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Archive for September 21st, 2007

Thinking inside the box: Datakos Blawg takes on e-mail retention

Posted by rjbiii on September 21, 2007

Although acknowledging that there exist no perfect solutions, the blogger behind Datakos lists items that may help to control e-mail rention issues. Many are sensible, straightforward suggestions. In describing an open source solution (which remains unnamed in the post), he describes the process for implementing litigation holds:

Through a basic, web-accessible interface, lawyers with permission-based access could run queries based on criteria derived from the legal or regulatory matter that required a hold. The query process had an audit trail. A hold, or multiple holds would attach to an email in the repository following the finalization of the query. Everything else not subject to hold had a limited shelf life in the repository and was purged periodically (e.g., every 90, 120, 180 days). The system is not perfect, but it worked.

Interestingly, this item mentions multiple holds, which was the central theme in one of the comments we’ve received on the subject of litigation holds.

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

Defense Attorney Discusses IM as Evidence

Posted by rjbiii on September 21, 2007 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.

Posted in Admissibility of ESI, Articles, Instant Messaging, Texting | Leave a Comment »

Case Blurb: Lorraine; Authenticating Internet Website Postings

Posted by rjbiii on September 21, 2007

[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).

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, D. Md., FRE 901(b)(1), FRE 901(b)(3), FRE 901(b)(4), FRE 901(b)(7), FRE 902(5), Magistrate Judge Paul W. Grimm, Websites | Leave a Comment »