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Archive for September 18th, 2007

Mixing personal and business e-mail a dangerous practice

Posted by rjbiii on September 18, 2007

Personal Injury attorney Steven Klearman has posted an article on the dangers of, what he calls, “rogue email practices”:

Not too startling was the fact that the average employee sends and receives an average of 170 e-mails per day at work and that nearly a third of the respondents use their personal e-mail accounts (e.g. AOL, Yahoo mail, Hot Mail etc.) for business purposes at least twice a week. More startling is the fact that 17% of the respondents use their personal e-mail accounts for business every day.

He describes the “potential for legal liabilities” as “off the charts” because of these relatively common place practices. We have already posted about the the potential for harm to employees as well.

I have spoken to groups on subjects discussing the need to have a plan for litigation holds and data management once litigation can be “reasonably anticipated.” One of the functions of such preparations should be to minimize the growth of discoverable data sources beyond the company’s IT infrastructure. Mixing business with personal activities expands the potential data universe of discovery.

But that is countered by the fact that employees are often asked to sacrifice personal time for work, and the growth of e-commerce and online financial institutions. It is easier and quicker for an employee to pay a bill online than to take 30 minutes or more to do so in person. Greater variety in the types of data sources, and a higher level of integration of these devices into our personal life make commingling activities effortless. Drawing a line in the sand is not only difficult, but the very trends of technological progress may ultimately make it impractical.

Posted in Articles, Best Practices, Data Management, Discovery, email | Leave a Comment »

Case Blurb: Lorraine; Authenticating ESI under 901(b)(7) as public records or reports

Posted by rjbiii on September 18, 2007

[Rule 901(b)(7)] permits authentication by: Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

The commentary to Rule 901(b)(7) recognizes that it applies to computerized public records, noting that “[p]ublic records are regularly authenticated by proof of custody, without more.

[Rule 901(b)(7) ] extends the principle to include data stored in computers and similar methods, of which increasing use in the public records area may be expected.”

To use this rule the “proponent of the evidence need only show that the office from which the records were taken is the legal custodian of the records.” This may be done by:

  • “A certificate of authenticity from the public office;
  • [t]he testimony of an officer who is authorized to attest to custodianship, [or] the testimony of a witness with knowledge that the evidence is in fact from a public office authorized to keep such a record.”

Courts have recognized the appropriateness of authenticating computer stored public records under Rule 901(b)(7) as well, and observed that under this rule, unlike Rule 901(b)(9), there is no need to show that the computer system producing the public records was reliable or the records accurate.

For example, in United States v. Meienberg, the court rejected defendant’s challenge to the admissibility of a law enforcement agency’s computerized records. Defendant argued that the only way they could be authenticated was under Rule 901(b)(9), through proof that they were produced by a system or process capable of producing a reliable result. Defendant further argued that the records had not been shown to be accurate. The appellate court disagreed, holding that the records properly had been authenticated under Rule 901(b)(7), which did not require a showing of accuracy. The court noted that any question regarding the accuracy of the records went to weight rather than admissibility. 263 F.3d at 1181.

Thus, a decision to authenticate under Rule 901(b)(7), as opposed to 901(b)(9) may mean that the required foundation is much easier to prove. This underscores the importance of the point previously made, that there may be multiple ways to authenticate a particular computerized record, and careful attention to all the possibilities may reveal a method that significantly eases the burden of authentication.

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

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., FRE 901(b)(7), Magistrate Judge Paul W. Grimm | Leave a Comment »

Case Blurb: Lorraine; Authentication of ESI by distinctive characteristics

Posted by rjbiii on September 18, 2007

[Rule 901(b)(4)] is one of the most frequently used to authenticate e-mail and other electronic records. It permits exhibits to be authenticated or identified by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

  • Use of this rule often is characterized as authentication solely by “circumstantial evidence.” Trend is that courts are looker harder at ESI in terms of relevance and authenticity.
  • Courts have recognized this rule as a means to authenticate ESI, including e-mail, text messages and the content of websites.
    • (Referencing United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir.2000) (allowing the authentication of an e-mail entirely by circumstantial evidence, including the presence of the defendant’s work e-mail address, content of which the defendant was familiar with, use of the defendant’s nickname, and testimony by witnesses that the defendant spoke to them about the subjects contained in the e-mail));
    • (Referencing Safavian, 435 F.Supp.2d at 40 (same result regarding e-mail);
    • (Referencing In Re F.P., a Minor, 878 A .2d at 94 (noting that authentication could be accomplished by direct evidence, circumstantial evidence, or both, but ultimately holding that transcripts of instant messaging conversation circumstantially were authenticated based on presence of defendant’s screen name, use of defendant’s first name, and content of threatening message, which other witnesses had corroborated));
    • (Referencing Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1153-54 (C.D.Cal.2002) (admitting website postings as evidence due to circumstantial indicia of authenticity, including dates and presence of identifying web addresses)).

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

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., FRE 901(b)(4), Magistrate Judge Paul W. Grimm | Leave a Comment »