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Archive for the ‘Authentication’ Category

Case Blurb: US v. Lebowitz; Authentication of Chat Printouts

Posted by rjbiii on April 9, 2012

As to the authenticity of the chat printouts, Investigator Suber testified that [minor child] K.S. printed the chats and delivered them to her. K.S. confirmed to Investigator Suber that the messages were exactly what was on his computer. Investigator Suber testified that a section of chat messages was missing, but that the remainder appeared unaltered. In his trial testimony, K.S. confirmed Investigator Suber’s account.

In response, [Defendant] offered the testimony of Jim Persinger, a computer forensics expert. Persinger testified that K.S.’s method of producing the printouts created a possibility for alteration. However, Persinger admitted that he had no evidence of any alteration or tampering. Persinger also admitted that the substance of many of the chats was corroborated by e-mail messages and subsequent events. The district court determined that the Government had made a prima facie showing of authenticity, and refused to exclude the printouts.

U.S. v. Lebowitz, 2012 WL 1123845, 3 (C.A.11 (Ga. (C.A.11 (Ga.),2012)

Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content | Leave a Comment »

Around the Block (March 10, 2011): EU Privacy laws rankle web-site owners, and Howrey’s possible dissolution caused by E-Discovery Vendors?

Posted by rjbiii on March 10, 2011

Web Operators inside the UK are complaining that E.U. Privacy directives are putting them at a competitive disadvantage. The Government’s Information Commissioner has stated that “explicit consent” must be given by users before sites can place cookies that “track” their activities on their computers. From the Article:

The reaction [to privacy laws] from start ups has been strong and angry. Nick Halstead, CEO of U.K. start up Mediasift, behind the very popular Tweetmeme service, has been vociferous in his condemnation.

“If users are presented with a pop up every time a cookie is going to be set, they are simply going to go to sites outside of Europe that are not hampered in the same way. It will put us at a major disadvantage compared to American sites.

“On our site, if you re-tweet we set a cookie. That cookie remembers other stories you have re-tweeted. Now that should be a useful thing for users. But you could say that is tracking them.”

Mr. Halstead called on governments to tread very lightly…

See a brilliant interactive demo of what the user experience might look like here.

In the chaos now hovering at Howrey, apparently one party being blamed for the firm’s collapse is E-Discovery Vendors. The quote that got my attention:

Another challenge was the rise of third-party document-discovery specialists that could provide litigation support services at substantially lower rates, he said. Howrey, a law firm with many offices in big cities, and thus, higher costs and couldn’t compete, he added.

Perhaps the problem wasn’t competition, but scope creep on the part of the firm. Lawyers should practice law, and manage the process of e-discovery. Competing with technology firms in a technology field when it isn’t a “core business” is a bad idea. The complaint is that vendors were more efficient than was Howrey at processing data. The firm was, therefore, unable to charge above-market prices for its EDD services, and apparently, this was a vital revenue stream for them. My opinion is that the “law firm as technology vendor” model doesn’t work. Howrey is exhibit A.

Leita Walker and Joel Schroeder pen an article on how to locate and use evidence from social media sites. In, Making Your Case with Social Media, they write:

[I]t’s never too early to start poking around. As soon as counsel contemplates suing or believes their client may be sued, they should investigate their opponent’s online presence. Once litigation commences, litigants may restrict their privacy settings — or remove the sites altogether — making it much more difficult to readily access potentially game-changing evidence.

Of course, once discovery commences, lawyers can employ more formal methods of fact-gathering and move to compel that evidence if met with opposition. Interrogatories should seek to identify an opponent’s screen names and relevant social media usage. Requests for production should seek blog entries and social media posts, and requests for admission should be designed to authenticate such information. In addition, counsel should be prepared to talk about social media and its production format at a Rule 26(f) or other discovery conferences.

Finally, before offering such evidence in court, counsel should be prepared to respond to objections related to relevance, hearsay, and authentication. With regard to the latter, the threshold for admissibility is low, and can be satisfied by the testimony of a witness who has personal knowledge that the evidence is what it purports to be. In fact, courts have held that website printouts need not be authenticated by the site’s owner but can be authenticated, for example, by an attorney who testifies that she visited a particular site, recognized it as the opposing party’s, and printed what she saw on the screen. Jarritos, Inc. v. Los Jarritos (2007).

Posted in Articles, Authentication, International Issues, Privacy, Social Media Sites | Tagged: | Leave a Comment »

Case Blurb: Au Optronics Corp., Burden of Proof for Authentication is Slight

Posted by rjbiii on May 18, 2010

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.” Fed. R. Evid. 903. Authentication by circumstantial evidence, in lieu of testimony, is permissible. McQueeny v. Wilmington Trust Company, 779 F.2d 916, 928 (1985). Circumstantial evidence that may be considered includes, but is not limited to, the source of the document, its appearance, content, substance, internal pattern, distinctive characteristics, and its age. Fed. R. Evid. 901. “The burden of proof for authentication is slight. ‘All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be.'” McQueeny, 779 F.2d at 928 (citations omitted).

In this case, the Court concludes that AUO has met its burden of authenticating the documents in question…

LG Display Co., Ltd. v. Au Optronics Corp., 265 F.R.D. 189, 196 (D. Del. 2010)

Posted in 3d Circuit, Authentication, Case Blurbs, D. Del., FRE 901, Judge Joseph A. Farnan Jr. | Leave a Comment »

Case Blurb: Lebowitz; Authentication of ESI Discussed

Posted by rjbiii on May 17, 2010

The Defendant questioned the authenticity of email transcripts, “instant messages,” and “chats” due to the incompleteness and integrity of the evidence. “The requirement of authenticity . . . as a condition precedent of admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Though K.S. did not testify at the hearing, Officer Suber testified that the communications were provided to her by K.S. FN2. Also, other evidence, including recorded telephone conversations, corroborated the communications. There are obvious omissions in some of the communications. However, the Court finds that those omissions do not support excluding the communications. The omissions go to the weight rather than the admissibility of the evidence. Based upon the evidence presented at the hearing, the Court finds that Defendant has not demonstrated that the evidence should be excluded at this time. Defendant’s Motion on the Authenticity of Purported Electronic Communications is DENIED.

FN2: For purposes of the hearing, Officer Suber’s testimony was sufficient. However, before the communications will be admissible at trial, the testimony of K.S. or someone with actual knowledge about the communications will be required.

United States v. Lebowitz, 2010 U.S. Dist. LEXIS 7026 at *4-5 (N.D. Ga. Jan. 27, 2010)

Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content, email, FRE 901(a), Instant Messaging, Judge Richard W. Story, N.D. Ga., Uncategorized | Leave a Comment »

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

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:

  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.

Posted in 9th Circuit, Admissibility of ESI, Authentication, Case Blurbs, Circuit Judge J. Clifford Wallace, Databases, FRE 1006, FRE 803, Uncategorized | Leave a Comment »

CA Case Summary: Miyamoto; Trustworthiness and Database Records

Posted by rjbiii on October 2, 2009

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.

Posted in Authentication, California, Case Summary-CA, Expert Witness, State Courts | Leave a Comment »

ABA Section Journal Addresses Admissibility of Text & Instant Messages

Posted by rjbiii on March 14, 2008

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.”

Posted in Admissibility of ESI, Articles, Authentication, Chat Room Content, Data Sources, Texting, Trends | Leave a Comment »

The Challenges in Admitting Computer Records as Evidence

Posted by rjbiii on October 17, 2007

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.

Posted in Admissibility of ESI, Articles, Authentication, Magistrate Judge Paul W. Grimm | Tagged: , | Leave a Comment »

Case Blurb: Lorraine; Authenticating digital photographs

Posted by rjbiii on September 24, 2007

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).

Posted in 3d Circuit, Admissibility of ESI, Authentication, D. Md., Digital Photographs, FRE 901(b)(9), Magistrate Judge Paul W. Grimm | 1 Comment »

Case Blurb: Lorraine; Authenticating Computer Aminations and Computer Simulations

Posted by rjbiii on September 23, 2007

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).

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, Computer Animations, Computer Simulations, D. Md., Magistrate Judge Paul W. Grimm | Leave a Comment »