Case Summary: U-Haul Int’l; Authentication of Database Summaries and the Underlying Data

Lumbermens Insurance company objected to a Trial Court’s admission of computer generated summaries of payments for loss adjustments produced by another insurance company. Each summary related to a specific individual insurance claim. Lumbermens appealed to the ninth circuit.

Lumbermens first contended that the summaries are hearsay not fitting within the business records exception (FRE 803(6)) of the FRE, and therefore should have been excluded.
The court began by explaining that FRE 803(6) allows records of regularly conducted business activity meeting the criterial laid out as follows constitute an exception to the prohibition against hearsay evidence:

A . . . report, record, or data compilation, in any form, of acts, events, condition, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the . . . report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness . . . unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The court then reiterated its previous stance that it is immaterial that business records are maintained in a computer rather than in company books. The logical extension of this principle is that evidence that has been compiled from a computer database is also admissible under the business records exception, provided it meets the criterial of FRE 803(6). The court quoted several decisions, including Weinstein’s Federal Evidence, which stated that “The important issue is whether the database, not the printout from the database, was compiled in the ordinary course of business.”

The court concluded that the summaries fit squarely within the exception provided under FRE 803(6). It noted that the trial court had concluded:

1. the underlying data was entered into the database at or near the time each payment was made;
2. the persons entering the data had knowledge of the payments that precipitated the data entry;
3. the data was kept in the course of regularly conducted business activity; and
4. Mr. Matsush, the authenticating witness, was qualified to testify to this information.

The court concluded that nothing in the record indicated that any of these findings were clearly erroneous.

Mr. Matush’s testimony that data entry for each payment occurs at the time of the payment, and that employees routinely queried the database to generate summaries. The court continued it’s description:

Matush testified that he was familiar with the record-keeping practices of the company, testified regarding the computer system used to compile and search the insurance claim records, and testified regarding the process of querying the computer system to create the summaries admitted at trial. This description of the process used to create the summaries was sufficient to authenticate the evidence, and the district court did not abuse its discretion in holding that a sufficient foundation was laid to admit the exhibits.

(Emphasis added).

Finally, the court was unconvinced by Lumbermens’ arguments that the summaries were inadmissible under FRE 1006, allowing summaries of “voluminous” writings to admitted only if the original data is accessible. The court stated that the summaries themselves are the business records, and so no additional data needed to be made available.

CA Case Summary: Miyamoto; Trustworthiness and Database Records

Miyamoto v. Department of Motor Vehicles, 176 Cal. App. 4th 1210, 1212 (Cal. App. 6th Dist. 2009)

JXN: State Court, California

Procedural Standing: Appeal by DMV from a trial court ruling granting of writ of administrative mandamus and ordering DMV to set aside its order to suspend defendant’s driver’s license after being arrested for driving under the influence of alcohol. The trial court ruled that the forensic laboratory report (Lab Report) of Miyamoto’s blood test results was inadmissible hearsay and that the Lab Report failed to meet the requirements of the public employee records exception to the hearsay rule (CA_Evid_Code_§_1280) because the DMV did not establish that the Lab Report was prepared at or near the time of the analysis of Miyamoto’s blood sample.

Facts of the Case: Defendant driver was pulled over for speeding, and arrested after “performing poorly” in a field sobriety test. The police dept. obtained blood samples from defendant, and had them analyzed for alcohol content. The analyses found that Miyamoto’s blood-alcohol content was twice the legal limit.

The Lab Report contained the following certification: “I, the undersigned certify under penalty of perjury that the above blood … analysis reported herein was performed during the regular course of my duties and is a true and correct representation of the results of my analysis. I further certify that I am a qualified … Forensic Alcohol Analyst (FAA) … employed by the Santa Clara County Crime Laboratory. The equipment used to perform the analysis was in proper working order at the time the analysis was performed and the recording of the analysis results was done at the time of the analysis. I further certify that the transfer of data for reporting purposes was performed electronically in accord with the laboratory’s policies and procedures.” The Lab Report was signed by “R. Desai, FAA.” The signature line, which included a line for the analyst to enter the “Date of review/report,” contained a handwritten date: “3/26/07.” The Lab Report contained the name of the “reviewer,” “Joyner.” A box in the middle of the report indicated that the “Date Printed” was “4/26/2007.”

Procedural History:At Miyamoto’s administrative hearing, the only contested issue was whether Miyamoto was driving with a blood-alcohol content of 0.08 percent or more. Miyamoto objected to the admission of the Lab Report as inadmissible for two reasons:
1. The report was hearsay because it was “untrustworthy” under Evid. Code § 1280(c) because it was certified 32 days before it was printed; and
2. The report wasn’t forwarded by the lab to the DMV within 15 days of the arrest, as required by the Vehicle Code.

The DMV hearing officer rejected Miyamoto’s objections, ruling that the report was admissible, and upholding the suspension of the defendant’s driving license.

Miyamoto petitioned the superior court for a writ of mandate to set aside the suspension order. Miyamoto argued that the Lab Report was not admissible under the public employee records exception to the hearsay rule for two reasons.
First, he asserted that the document was untrustworthy under Evid. Code § 1280(c) because although it was certified on March 26, 2007, it was not printed until April 26, 2007. Miyamoto argued that “[i]t is physically impossible for a person to sign a document which is not yet in existence.” Second, Miyamoto argued that even if the Lab Report was prepared on March 26, 2007, it was not admissible under the public employee records exception because it was not prepared “at or near the time” of the testing under Evid. Code § 1280(d), which occurred on March 23, 2007. He argued that since the Lab Report contained the only evidence of his blood-alcohol content and should have been excluded, there was insufficient evidence to support the hearing officer’s finding that he was driving with a blood-alcohol content in excess of 0.08 percent.

The DMV opposed the petition, arguing that Miyamoto’s contentions were “without merit because the lab report expressly states that the recording of the analysis results was done at the time the analysis was performed.” The DMV argued that Miyamoto’s contentions were based on a mistaken interpretation of the report and that March 26, 2007, was not the date the lab results were reported but the date they were reviewed by the “reviewer.”

The court sided with defendant, finding that the Lab Report was “insufficient to meet the requirements of Evidence Code Section 1280, [subdivision] (b) because it does not establish that it was prepared at or near the time of the analysis and the entry of the data.” The court reasoned that both arguments were “equally probable,” and that the DMV had the burden of proving the report’s admissibility. Having failed to do that convincingly, the court ruled the document was not “trustworthy” under §1280(c) of the Evid. Code. Because it failed to establish that it was prepared at or near the time of the analysis and the entry of the data,” the court granted the writ. The court ordered the DMV to set aside its order suspending Miyamoto’s license, and awarded Miyamoto his costs of suit.

DMV appealed to the appellate court, contending that the trial court erred when it concluded that the Lab Report was inadmissible hearsay and asserts that, as a matter of law, the Lab Report was admissible under section 1280, because the test results were recorded at the time that the test was done. The DMV also contends that after the court found two equally probable interpretations of the March 26, 2007 date on the Lab Report, the court erred in finding in favor of Miyamoto because Miyamoto, not the DMV, had the burden of proof in the trial court.

Findings: The appellate court started by noting that in this case, the appropriate standard for review was the defferential abuse of discretion.

The trial court found that the lab report did not meet the timeliness requirement under § 1280(c) because it did not establish that it was prepared at or near the time of the analysis of the blood sample. The court reasoned that how soon a writing must be made after the act or event is a matter of degree and calls for the exercise of reasonable judgment on the part of the trial judge. This judgment is not to be made arbritrarily or by use of artificial time limits, but rather must take into account practical considerations, such as: the nature of the information recorded; and the immutable reliability of the sources from which the information was drawn. ‘Whether an entry made subsequent to the transaction has been made within a sufficient time to render it within the [hearsay] exception depends upon whether the time span between the transaction and the entry was so great as to suggest a danger of inaccuracy by lapse of memory.

§ 1280 applies to “writings” made as records of acts, conditions or events, and the evidence code defines the term broadly. The term includes: handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. Here, the writing consists of records from a database, thus the critical date for the purpose of the public employee records exception to the hearsay rule is the date that the test results were first recorded in that database. In reviewing the timeliness requirement, the court should consider the length of time between the act, condition, or event and the date of its recording, not the date of its eventual retrieval by computer printout.

The court reviewed two cases in which the admissibility of lab reports was properly disallowed. In Glatman v. Valverde (2006) 146 Cal.App.4th 700, 703 [53 Cal. Rptr. 3d 319], the motorist’s blood sample was analyzed on July 25, 2005, and analyzed a second time, by another analyst, a day later. Both analysts signed the report, which was dated one week after the first test was done. The DMV argued that the analysts entered the test results into the lab’s computer database shortly after completing each test and that the preparation of the report one week later simply involved retrieving the data from the database. The appellate court disagreed and observed that the record was silent regarding the procedures that the analysts used to record their test results and that there was no evidence that the test results were recorded in a computer database or anywhere else before the report was prepared. The court in that case ruled that the trial court did not abuse its discretion in ruling the report inadmissible.

In Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 987 [91 Cal. Rptr. 3d 792], this same appellate court held that the trial court did not abuse its discretion when it held that a forensic lab report was inadmissible because it was not prepared at or near the time of the recorded event. In Molenda, “there [was] no evidence the test result was entered into a computer database or recorded in any manner prior to the preparation of the written report, which was done one week after the analysis was completed. The report stated that information regarding the examination and conclusions are entered into and are maintained within the DOJ Laboratory Information Management System (LIMS) database. It did not state when the test results were entered into the database. Further, the record was silent regarding the lab’s policies and procedures for recording test results.

Because the trial court, in ruling the report inadmissible, focused on the date of certification rather than the date the results were recorded, it applied the wrong legal standard in drawing its conclusions, and abused its discretion in doing so. The trial court’s decision was reversed, and the case remanded with instructions to deny defendant’s petition for writ of mandamus and reinstate the suspension of his driver’s license.

Case Blurb: Covad; Don’t blame the processing platform

Post Process: Previous decisions in this contentious case required, among other things, that the producing party submit itself to a third party forensics expert for an examination of its search protocol. In the instant decision, producing party was defending the fact that, after having produced e-mail in hard copy format, and then being ordered to re-produce it in native format, it only produced a native sub-set of the original imaged production. The producing party, in effect, blamed the processing platform for its difficulties in reconciling the two production sets. The court responded:
While the nature of the discrepancy is not explained, I have to assume that fewer e-mails have been produced in native format than were produced on paper. Revonet explains that the platform that Revonet originally used to search for documents was only capable of exporting documents to an HTML format. Thus, Revonet had to use a different platform to obtain .pst files and therefore could not re-run the original search exactly. This may explain the discrepancy. Neither party provides information about the magnitude of the discrepancy, however, largely because Revonet claims that it would be too burdensome for it to cross-reference the electronic documents against the hard copies to determine how many and which e-mails are missing.

While I appreciate that it would be difficult for Revonet to go back through its papers to determine whether all of the documents contained therein have since been produced and that Revonet’s present counsel did not supervise or conduct the August, 2008 search for e-mails, I also appreciate that it is a burden of Revonet’s own making. Covad should not be penalized by Revonet’s failure to maintain its discovery materials in some sort of organized fashion or keep some record of its own actions in this lawsuit. Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (“[P]roducing party must preserve the integrity of the electronic documents it produces. Failure to do so will not support a contention that production of documents in native format is overly burdensome.”).

Post Process: In other words, a burden of one’s own making is not a basis for asserting undue burden. Another maxim: choose your platform wisely.

Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009).

Social Media: Careful while Handling

From Michigan comes an article that warns about the evidentiary value of data posted to social media sites. The bottom line quote:

“Don’t put anything on a social network page, blog, Web site or in an email,” he said, “that you don’t want printed on the front page of the newspaper.”

Although you’ve heard it before…you’ll hear it again here.

Boom and Bust

According to Michelle Lange, writing in the ABA Journal, we’ve seen an E-Discovery boom…are we now facing a bust? According to the article:

But growth has slowed sharply from annual rates of more than 40 percent just a few years ago, according to Socha’s surveys. And it’s getting much harder to compete profitably in an industry that is coming of age during the worst economic downturn in decades. For one thing, clients no longer are willing to write open-ended checks for services that easily can exceed $1.75 million for an average case.
“Growth has started to moderate and margins have started to decrease,” says Nick Baughan of investment banking firm Marks Baughan & Co. in Cornshohocken, Pa., which advised such deals as
Applied Discovery’s sale to LexisNexis.

One interesting quote is:

“It was almost like a gold rush,” says John Bace, research vice president of Gartner Inc. in Stamford, Conn. “People saw e-discovery as a quick and easy way to make money.”

All I can say to that is that it has been possible to make good money in the industry…but at least for me, it has never been easy.

Electronic Discovery Blog talks Project Managment

The Electronic Discovery Blog posts a brief note on the importance of Project Management in the EDD space. From the blog:

Project management is likewise the key to success in e-discovery. Project management facilitates the coordination of the many parties involved, promotes communication between those parties, allows a record of the process to be created, and promotes discipline throughout the process. Project management fosters the creation of a repeatable process, and is an essential requirement for a successful e-discovery outcome.

Case Blurbs-OR: In re Helicopter Crash near Wendle Creek; Dist. Court Predicts Oregon will allow Spoliation Cause of Action

Post Process-This is an opinion by a district court in Connecticut sitting in judgment of a diversity case to be tried under the laws of the state of Oregon.

The Oregon Supreme Court has not yet considered whether intentional or negligent spoliation claims present cognizable causes of action. In such instances, “[i]n the absence of controlling forum state law, a federal court sitting in diversity must use its own best judgment in predicting how the state’s highest court would decide the case.”

In [Blincoe v. Western States Chiropractic College, 2007 U.S. Dist. LEXIS 51955, 2007 WL 2071916 (D. Or. July 14, 2007)], Magistrate Judge Papak recommended granting the defendant’s motion to dismiss an intentional spoliation claim and concluded that “Oregon law does not recognize the tort of intentional spoliation of evidence by a party.” Judge Papak’s analysis considered the law of other states, as well as Oregon’s numerous statutory, non-tortious remedies dealing with spoliation of evidence, in reaching that conclusion. FN2.

In Marcum v. Adventist Health System/West, 215 Ore. App. 166, 168 P.3d 1214, 1228-29 (Or. App. 2007), rev’d on other grounds, 345 Ore. 237, 193 P.3d 1 (Or. 2008), the Oregon appellate court acknowledged the parties’ dispute regarding spoliation causes of action under Oregon law, declined to “address the precise contours” of a negligent spoliation claim, and ultimately held that the plaintiff-appellant’s negligent spoliation claim failed. Nonetheless, the Marcum court discussed the merits of that claim:

We need not, and do not, address the precise contours of a cognizable claim for “negligent spoliation” under Oregon law. That is so because plaintiff here failed to make a prima facie showing that defendants’ alleged failure to maintain or produce the allegedly “missing” records materially impaired her prosecution of her medical negligence and informed consent claims.

Plaintiff’s “negligent spoliation” claim is akin to a legal malpractice claim in that “damages arise from the loss” — or diminution of value — of an underlying claim. . . . [P]laintiff’s primary medical negligence and informed consent claims ultimately failed for lack of proof of scientific/medical causation. Plaintiff argues that, if the allegedly absent records had been created or maintained and produced, Williamson might have been provided with the “missing link” that would have enabled him to identify and persuasively explain the causal relationship between gadolinium extravasation and Raynaud’s syndrome. Specifically, plaintiff points to the fact that no records reflect the amount of gadolinium used during the procedure. . . .

Accordingly, on this record, there is no evidence that plaintiff’s prosecution of her primary claims was materially impaired by the absence of such information-whether because of affirmative “spoliation” or by any negligent failure to create, maintain, or produce records pertaining to the MRI procedure.

Even without discussing the precise nature and elements of a negligent spoliation claim, absent further guidance or development from the Oregon Supreme Court, the appellate court’s decision in Marcum indicates that Sikorsky’s proposed amendments adding spoliation claims would not be futile. Absent a more recent or more authoritative ruling to the contrary, I predict on the basis of the Marcum decision that the Supreme Court of Oregon would recognize intentional and negligent spoliation of evidence as causes of action. FN3. “In the absence of a pronouncement by the highest court of a state, the federal courts must follow the decision of the intermediate appellate courts of the state unless there is convincing evidence that the highest court of the state would decide differently.” Here, there is no convincing evidence that the Oregon Supreme Court would not recognize spoliation causes of action.

FN2: Although Judge Papak’s findings and recommendation in Blincoe were adopted by the district court, the district court did not consider or develop the spoliation questions any further; neither did Magistrate Judge Papak in later proceedings.

FN3:The Court of Appeals of Oregon discussed negligent spoliation of evidence, but did not address the question of intentional spoliation. Because intentional spoliation, by its nature, involves a more deliberate action than negligent spoliation, I believe that, if the Oregon Supreme Court were to recognize negligent spoliation as a cause of action, the court would also recognize intentional spoliation of evidence as a cause of action.

In re Helicopter Crash near Wendle Creek, 2009 U.S. Dist. LEXIS 41477 (D. Conn. May 18, 2009)(internal citations omitted).

What happens when the Review Application is Smarter than we are?

According to an article in the Science section of the NY Times, scientists have become concerned that machines may one day outsmart us.

Impressed and alarmed by advances in artificial intelligence, a group of computer scientists is debating whether there should be limits on research that might lead to loss of human control over computer-based systems that carry a growing share of society’s workload, from waging war to chatting with customers on the phone.

Their concern is that further advances could create profound social disruptions and even have dangerous consequences.

I think that there is no doubt that a profound change is occurring here, and that we need to (at least attempt to) proactively manage the change. In our industry, we have seen some displacement of attorneys reviewing documents due to outsourcing. What happens when the review application not only stores the review data, but also actually conducts the review for relevance as well? Yet trying to install limits on the growth of technology is a difficult, and perhaps ill-advised, effort.

The article continues by mentioning scenarios which have machines taking over…or at least foresee the ending of the “human era.” Interestingly, the final passages look at an interesting occurrence in these times:
Despite his concerns, Dr. Horvitz said he was hopeful that artificial intelligence research would benefit humans, and perhaps even compensate for human failings. He recently demonstrated a voice-based system that he designed to ask patients about their symptoms and to respond with empathy. When a mother said her child was having diarrhea, the face on the screen said, “Oh no, sorry to hear that.”

A physician told him afterward that it was wonderful that the system responded to human emotion. “That’s a great idea,” Dr. Horvitz said he was told. “I have no time for that.”

So here, we program a machine to simulate human emotion, alleviating the need for a real human to be supportive. Of all the ways the future can go, I would say that humans attempting to emulate machine-like behavior for the sake of efficiency is the worst choice. We cannot be better machines than machines…we can only maintain a true course in all of this chaos by embracing our own humanity. The doctor above who “had no time” to be supportive needs (ahem) to be re-programmed.

E-Discovery Issue of Law Review Coming Out

In February, I attended, and spoke at, an E-Discovery Symposium in Covington, KY (just across the way from Cincinnati) hosted by Salmon P. Chase Law School at Northern Kentucky University. Panelists included Professors Debra Lyn Basset (U. of Alabama) and Stephen Gensler (U. of Oklahoma) and Steven Bennett of Jones Day.

Well, now the school is publishing a companion issue of the law review, and it is completely dedicated to electronic discovery (no electronic link available yet…the law review site still has the previous issue’s information posted). Table of contents for the issue:

Articles

• Jennifer Anglim Kreder (Prof. Chase School of Law) and Bryce C. Rhoades (JD candidate, Chase School of Law) write…Introduction: Navigating the Changing Ethical and Practical Expectations for E-Discovery.
• Steven C. Bennett (Jones Day) writes…The Ethics of Legal Outsourcing.
• Roland Bernier (your dedicated blogger!) writes…Avoiding the E-Discovery Odyssey.
• Stephen S. Gensler (Prof. U. Oklahoma School of Law) writes…Some Thougts on the Lawyer’s E-volving Duties in Discovery.

Notes

• Robert E. Altman & Benjamin Lewis (JD Candidates, Chase School of Law) write…Cost-Shifting in ESI Discovery Disputes: A Five Factor Test to Promote Consistency and Set Party Expectations.
• Emily N. Litzinger (JD Candidate, Chase School of Law) writes…The Ethical Dilemma of Scrubbing Metadata: The Pathway to a Better Approach.
• Christine M. Steimle (JD Candidate, Chase School of Law) writes…The Decision to Compel Unrestricted Foreign Imaging: A Note Discussing John B. v. Goetz.

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This post will self-destruct in 5…4…3…

If you’re hearing the Mission Impossible theme, then we are on the same page. Science Daily has an article discussing a method allowing content to expire and self destruct. Developed by University of Washington computer scientists, the technology would make it so that even the content’s original sender couldn’t retrieve the data beyond the “expiration date.” Why do this?

“If you care about privacy, the Internet today is a very scary place,” said UW computer scientist Tadayoshi Kohno. “If people understood the implications of where and how their e-mail is stored, they might be more careful or not use it as often.”

Nothing there a surprise to people in this industry. How does it work?

The Vanish prototype washes away data using the natural turnover, called “churn,” on large file-sharing systems known as peer-to-peer networks. For each message that it sends, Vanish creates a secret key, which it never reveals to the user, and then encrypts the message with that key. It then divides the key into dozens of pieces and sprinkles those pieces on random computers that belong to worldwide file-sharing networks, the same ones often used to share music or movie files. The file-sharing system constantly changes as computers join or leave the network, meaning that over time parts of the key become permanently inaccessible. Once enough key parts are lost, the original message can no longer be deciphered.

[...]

Unlike existing commercial encryption services, a message sent using Vanish is kept private by an inherent property of the decentralized file-sharing networks it uses.

A big advantage to the system, is that the user has no need to trust an administrator or service provider. The system takes personal action and discretion out of the equation.