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.

ABA Section Journal Addresses Admissibility of Text & Instant Messages

The March Issue of Litigation News (no link available to current issue) contains an article relating to the Admissibility of text and instant messages. According to the article, the major challenge for authenticating the messages is “usually proving the identity of the persons in the conversation.” These challenges are, however, navigable. To wit:

The New York Appellate Division, for example, recently held that the trial court properly admitted an Internet text message that had been authenticated strictly on the basis of circumstatial evidence. People v. Pierre. The sender, a defendant in a murder trial, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution did not ask the Internet service provider to authenticate the message, and the witness who testified to its origination did not print or save the message.

Even so, the witness testified that she knew the defendant’s screen name, and she had sent an instant message to that name. The Appellate Division noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Most importantly, there was no suggestion that anyone had impersonated him. Thus, the court found that these factors were sufficient to warrant admission.

The article contrasts this situation with a decision by a California court to exclude a text message, because prosecutors failed to properly authenticate it, and circumstances were such that more than one person could have sent it. The Second Circuit recently rejected a court’s decision to admit a chat session’s transcript made by cutting a pasting the text from the chat window into another file format (presumably Word?). The article concludes by emphasizing the need for attorneys to engage experts:

“As a practical matter,” says Steven A. Weiss, Chicago, former Co-Chair of the Section’s Technology for the Litigator Committee, “because of the myriad of devices being used to send and receive electronic messages, lawyers will usually need an IT expert to access and retrieve IMs and text messages, and to explain to the cour how the information is stored in a particular device and how it was retrieved.”

The Challenges in Admitting Computer Records as Evidence

Computer forensics expert Scott Ellis has written an article discussing the changes wrought by the digital age, and some of the barriers to admitting computer data as evidence in court. Mr. Ellis touches on authentication issues:

Recently, a friend forwarded an article published about a case ruling in which a routine e-mail exhibit was found inadmissible because of authenticity and hearsay issues. What we should take away from that ruling is electronically stored information (ESI), just like any other evidence, must clear standard evidentiary hurdles. Whenever ESI is offered as evidence, the following evidence rules must be considered.

An excellent opinion that doubles as a treatise on authentication was written by Judge Paul Grimm, in the case of Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007). The article continues on the subject.

Real evidence must be competent (authenticated), relevant and material. For example, a computer that was involved in a matter would be considered real evidence provided it hasn’t been changed, altered or accessed in a way that destroyed the evidence. The ability to use these items as evidence may be contingent on this and is why preservation of a computer or digital media must be done.

It is true that the manner in which data acquisition occurred can influence the ability to authenticate the evidence, and that a computer forensics expert would naturally focus on that aspect of authentication. We must add, though, that collection is but one part of leaping evidentiary hurdles, and much of the authentication process depends upon the type of digital evidence one is trying to get admitted. Again, read the Lorraine opinion, or look at the case blurbs from the opinion here on Post Process to get an idea how it all works.

Case Blurb: Cafe Asia; Court Links Discoverability to Admissibility in certain circumstances

Defendant rightly notes that the scope of discovery under Rule 26 of the Federal Rules of Civil Procedure is broad. See, e.g., Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1348-49 (D.C. Cir. 1984) (noting the “broad sweep” of Rule 26(b)(1) in allowing discovery of relevant material). Even if this broad scope were to shine a light of relevancy on the images, however, relevancy alone does not entitle a requesting party to carte blanche in discovery. See Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (“Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly.”). As with most things in life, Rule 26 is not an all-or-nothing proposition.

One important constraint is the admissibility of the discovery being sought. Defendant asserts that the images, if relevant, are discoverable under Rule 26 even if inadmissible at trial. This holds true, however, only if the images “appear[] reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). See also Tequila Centinela, S.A. de C.V. v. Bacardi & Co. Ltd., 242 F.R.D. 1, 6 (D.D.C. 2007) “discovery of matters not ‘reasonably calculated to lead to the discovery of admissible evidence’ are not within the scope of discovery.”).

To the extent that defendant aims to use the graphic content of the images to establish plaintiff’s “own standards of behavior,” Mot. to Compel at 1 (emphasis in original), the images themselves are the “end game” of the discovery request. As such, the question of discoverability is inseparable from admissibility, and a determination is necessary of whether, under Federal Rules of Evidence 403 and 412(b)(2), the probative value of the images substantially outweighs their prejudice.

Smith v. Café Asia, 2007 U.S. Dist. LEXIS 73071 (D.D.C. Oct. 2, 2007) (courtesy of the Electronic Discovery Blog and Lexis Nexis).

Case Blurb: Lorraine; Authenticating digital photographs

Photographs have been authenticated for decades under Rule 901(b)(1) by the testimony of a witness familiar with the scene depicted in the photograph who testifies that the photograph fairly and accurately represents the scene.

Calling the photographer or offering exert testimony about how a camera works almost never has been required for traditional film photographs.

Today, however, the vast majority of photographs taken, and offered as exhibits at trial, are digital photographs, which are not made from film, but rather from images captured by a digital camera and loaded into a computer.

Digital photographs present unique authentication problems because they are a form of electronically produced evidence that may be manipulated and altered.

Indeed, unlike photographs made from film, digital photographs may be “enhanced.”

• Digital image “enhancement consists of removing, inserting, or highlighting an aspect of the photograph that the technician wants to change.”

Examples of enhancement:

• [S]uppose that in a civil case, a shadow on a 35 mm photograph obscures the name of the manufacturer of an offending product. The plaintiff might offer an enhanced image, magically stripping the shadow to reveal the defendant’s name.
• Or suppose that a critical issue is the visibility of a highway hazard. A civil defendant might offer an enhanced image of the stretch of highway to persuade the jury that the plaintiff should have perceived the danger ahead before reaching it.
• In many criminal trials, the prosecutor offers an ‘improved’, digitally enhanced image of fingerprints discovered at the crime scene. The digital image reveals incriminating points of similarity that the jury otherwise would never would have seen.

There are three distinct types of digital photographs that should be considered with respect to authentication analysis:

• original digital images,
• digitally converted images, and
• digitally enhanced images.

Original digital images

• An original digital photograph may be authenticated the same way as a film photo, by a witness with personal knowledge of the scene depicted who can testify that the photo fairly and accurately depicts it.
• If a question is raised about the reliability of digital photography in general, the court likely could take judicial notice of it under Rule 201.

Digitally Converted Images

• [A]uthentication requires an explanation of the process by which a film photograph was converted to digital format.
• This would require testimony about the process used to do the conversion, requiring a witness with personal knowledge that the conversion process produces accurate and reliable images, Rules 901(b)(1) and 901(b)(9)-the later rule implicating expert testimony under Rule 702.
• Alternatively, if there is a witness familiar with the scene depicted who can testify that the photo produced from the film when it was digitally converted, no testimony would be needed regarding the process of digital conversion.

Digitally Enhanced Images

• For digitally enhanced images, it is unlikely that there will be a witness who can testify how the original scene looked if, for example, a shadow was removed, or the colors were intensified. In such a case, there will need to be proof, permissible under Rule 901(b)(9), that the digital enhancement process produces reliable and accurate results, which gets into the realm of scientific or technical evidence under Rule 702.
• Recently, one state court has given particular scrutiny to how this should be done.
• In State v. Swinton, the defendant was convicted of murder in part based on evidence of computer enhanced images prepared using the Adobe Photoshop software. 847 A.2d 921, 950-52 (Conn.2004).
• The images showed a superimposition of the defendants teeth over digital photographs of bite marks taken from the victim’s body.
• At trial, the state called the forensic odontologist (bite mark expert) to testify that the defendant was the source of the bite marks on the defendant.
• However, the defendant testified that he was not familiar with how the Adobe Photoshop made the overlay photographs, which involved a multi-step process in which a wax mold of the defendant’s teeth was digitally photographed and scanned into the computer to then be superimposed on the photo of the victim.
• The trial court admitted the exhibits over objection, but the state appellate court reversed, finding that the defendant had not been afforded a chance to challenge the scientific or technical process by which the exhibits had been prepared.
• The court stated that to authenticate the exhibits would require a sponsoring witness who could testify, adequately and truthfully, as to exactly what the jury was looking at, and the defendant had a right to cross-examine the witness concerning the evidence.
• Because the witness called by the state to authenticate the exhibits lacked the computer expertise to do so, the defendant was deprived of the right to cross examine him.

Because the process of computer enhancement involves a scientific or technical process, one commentator has suggested the following foundation as a means to authenticate digitally enhanced photographs under Rule 901(b)(9):

1. The witness is an expert in digital photography;
2. the witness testifies as to image enhancement technology, including the creation of the digital image consisting of pixels and the process by which the computer manipulates them;
3. the witness testifies that the processes used are valid;
4. the witness testifies that there has been “adequate research into the specific application of image enhancement technology involved in the case”;
5. the witness testifies that the software used was developed from the research;
6. the witness received a film photograph;
7. the witness digitized the film photograph using the proper procedure, then used the proper procedure to enhance the film photograph in the computer;
8. the witness can identify the trial exhibit as the product of the enchantment process he or she performed.

The author recognized that this is an “extensive foundation,” and whether it will be adopted by courts in the future remains to be seen. Id. However, it is probable that courts will require authentication of digitally enhanced photographs by adequate testimony that it is the product of a system or process that produces accurate and reliable results. Fed.R.Evid. 901(b)(9).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; Authenticating Computer Aminations and Computer Simulations

Computer Animation

Defined: “the display of a sequence of computer-generated images.”

The attraction of this form of evidence is irresistible, because:

• [W]hen there is no movie or video of the event being litigated, a computer animation is a superior method of communicating the relevant information to the trier of fact. Absent a movie or video, the proponent might have to rely on static charts or oral testimony to convey a large amount of complex information to the trier of fact.
• When the proponent relies solely on oral expert testimony, the details may be presented one at a time; but an animation can piece all the details together for the jury. A computer animation in effect condenses the information into a single evidentiary package.
• In part due to television, the typical American is a primarily visual learner; and for that reason, in the short term, many jurors find the animation more understandable than charts or oral testimony. Use of an animation can also significantly increase long-term juror retention of the information.

Computer Simulations

The distinction between animation and simulation has been explained usefully as follows:

• Computer generated evidence is an increasingly common form of demonstrative evidence. If the purpose of the computer evidence is to illustrate and explain a witness’s testimony, courts usually refer to the evidence as an animation. In contrast, a simulation is based on scientific or physical principles and data entered into a computer, which is programmed to analyze the data and draw a conclusion from it, and courts generally require proof to show the validity of the science before the simulation evidence is admitted
• Thus, the classification of a computer-generated exhibit as a simulation or an animation also affects the evidentiary foundation required for its admission.

Courts generally have allowed the admission of computer animations if authenticated by testimony of a witness with personal knowledge of the content of the animation, upon a showing that it fairly and adequately portrays the facts and that it will help to illustrate the testimony given in the case. This usually is the sponsoring witness.

Computer simulations are treated as a form of scientific evidence, offered for a substantive, rather than demonstrative purpose.

The case most often cited with regard to the foundational requirements needed to authenticate a computer simulation is Commercial Union v. Boston Edison, where the court stated:

The function of computer programs like TRACE ‘is to perform rapidly and accurately an extensive series of computations not readily accomplished without use of a computer.’ We permit experts to base their testimony on calculations performed by hand. There is no reason to prevent them from performing the same calculations, with far greater rapidity and accuracy, on a computer. Therefore … we treat computer-generated models or simulations like other scientific tests, and condition admissibility on a sufficient showing that:

1. the computer is functioning properly;
2. the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party, so that they may challenge them); and
3. the program is generally accepted by the appropriate community of scientists.

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; How to authenticate Computer Stored Records and Data

“Many kinds of computer records and computer- generated information are introduced as real evidence or used as litigation aids at trials. They range from computer printouts of stored digital data to complex computer-generated models performing complicated computations. Each may raise different admissibility issues concerning authentication and other foundational requirements.”

Documents merely stored on a computer.

• The least complex admissibility issues are associated with electronically stored records.
• “In general, electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues.”
• That said, although computer records are the easiest to authenticate, there is growing recognition that more care is required to authenticate these electronic records than traditional “hard copy” records.
• Manual for Complex Litigation
• Computerized data, however, raise unique issues concerning accuracy and authenticity. Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions.
• The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling.
• The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy.
• The judge should therefore consider the accuracy and reliability of computerized evidence…
• IMWINKELRIED, EVIDENTIARY FOUNDATIONS at 4.03[2].
• “In the past, many courts have been lax in applying the authentication requirement to computer records; they have been content with foundational evidence that the business has successfully used the computer system in question and that the witness recognizes the record as output from the computer.
• However, following the recommendations of the Federal Judicial Center’s Manual for Complex Litigation, some courts now require more extensive foundation.
• These courts require the proponent to authenticate a computer record by proving the reliability of the particular computer used, the dependability of the business’s input procedures for the computer, the use of proper procedures to obtain the document offered in court, and the witness’s recognition of that document as the readout from the computer.” (citation omitted).
• Two approaches: Lenient vs. Strict
• Lenient
• In United States v. Meienberg, the defendant challenged on appeal the admission into evidence of printouts of computerized records of the Colorado Bureau of Investigation, arguing that they had not been authenticated because the government had failed to introduce any evidence to demonstrate the accuracy of the records. 263 F.3d at 1180-81. The Tenth Circuit disagreed, stating:
• Any question as to the accuracy of the printouts, whether resulting from incorrect data entry or the operation of the computer program, as with inaccuracies in any other type of business records, would have affected only the weight of the printouts, not their admissibility.
• (References Kassimu, 2006 WL 1880335 (To authenticate computer records as business records did not require the maker, or even a custodian of the record, only a witness qualified to explain the record keeping system of the organization to confirm that the requirements of Rule 803(6) had been met, and the inability of a witness to attest to the accuracy of the information entered into the computer did not preclude admissibility));
• References Sea Land v. Lozen Int’l, 285 F.3d 808 (9th Cir.2002) (ruling that trial court properly considered electronically generated bill of lading as an exhibit to a summary judgment motion. The only foundation that was required was that the record was produced from the same electronic information that was generated contemporaneously when the parties entered into their contact. The court did not require evidence that the records were reliable or accurate)).
• Strict
• [I]n the case of In Re Vee Vinhnee, the bankruptcy appellate panel upheld the trial ruling of a bankruptcy judge excluding electronic business records of the credit card issuer of a Chapter 7 debtor, for failing to authenticate them. 336 B.R. 437.
• The court noted that “it is becoming recognized that early versions of computer foundations were too cursory, even though the basic elements covered the ground.” Id. at 445-46. The court further observed that:
• The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created…. Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.
• The court reasoned that, for paperless electronic records:
• The logical questions extend beyond the identification of the particular computer equipment and programs used. The entity’s policies and procedures for the use of the equipment, database, and programs are important. How access to the pertinent database is controlled and, separately, how access to the specific program is controlled are important questions. How changes in the database are logged or recorded, as well as the structure and implementation of backup systems and audit procedures for assuring the continuing integrity of the database, are pertinent to the question of whether records have been changed since their creation.
• In order to meet the heightened demands for authenticating electronic business records, the court adopted, with some modification, an eleven-step foundation proposed by Professor Edward Imwinkelried.
• Professor Imwinkelried perceives electronic records as a form of scientific evidence and discerns an eleven-step foundation for computer records:
1. The business uses a computer.
2. The computer is reliable.
3. The business has developed a procedure for inserting data into the computer.
4. The procedure has built-in safeguards to ensure accuracy and identify errors.
5. . The business keeps the computer in a good state of repair.
6. The witness had the computer readout certain data.
7. The witness used the proper procedures to obtain the readout.
8. The computer was in working order at the time the witness obtained the readout.
9. The witness recognizes the exhibit as the readout.
10. The witness explains how he or she recognizes the readout.
11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.
• Although the position taken by the court in In Re Vee Vinhnee appears to be the most demanding requirement for authenticating computer stored records, other courts also have recognized a need to demonstrate the accuracy of these records.
• (References State v. Dunn, 7 S.W.3d 427, 432 (Mo.Ct.App.2000) (Admissibility of computer-generated records “should be determined on the basis of the reliability and accuracy of the process involved.”));
• (References State v. Hall, 976 S.W.2d 121, 147 (Tenn.1998 ) ( “[T]he admissibility of the computer tracing system record should be measured by the reliability of the system, itself, relative to its proper functioning and accuracy.”)).
• In addition to their insight regarding the authentication of electronic records, these cases are also important in connection to the analysis of whether certain types of electronically stored records constitute hearsay when offered for their substantive truth.
• Court’s statement on the trend, and counsel’s responsibilities:
• As the foregoing cases illustrate, there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed. Further, it would not be surprising to find that, to date, more courts have tended towards the lenient rather than the demanding approach. However, it also is plain that commentators and courts increasingly recognize the special characteristics of electronically stored records, and there appears to be a growing awareness, as expressed in the Manual for Complex Litigation, that courts “should … consider the accuracy and reliability of computerized evidence” in ruling on its admissibility. Lawyers can expect to encounter judges in both camps, and in the absence of controlling precedent in the court where an action is pending setting forth the foundational requirements for computer records, there is uncertainty about which approach will be required. Further, although “it may be better to be lucky than good,” as the saying goes, counsel would be wise not to test their luck unnecessarily. If it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied. If less is required, then luck was with you.
• The methods of authentication most likely to be appropriate for computerized records are:
• 901(b)(1) (witness with personal knowledge),
• 901(b)(3) (expert testimony),
• 901(b)(4) (distinctive characteristics), and
• 901(b)(9) (system or process capable of producing a reliable result).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; Authenticating Text Messages and Chat Room Content

Many of the same foundational issues found encountered when authenticating website evidence apply with equal force to text messages and internet chat room content; however, the fact that chat room messages are posted by third parties, often using “screen names” means that it cannot be assumed that the content found in chat rooms was posted with the knowledge or authority of the website host.

One commentator has suggested that the following foundational requirements must be met to authenticate chat room evidence:

1. [e]vidence that the individual used the screen name in question when participating in chat room conversations (either generally or at the site in question);
2. [e]vidence that, when a meeting with the person using the screen name was arranged, the individual … showed up;
3. [e]vidence that the person using the screen name identified [himself] as the [person in the chat room conversation];
4. evidence that the individual had in [his] possession information given to the person using the screen name;
5. [and][e]vidence from the hard drive of the individual’s computer [showing use of the same screen name].

Courts also have recognized that exhibits of chat room conversations may be authenticated circumstantially.

• (References In Re F.P., A Minor, in which the defendant argued that the testimony of the internet service provider was required, or that of a forensic expert. 878 A.2d at 93- 94). The court held that circumstantial evidence, such as the use of the defendant’s screen name in the text message, the use of the defendant’s first name, and the subject matter of the messages all could authenticate the transcripts.
• (References United States v. Simpson, the court held that there was ample circumstantial evidence to authenticate printouts of the content of chat room discussions between the defendant and an undercover detective, including use of the e-mail name of the defendant, the presence of the defendant’s correct address in the messages, and notes seized at the defendant’s home containing the address, e-mail address and telephone number given by the undercover officer. 152 F.3d at 1249).
• (References United States v. Tank, the court found sufficient circumstantial facts to authenticate chat room conversations, despite the fact that certain portions of the text of the messages in which the defendant had participated had been deleted. 200 F.3d at 629-31). There, the court found the testimony regarding the limited nature of the deletions by the member of the chat room club who had made the deletions, circumstantial evidence connecting the defendant to the chat room, including the use of the defendant’s screen name in the messages, were sufficient to authenticate the messages.

Based on the foregoing cases, the rules most likely to be used to authenticate chat room and text messages, alone or in combination, appear to be:

• 901(b)(1) (witness with personal knowledge) and
• 901(b)(4) (circumstantial evidence of distinctive characteristics).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Defense Attorney Discusses IM as Evidence

Law.com has posted a New York Law Journal article written by defense attorney Ken Strutin that discusses the procedural challenges of admitting text from IM and texting technologies in court for criminal cases.

Instant messaging is an increasingly popular medium that’s sometimes an important link in the prosecution’s case. As with every new communication tool, it brings new challenges for criminal procedure.

Mr. Strutin describes how the fourth amendment’s protection of privacy factors into the equation, and discusses a number of cases in which courts have ruled on the matter.

While the science of surveillance continues to advance, new techniques and technologies must still meet the acid test of the Fourth Amendment. The probable cause and particularity requirements have been interpreted to prevent “roving commissions” to seize conversations overheard through listening devices, [] and today ought to apply to messages captured through e-mail or IM.

The author does not address the issue of IM in the context of a civil action, but criminal procedures are, in the aftermath of Enron and the like, more relevant than ever for corporations.

Case Blurb: Lorraine; Authenticating Internet Website Postings

[Courts' previous] reaction[s] ha[ve] ranged from the famous skepticism expressed in St. Clair v. Johnny’s Oyster and Shrimp, Inc., 76 F.Supp.2d 773 (S.D.Tex.1999):

• There, the court stated that, Plaintiff’s electronic ‘evidence’ is totally insufficient to withstand Defendant’s Motion to Dismiss. While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant’s Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed.R.Evid. 807. Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form from the United States Coast Guard or discover alternative information verifying what Plaintiff alleges.

to the more permissive approach taken in Perfect 10, 213 F.Supp.2d at 1153-54.

• The court noted that a “reduced evidentiary standard” applied to the authentication of exhibits purporting to depict the defendant’s website postings during a preliminary injunction motion. The court found that the exhibits had been authenticated because of circumstantial indicia of authenticity, a failure of the defendant to deny their authenticity, and the fact that the exhibits had been produced in discovery by the defendant. The court declined to require proof that the postings had been done by the defendant or with its authority, or evidence to disprove the possibility that the contents had been altered by third parties.

The issues that have concerned courts include the possibility that third persons other than the sponsor of the website were responsible for the content of the postings, leading many to require proof by the proponent that the organization hosting the website actually posted the statements or authorized their posting.

• (References United States v. Jackson, 208 F.3d 633, 638 (7th Cir.2000) (excluding evidence of website postings because proponent failed to show that sponsoring organization actually posted the statements, as opposed to a third party));
• St. Luke’s, 2006 WL 1320242 (plaintiff failed to authenticate exhibits of defendant’s website postings because affidavits used to authenticate the exhibits were factually inaccurate and the author lacked personal knowledge of the website);

One commentator has observed “[i]n applying [the authentication standard] to website evidence, there are three questions that must be answered explicitly or implicitly.

1. What was actually on the website?
2. Does the exhibit or testimony accurately reflect it?
3. If so, is it attributable to the owner of the site?

The same author suggests that the following factors will influence courts in ruling whether to admit evidence of internet postings:

• The length of time the data was posted on the site;
• whether others report having seen it;
• whether it remains on the website for the court to verify;
• whether the data is of a type ordinarily posted on that website or websites of similar entities (e.g. financial information from corporations);
• whether the owner of the site has elsewhere published the same data, in whole or in part;
• whether others have published the same data, in whole or in part;
• whether the data has been republished by others who identify the source of the data as the website in question?

The authentication rules most likely to apply, singly or in combination, are:

• 901(b)(1) (witness with personal knowledge),
• 901(b)(3) (expert testimony),
• 901(b)(4) (distinctive characteristics),
• 901(b)(7) (public records),
• 901(b)(9) (system or process capable of producing a reliable result), and
• 902(5) (official publications).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).