1. Judges Panel – Wisdom from the Bench
Federal Litigation Section - Annual FBA Federal Litigation Conference
Washington, D.C.
October 27, 2015

2. Introduction of Panelists
Featuring:
The Honorable Gerald E. Rosen, Chief U.S. District Judge, Eastern District of Michigan
The Honorable Suzanne H. Segal, Chief U. S. Magistrate Judge, Central District of California
The Honorable Lisa Margaret Smith, U. S. Magistrate Judge, Southern District of New York
Moderator:
Robert E. Kohn, Kohn Law Group, Inc.

3. Discussion re Obtaining Electronic Evidence
Discovery Requests (Civil Litigation Only)
Self-production of Materials
Subpoenas in Civil Cases – Subject to Objections

4. Discussion re Obtaining Electronic Evidence
Harvesting Off of the Internet
The Wayback Machine
Library of Congress

5. Q and A re Obtaining Electronic Evidence
Questions re Obtaining Electronic Evidence?

6. Competing Standards for Authenticating Social Media Evidence
Maryland Standard
Texas Standard
Delaware Adopts Texas Standard
Fourth Circuit

7. Competing Standards for Authenticating Social Media Evidence
Use of Properly Preserved Metadata to Bolster Authenticity
Chain of Custody
Use of Internal Circumstances to Authenticate Electronic Evidence
Alternative Authentication Methods

8. POTENTIAL OBJECTIONS Authenticity Hearsay The Best Evidence Rule
FRE 403

9. Discussions re Trial-Like Demonstrations Seeking to Admit/Preclude Electronic Evidence
Civil Case – string – patent infringement case
Q and A re the string demonstration

10. ______________________________________________________________
From: Sent: Thursday, March 11, :40 AM To: Subject: New Developments   
Robert: I have spoken with Vladimir and he has indicated that the ‘888 patent was issued to MicroTech last week, so we are going to need to decide whether to “cut and run,” or “stay the course” as to our polymeric hyperbolic infusion process.

11. ______________________________________________________________
From: Sent: Thursday, March 11, :42 AM To: Subject: New Developments   
Thanks Charlie – in the immortal words of Ronald Reagan – “Stay the Course” and “Damn the Torpedoes.”
From: Johnson, Charles Sent: Thursday, March 11, :40 AM To: Robertson, Robert Subject: New Developments
Robert: I have spoken with Vladimir and he has indicated that the ‘888 patent was issued to MicroTech last week, so we are going to need to decide whether to “cut and run,” or “stay the course” as to our polymeric hyperbolic infusion process.

12. ________________________________________________________
From: Sent: Thursday, March 11, :40 AM To: Subject: New Developments
Thanks Vladamir, I have spoken to Robert and he stated as follows: “In the immortal words of Ronald – ‘Stay the Course’ and ‘Damn the Torpedoes.’”
 ________________________________________________________
From: Sent: Thursday, March 11, :40 AM To: Subject: New Developments
Charles: The ‘888 patent was issued to MicroTech last week, so we are going to need to decide whether to “cut and run,” or “stay the course” as to our polymeric hyperbolic infusion process.

13. ABCTech Co. – The Leader in Hyperbolic Infusion
Robert Robertson Today was a big day for the polymeric hyperbolic infusion process – Stay the Course, and Damn the Torpedoes.
March 11, 6:30 pm
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14. Discussions re the Trial-Like Demonstration Seeking to Admit/Preclude Electronic Evidence
Civil Case – ZJay Breach of Contract Case
Q and A re ZJay Case

15. Z-Jay
12/12/13 9:48pm

16. Text
Tom
Hey concert is supposed to start anyone # noshow
12/12/13 9:02 pm

17. John
@theRealTomJones sitting in club across right now!! #bigpimpn
12/12/13

18. Additional Discussion re Electronic Evidence (As Time Permits)
Use of Requests for Admissions for Authenticity/Admissibility
Beware of arbitrary limits on RFAs
Preparation of witness for deposition or trial re potential social media evidence
Use of social media information for jury selection, etc. (Facebook pages, Tweets, etc.) (ABA Formal Opinion No. 446, April )
Should the slides, etc. go back to the jury and be a part of the record on appeal – why or why not? See Verizon, Directories Corp. Services v. Yellow Book USA, Inc., 331 F.Supp. 2d 136 (EDNY 2004) (Weinstein, J.)

19. Questions?