How to Get Electronically Stored Information and Use it Effectively

The ESI Files:
How to Get Electronically
Stored Information
and Use it Effectively
Illinois Legal Aid Advocates Conference
November 13, 2008
Martin T. Tully
Christina M. Morrison
Partner & National E-Discovery Practice Chair
Katten Muchin Rosenman LLP
Litigation Associate
Katten Muchin Rosenman LLP
0
Much Ado About Something
•
2006 federal rule amendments established a practical and
philosophical framework for the conduct of electronic discovery.
•
Requires earlier and more extensive involvement by counsel and
clients to timely and successfully meet discovery obligations.
•
State courts have adopted the FRCP amendments or issued
slightly revised interpretations as guidelines to their judges.
•
Mishandling e-discovery matters can have serious -- even
disastrous – consequences.
– 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
1
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(e) 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.
2
What – Me worry?
3
Basic Familiarity With ESI Practices &
Pitfalls Is Essential
•
“[ESI] is commonplace in our personal lives and in the operation of
businesses, public entities, and private organizations.” Managing
Discovery of Electronic Information: A Pocket Guide for Judges, Federal
Judicial Center (2007).
•
ESI is everywhere, takes many forms, and is growing fast.
– ESI = “any information created, stored, or best utilized with
computer technology of any type”
•
Know how to properly handle your own client’s ESI.
•
Know how to get your opponent’s ESI and use it effectively.
•
Proper planning and preparation will equip you to more efficiently
navigate the rules and can give you the upper hand in pursuing ediscovery.
4
E-Discovery in Illinois State Courts
•
S. Ct. 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 [S. Ct.
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.”
5
Key Steps in the E-Discovery Process
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ESI Identification
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Determine What’s There (Requesting Party)
•
Ask your client to describe what relevant ESI should be there
•
Who are the most likely custodians?
•
What relevant systems, repositories and other sources of ESI
are there for the applicable time period?
•
What types of ESI reside there? Emails and other
communications, documents drafted or exchanged, data,
programs, applications, etc.
•
Where does it reside? ESI lives in many places – PDAs, cell
phones, home computers, external hard drives, flash drives,
etc.
•
Are any of these systems or repositories subject to auto-delete
functions, overwriting, recycling, archiving, etc.?
8
Determine What’s There (Requesting Party)
•
Take advantage of required initial disclosures and conferences.
– FRCP 16(b) -- requires disclosure of a party’s IT and RM
architecture and environment at the very beginning of the
lawsuit
– FRCP 26(a)(1)(B) requires each party to disclose and
produce ESI it intends to use to support its claims or
defenses
– FRCP 26(f) – ESI disclosures and discovery to be
discussed at initial planning conference
•
Perfunctory discussions are insufficient. Parties must be
prepared.
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Determine What’s There (Requesting Party)
•
Illinois circuit judges can pursue case management
conferences under S. Ct. Rule 218.
•
ABA Standard on Civil Discovery 31 suggests that a
discovery conference be held early in the case when
electronic discovery is involved.
•
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.
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If You Don’t See It . . . Ask For It
•
Review initial disclosures. Are they complete?
– Compare production and expectations. Look for gaps,
missing data, unusable data, etc.
•
If not sure, include specific requests for production.
– Be comprehensive and yet specific
– Cover known and perceived gaps
•
Ask for live, deleted, wiped, unallocated and slack space
data, etc., if relevant.
•
Interrogatories or depositions of IT personnel or records
custodians can be instructive.
11
Request Within Reasonable Parameters
•
Even if disclosures appear complete, serve RFP under FRCP 34 or
S. Ct. Rule 214 for ESI needed to establish your claims or defenses
and negate opponent’s claims or defenses.
•
State clearly whether ESI is being sought.
•
Be thorough and yet specific:
– Who? – list of people
– What? – carefully define types of ESI
– Where? – specify all hardware and devices where ESI may be
found
– When? – provide relevant date range
– How? – specify form of production
12
Limits on Discovery of ESI
•
Distinction between ESI that is accessible and not
reasonably accessible because of undue burden or cost.
FRCP 26(b)(2)(B).
•
“Accessible” ESI follows standard discovery rules, with the
responding party typically bearing costs of production,
whereas ESI identified as and shown to be “not reasonably
accessible” due to “undue burden or cost” will typically not
be required to be searched or produced, absent a showing
of “good cause” and possible cost-shifting.
•
“Cost shifting does not even become a possibility unless
there is first a showing of inaccessibility.” Peskoff v. Faber,
240 F.R.D. 26, 31 (D.D.C. 2007).
13
Limits on Discovery of ESI
•
“It is not possible to define in a rule the different types
technological features that may affect the burdens and costs
of accessing electronically stored information.” Advisory
Committee Notes to FRCP 26(b)(2)(B).
•
As “technological features” change over time, what is “not
reasonably accessible” today may not be so tomorrow.
•
Cost of restoring and searching backup tapes does not
necessarily render them “not reasonably accessible because
of undue burden or cost.” Semsroth v. City of Wichita, 239
F.R.D. 630 (D. Kan. November 15, 2006).
14
What is “Not Reasonably Accessible”?
•
Data contained in 34,112 requested claim files held “not reasonably
accessible” because of cost and hours needed to retrieve it.
However, “good cause” existed for requiring production of narrowed
request for 3,000 files that the court found to be integral to the
litigation. W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D.
38 (D. Mass. Feb. 6, 2007).
•
Court declined to order production of inaccessible data under Rule
26(b)(2)(B) for “good cause” because request lacked sufficient
specificity. Ameriwood Industries, Inc. v. Liberman, et al., 2007 U.S.
Dist. LEXIS 10791 (E.D. Mo. Feb. 13, 2007).
•
Database prepared for other litigation found “not reasonably
accessible” because it had not been archived and data could only
be restored from original sources such as back up tapes. Best Buy
Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL
4230806 (D. Minn. Nov. 29, 2007).
15
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. Parkdale America, LLC v. Travelers
Cas. and Sur. Co. of America, Inc., 2007 WL 4165247
(W.D.N.C. Nov. 19, 2007).
•
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, 2007 WL
4277564 (D.Colo. Dec. 3, 2007).
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Direct Access To Opponent’s Hard Drive or
Electronic Information System
•
FRCP 34(a) does not “create a routine right of direct access to a party’s
electronic information system, although such access might be justified in
some circumstances.” Advisory Committee Notes, FRCP 34(a).
•
Recent cases have generally disallowed inspection of a “mirror image” of an
adversary’s hard drive unless the computer was used in the course of the
alleged wrongdoing or discrepancies in document production suggested
improper deletion of documents.
•
Diepenhorst v. City of Battle Creek, 2006 WL 1851243 (W.D. Mich. June
30, 2006) (In rejecting motion to compel making of “mirror image” of
contents of plaintiff’s hard drive, court explained it was "loathe to sanction
intrusive examination of an opponent's computer as a matter of course, or
on the mere suspicion that the opponent may be withholding discovery
information.")
•
Scotts Co. v. Liberty Mut. Ins. Co., 2007 WL 1723509 (S.D. Ohio June 12,
2007) (Declining to compel forensic search of computer systems, network
servers and databases based on “mere suspicion … that defendant may be
withholding discoverable information”).
17
Obtaining ESI From Third Parties
•
FRCP 45 amended to recognize that ESI, as broadly defined
in FRCP 34(a), can also be sought by subpoena.
•
S. Ct. Rule 204 allows for issuance of subpoenas upon third
parties that may “command the person to whom it is directed
to produce documents or tangible things which constitute or
contain evidence relating to any of the matters within the
scope of the examination permitted under these rules.”
•
Per S. Ct. Rule 201(b)(1), “documents” include
“communications and all retrievable information in computer
storage.”
•
Pre-suit discovery under S. Ct. Rule 224 can be used to
learn identity of e-mail account holder or on-line poster.
18
Preservation & Collection
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Obligation to Preserve ESI (Federal)
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“A party is required to keep relevant evidence over which it has control
and reasonably knew or could foresee was material to the litigation.”
Old Banc One Shareholders Sec. Litigation, 2005 WL 3372783 (N.D.
Ill. Dec. 8, 2005).
•
“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, 497 F.Supp.2d 627 (E.D. Pa. 2007).
•
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).
20
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 (Ill. 2004); Boyd v. Travelers Ins. Co., 166 Ill.2d 188 (Ill. 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 the Duty Arises: 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.
•
Scope of Duty: 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. Andersen v. Mack
trucks, inc. 341 Ill. App.3d 212 (2d Dist. 2003).
21
Obligation to Preserve ESI (Illinois)
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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); Cangemi v. Advocate
South Suburban Hospital, 364 Ill. App.3d 446 (1st Dist. 2006).
•
This cause of action requires the existence of a duty, a breach of duty,
causation, and damages. Dardeen, 213 Ill.2d at 336.
•
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.
22
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.
– Consolidated Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335 (M.D.La
2006). Propounding of demand letter is the point in time when litigation
should have become “reasonably anticipated.”
– Stallings v. Bil-Jax, Inc., 243 F.R.D. 248, (E.D.Va. 2007). Defendant
was 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. Although letter could have been
more specific, it provided some notice to defendant that plaintiff might
bring a lawsuit against it.
– Broccoli v. Echostar Communications, 229 F.R.D. 506, 510 (D. Md.
2005). Court held that duty to preserve was triggered by conversations
with a supervisor one year prior to filing of EEOC complaint.
•
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., 244 F.R.D. 614 (D.Colo March 2, 2007).
23
Preservation Notices (Requesting Party)
•
Why bother to send a preservation notice?
– Other courts’ opinions 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
24
Litigation Hold Notices (Responding Party)
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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
•
Follow-up and affirmations typically required.
•
Are legal hold notices discoverable?
25
FRCP 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, 2007 U.S. Dist. LEXIS
51084 (D. Conn. Jul. 16, 2007).
– Where defendant used a wiping tool before handing computers
over to bankruptcy trustee, Rule 37(e) did not apply. United
States v. Krause (In re Krause), 2007 Bankr. LEXIS 1937 (Bankr. D.
Kan. June 4, 2007).
26
Illinois Civil or Evidentiary Sanctions
•
S. Ct. 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.
•
Whether to impose a particular sanction is within trial court’s
discretion.
•
Sanctions imposed in Illinois may include:
– Dismissal with prejudice or default judgment
– Exclusion of evidence
– Adverse inference instruction to the jury
27
Illinois Civil or Evidentiary Sanctions
•
Defendant’s deletion of approximately 12,000 files from his
computer within days after being sued for misappropriation of trade
secrets gave rise to inference that defendant had destroyed
evidence of misappropriation and presented a “fair question” on the
likely success of plaintiff’s claim. Liebert Corp. v. Mazur, 827
N.E.2d 909 (1st Dist. 2005).
•
Conclusive adverse fact findings on certain issues where
defendant, who claimed that computer repair shop told him “the
‘mother board’ and ‘hard drive’ were shot, and the computer was
not worth fixing,” threw away computer in construction site
dumpster within days after receiving notice of lawsuit. APC
Filtration, Inc. v. Becker, 2007 WL 3046233 (N.D. Ill. October 12,
2007).
28
ESI Possessed 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."
– 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 thumb-drive and non-party employee's home laptop
computer).
29
ESI Possessed By Third Parties
•
Potential evidence must be in a party's "possession, custody, or
control" for any preservation duty to attach.
– 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").
30
Production
31
Form of Production (Federal Rules)
•
FRCP 34(a) allows 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.”
– Cannot produce ESI in a form less useful or searchable
than the form in which it is normally maintained.
– Failure to produce e-discovery in “any manageable
searchable form” found to be sanctionable. In re Seroquel
Prods. Liability Litigation, 2007 WL 2412946 (M.D. Fla. Aug. 21,
2007).
•
Responding party need not produce in more than one form.
32
Form of Production (Illinois Rules)
•
S. Ct. 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.”
33
Production Of “Metadata”
•
“Metadata” = data about data
•
Embedded data such as draft language, editorial comments
and deleted matter retained in an electronic file that are not
necessarily apparent to the reader and other non-visible
information describing the history, tracking or management
of an electronic file are often referred to as “metadata.”
•
Neither the Amended FRCP nor the Advisory Committee
Comments directly address the extent to which metadata
would be required to be produced in a particular case.
34
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
35
Other Production Issues
•
“Claw back” and “quick-peek” agreements, when
memorialized in a court order, can allow parties to produce
relevant documents before privilege review is conducted and
assert claims of privilege afterwards.
•
But some courts had held that production of privileged
materials to an opposing party under such agreements
constitutes a waiver of the privilege as to third parties.
•
New FRE 502 intended to provide uniform and less onerous
standards for determining whether a waiver has occurred, as
well as the scope of any such waiver, and thus reduce costs
of pre-production document and privilege review.
36
Processing/Review/Analysis
37
Processing/Review/Analysis
•
Implementing technology to increase efficiencies.
– Key word searching
– De-duplication, near-duplication
– Concept filtering, contextual word searching, “fuzzy logic”
– Audio, video and foreign language files
38
Processing/Review/Analysis
•
Effectiveness of “key word" searching has been increasingly subject to
judicial scrutiny
•
“Whether search terms or ‘keywords’ will yield the information sought is a
complicated question involving the interplay, at least, of the sciences of
computer technology, statistics and linguistics. ... Given this complexity, for
lawyers and judges to dare opine that a certain search term or terms would
be more likely to produce information than the terms that were used is truly
to go where angels fear to tread.” U.S. v. O'Keefe, 537 F. Supp. 2d 14
(D.D.C. 2008)
•
“Selection of the appropriate search and information retrieval technique
requires careful advance planning by persons qualified to design effective
search methodology. The implementation of the methodology selected
should be tested for quality assurance; and the party selecting the
methodology must be prepared to explain the rationale for the method
chosen to the court, demonstrate that it is appropriate for the task, and
show that it was properly implemented.” Victor Stanley, Inc. v. Creative
Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008).
39
Authentication & Admissibility
40
Authentication & Admissibility
•
“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, 336 B.R. 437 (9th Cir. BAP (Cal.)
2005).
– 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
41
Lorraine v. Markel American Ins. Co., 2006 U.S. Dist. LEXIS
33020 (D.Md. 2007).
•
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.”
42
Authentication & Admissibility
•
Traditional rules of evidence still govern the admissibility of ESI
such as email, IM, blog, and chat room evidence.
•
“[A]ppellant would have us create a whole new body of law just to
deal with emails or instant messages … but we see no justification
for constructing unique rules for admissibility of electronic
communications such as instant messages.; they are to be
evaluated on a case-by-case basis as any other document to
determine whether or not there has been an adequate foundational
showing of their relevance and authenticity.” In re F.P., 878 A.2d
91, 95 (P.A. Super 2005).
•
For ESI to be admissible, it must be: (i) relevant, (ii) authentic, (iii)
not hearsay or admissible under an exception to the hearsay rule,
(iv) an original or duplicate, or admissible as secondary evidence to
prove its contents, and (v) have a probative value that outweighs its
prejudicial effects.
43
ESI Authentication
•
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 S. Ct. 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.
44
ESI Authentication
•
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
•
People v. Downin, 357 Ill.App.3d 193 (3d Dist. 2005).
45
ESI Admissibility
•
E-Mail:
– 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).
•
Text Messages:
– Authentication was proper because phone number on text message
directly showed it was sent from aphone that defendant possessed and
contents included details only defendant would know. Dickens v. State,
175 Md.App. 231 (Md. Ct. Spec. App. 2007).
•
Chat Room Posts:
– State failed to lay adequate foundation for computer-generated
transcript of online chat between officer and defendant where state did
not establish accuracy of transcripts, efficacy of the ISP, or that officer
was competent operator of software used to generate transcript.
People v. Johnson, 376 Ill.App.3d 175 (1st Dist. 2007).
46
Hypothetical: The Threatening IM
From:
CubzFan4Ever83
Dude, peep this - things with my cheating g/f are FUBAR
Just wait til I see her F2F >:-II
Til death do us part, right? u FITB TTYL
Oct 17, 9:09 pm
47
Hypothetical: The Threatening IM
•
Relevancy & Identity
– Hearsay rules still apply
•
Authenticity
– Is the evidence what it purports to be?
•
Reliability
– Chain of custody
– Absence of fabrication or alteration
•
Lucidity
– Interpreting internet slang, chat room acronyms
48
What You Don’t Know Can Hurt You
•
Know when to engage technical assistance
– At the outset of the case:
• Complex technological issues
• Massive amounts of data
• Data collection or recovery issues
– Once ESI is produced:
• Review/process large amount of ESI
• Substantiate improprieties
– Before trial:
• Preserve chain of custody
• Assure proper authentication
• Explain technical issues to finder of fact
49
Conclusion
•
It pays to be prepared, and can cost you if you are not.
•
E-discovery will continue to evolve with changes in the law,
best practices, and technology.
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These factors underscore the need to remain ahead of the
curve when it comes to the new paradigm of electronic
discovery.
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Some Helpful Resources
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http://www.law.com/jsp/legaltechnology/index.jsp
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http://www.ediscoverylaw.com/
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http://www.discoveryresources.org/
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http://www.lexisnexis.com/applieddiscovery/default.asp
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The Sedona Conference:
http://www.thesedonaconference.org/content/miscFiles/publications_html?g
rp=wgs110
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Suggested Protocol for Discovery and Electronically Stored Information,
U.S. District Court for District of Maryland:
www.mdd.uscourts.gov/news/news/ESIProtocol.pdf
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Managing Discovery of Electronic Information: A Pocket Guide for Judges:
http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt.pdf/$file/eldscpkt.pdf
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Questions?
Martin T. Tully
Christina M. Morrison
Partner & National E-Discovery Practice Chair
Katten Muchin Rosenman LLP
Litigation Associate
Katten Muchin Rosenman LLP
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