Posted by rjbiii on October 16, 2009
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:
- the underlying data was entered into the database at or near the time each payment was made;
- the persons entering the data had knowledge of the payments that precipitated the data entry;
- the data was kept in the course of regularly conducted business activity; and
- 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.
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.
Posted in 9th Circuit, Admissibility of ESI, Authentication, Case Blurbs, Circuit Judge J. Clifford Wallace, Databases, FRE 1006, FRE 803, Uncategorized | Leave a Comment »
Posted by rjbiii on August 12, 2008
Plaintiffs seek the schemas for the “Google Advertising” and “Google Video Content” databases. FN7. A schema is an electronic index that shows how the data in a database are organized by listing the database’s fields and tables, but not its underlying data.
FN7:Defendants have agreed to produce the schema for the “Claims” database.
A. Google Advertising Schema
Google earns most of its revenue from fees it charges advertisers to display advertisements on Google.com (the “AdWords” program) or on third party websites that participate in its “AdSense” program. Google stores data about each of the billions of advertising transactions made in connection with those programs in the Google Advertising database. The schema for that database “constitutes commercially sensitive information regarding Google’s advertising business”, the disclosure of which would permit others to profit without equivalent investment from the “years of refinement and thousands of person hours” of work Google spent selecting the numerous data points it tracks in connection with its advertising programs. Only trivial percentages of the fields and tables in the database “possibly relate to advertising revenue generated from advertisements run on YouTube,” and defendants have “already agreed to provide Plaintiffs with the small amount of YouTube-related data contained in the Google Advertising database.”
Plaintiffs argue that the schema is relevant to “show what Defendants could have or should have known about the extent to which their advertising revenues were associated with infringing content, and the extent to which Defendants had the ability to control, block or prevent advertising from being associated with infringing videos.”
However, given that plaintiffs have already been promised the only relevant data in the database, they do not need its confidential schema, which “itself provides a detailed to roadmap to how Google runs its advertising business,” to show whether defendants were on notice that their advertising revenues were associated with infringing videos, or that defendants decline to exercise their claimed ability to prevent such associations.
Therefore, the motion for production of the Google Advertising schema is denied.
B. Google Video Schema
By plaintiffs’ description the Google Video Content database stores “information Defendants collect regarding videos on the Google Video website, which is a video-sharing website, similar to YouTube, that is operated by Defendant Google.” The Google Video website has its own video library, but searches for videos on it will also access YouTube videos.
Plaintiffs argue that the schema for that database will reveal “The extent to which Defendants are aware of and can control infringements on Google Video” which “is in turn relevant to whether Defendants had ‘reason to know’ of infringements, or had the ability to control infringements, on YouTube, which they also own and which features similar content.” (plaintiffs’ italics). That states a sufficiently plausible showing that the schema is relevant to require its disclosure, there being no assertion that it is confidential or unduly burdensome to produce.
Therefore, the motion to compel production of the Google Video schema is granted.
Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 (S.D.N.Y. July 1, 2008 ) (internal citations removed).
Posted in 2nd Circuit, Case Blurbs, Databases, Duty to Produce, Judge Louis L. Stanton, S.D.N.Y, Scope of Discovery | Leave a Comment »
Posted by rjbiii on August 12, 2008
Video-Related Data from the Logging Database
Defendants’ “Logging” database contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video. That database (which is stored on live computer hard drives) is the only existing record of how often each video has been viewed during various time periods. Its data can “recreate the number of views for any particular day of a video.” Plaintiffs seek all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website.
They need the data to compare the attractiveness of allegedly infringing videos with that of non-infringing videos. A markedly higher proportion of infringing-video watching may bear on plaintiffs’ vicarious liability claim, n3 and defendants’ substantial non-infringing use defense.
Defendants argue generally that plaintiffs’ request is unduly burdensome because producing the enormous amount of information in the Logging database (about 12 terabytes of data) “would be expensive and time-consuming, particularly in light of the need to examine the contents for privileged and work product material.”
But defendants do not specifically refute that “There is no need to engage in a detailed privilege review of the logging database, since it simply records the numbers of views for each video uploaded to the YouTube website, and the videos watched by each user.” While the Logging database is large, all of its contents can be copied onto a few “over-the-shelf” four-terabyte hard drives. Plaintiffs’ need for the data outweighs the unquantified and unsubstantiated cost of producing that information.
Defendants argue that the data should not be disclosed because of the users’ privacy concerns, saying that “Plaintiffs would likely be able to determine the viewing and video uploading habits of YouTube’s users based on the user’s login ID and the user’s IP address.”
But defendants cite no authority barring them from disclosing such information in civil discovery proceedings, FN5 and their privacy concerns are speculative. Defendants do not refute that the “login ID is an anonymous pseudonym that users create for themselves when they sign up with YouTube” which without more “cannot identify specific individuals, and Google has elsewhere stated:
We . . . are strong supporters of the idea that data protection laws should apply to any data that could identify you. The reality is though that in most cases, an IP address without additional information cannot.
FN5: The statute defendants point to, 18 U.S.C. § 2710 (titled “Wrongful disclosure of video tape rental or sale records”), prohibits video tape service providers from disclosing information on the specific video materials subscribers request or obtain, and in the case they cite, In re Grand Jury Subpoena to Amazon.com, 246 F.R.D. 570, 572-73 (W.D.Wis. 2007) (the “subpoena is troubling because it permits the government to peek into the reading habits of specific individuals without their prior knowledge or permission”), the court on First Amendment grounds did not require an internet book retailer to disclose the identities of customers who purchased used books from the grand jury’s target, a used book seller under investigation for tax evasion and wire and mail fraud in connection with his sale of used books through the retailer’s website.
Therefore, the motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted.
Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *15-19 (S.D.N.Y. July 1, 2008 ).
Posted in 2nd Circuit, Case Blurbs, Data Collection, Data Sources, Databases, Duty to Produce, Judge Louis L. Stanton, Privacy, S.D.N.Y, Scope of Discovery, Undue burden or cost | Tagged: Google, Viacom, YouTube | Leave a Comment »