception." St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999).

65 Old Rules-New Tricks Admissibility Fed. R. Civ. P. 803(6) permits the admission of computer business records if a party introduces a sufficient foundation. Hardison v. Balboa Ins. Co., 4 Fed. Appx. 663 (10th Cir. 2001). Fed. R. Civ. P. 803(6) permits the admission of computer business records if a party introduces a sufficient foundation. Hardison v. Balboa Ins. Co., 4 Fed. Appx. 663 (10th Cir. 2001). trial court should have admitted an from the plaintiff to the defendant that was written within the scope of the author's employment as a party admission. Sea-Land Servs., Inc. v. Lozen Int'l, LLC, 285 F.3d 808 (9th Cir. 2002). trial court should have admitted an from the plaintiff to the defendant that was written within the scope of the author's employment as a party admission. Sea-Land Servs., Inc. v. Lozen Int'l, LLC, 285 F.3d 808 (9th Cir. 2002).

66 Old Rules-New Tricks Admissibility s satisfied the requirements for a present sense impression because they explained and the event in question shortly after it occurred. United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997). s satisfied the requirements for a present sense impression because they explained and the event in question shortly after it occurred. United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997). s offered by the defendant federal agency were public records, which "are generally admissible." Lester v. Natsios, 290 F. Supp. 2d 11, 26 (D.D.C. 2003). s offered by the defendant federal agency were public records, which "are generally admissible." Lester v. Natsios, 290 F. Supp. 2d 11, 26 (D.D.C. 2003).

67


Download ppt "E-Discovery and Forensics: Effectively Preserving Evidence Presented by: Ronald I. Raether, Jr. Faruki Ireland & Cox P.L.L. June 19, 2007."

Similar presentations


Ads by Google