Post Process

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Case Blurb: Victor Stanley II; The Gang that couldn’t Spoliate Straight

Posted by rjbiii on September 14, 2010

PostProcess-Pappas = defendant and spoliating party; VSI = Plaintiff and Requesting Party Victor Stanley, Inc.

At the end of the day, this is the case of the “gang that couldn’t spoliate straight.” All in all, in addition to the attempted deletions that caused delay but no loss of evidence, there were eight discrete preservation failures: (1) Pappas’s failure to implement a litigation hold; (2) Pappas’s deletions of ESI soon after VSI filed suit; (3) Pappas’s failure to preserve his external hard drive after Plaintiff demanded preservation of ESI; (4) Pappas’s failure to preserve files and emails after Plaintiff demanded their preservation; (5) Pappas’s deletion of ESI after the Court issued its first preservation order; (6) Pappas’s continued deletion of ESI and use of programs to permanently remove files after the Court admonished the parties of their duty to preserve evidence and issued its second preservation order; (7) Pappas’s failure to preserve ESI when he replaced the CPI server; and (8) Pappas’s further use of programs to permanently delete ESI after the Court issued numerous production orders. The reader is forewarned that although organized into separate categories to facilitate comprehension of so vast a violation, many of the events described in the separate categories occurred concurrently. FN7

FN7: As will be discussed in detail later in this memorandum, when a court is evaluating what sanctions are warranted for a failure to preserve ESI, it must evaluate a number of factors including (1) whether there is a duty to preserve; (2) whether the duty has been breached; (3) the level of culpability involved in the failure to preserve; (4) the relevance of the evidence that was not preserved; and (5) the prejudice to the party seeking discovery of the ESI that was not preserved. There is something of a “Catch 22” in this process, however, because after evidence no longer exists, it often is difficult to evaluate its relevance and the prejudice associated with it. With regard to Pappas’s many acts of misconduct, the relevance and prejudice associated with some of his spoliation can be established directly, or indirectly through logical inference. As to others, the relevance and prejudice are less clear. However, his conduct still is highly relevant to his state of mind and to determining the overarching level of his culpability for all of his destructive acts. When the relevance of lost evidence cannot be proven, willful destruction of it nonetheless is relevant in evaluating the level of culpability with regard to other lost evidence that was relevant, as it tends to disprove the possibility of mistake or accident, and prove intentional misconduct. Fed. R. Evid. 404(b).

Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 at *11-13 (D. Md. Sept. 9, 2010)

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Posted in 4th Circuit, Case Blurbs, D. Md., Duty to Preserve, FRE 404(b), Magistrate Judge Paul W. Grimm, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Creative Pipe; Court describes process for maintaining attorney-client privilege

Posted by rjbiii on June 15, 2008

[I]nsuring that a privilege or protection claim is properly asserted in the first instance and maintained thereafter involves a several step process. First, pursuant to Fed.R.Civ.P. 26(b)(5), the party asserting privilege/protection must do so with particularity for each document, or category of documents, for which privilege/protection is claimed. At this first stage, it is sufficient to meet the initial burden by a properly prepared privilege log. If, after this has been done, the requesting party challenges the sufficiency of the assertion of privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis–by affidavit, deposition transcript, or other evidence– for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden. If it makes this showing, and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can either rule on the merits of the claim or order that the disputed documents be produced for in camera inspection.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *11 (D.Md. May 29, 2008 ).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., FRCP 26(b), Magistrate Judge Paul W. Grimm, Privilege Log | Tagged: , | Leave a Comment »

Case Blurb: Creative Pipe; Factors for determining the proper assertion of the attorney-client privilege

Posted by rjbiii on June 15, 2008

[I]n order for the court to determine whether the attorney-client privilege was properly asserted regarding a particular document, the court must make the following fact determinations:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *5 (D.Md. May 29, 2008 ) (omitting internal citations).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm | Tagged: , | Leave a Comment »

Case Blurb: Creative Pipe; Factors for the Intermediate Balancing Test for examining whether privilege has been waived

Posted by rjbiii on June 15, 2008

The intermediate test requires the court to balance the following factors to determine whether inadvertent production of attorney-client privileged materials waives the privilege: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) any delay in measures taken to rectify the disclosure; and (5) overriding interests in justice.

[The Producing Party]…bear[s] the burden of proving that their conduct was reasonable for purposes of assessing whether they waived attorney-client privilege…

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *5 (D.Md. May 29, 2008 ) (omitting internal citations).

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm, Waiver of Privilege | Leave a Comment »

Case Blurb: Creative Pipe; Three Judicial approaches to examining waiver of privilege

Posted by rjbiii on June 15, 2008

[C]ourts have taken three different approaches when deciding whether the inadvertent production to an adversary of attorney client privileged or work-product protected materials constitutes a waiver. Under the most lenient approach there is no waiver because there has not been a knowing and intentional relinquishment of the privilege/protection; under the most strict approach, there is a waiver because once disclosed, there can no longer be any expectation of confidentiality; and under the intermediate one, the court balances a number of factors to determine whether the producing party exercised reasonable care under the circumstances to prevent against disclosure of privileged and protected information, and if so, there is no waiver.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *4 (D.Md. May 29, 2008 )

Posted in 4th Circuit, Attorney Client Privilege, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm, Waiver of Privilege | Tagged: , | Leave a Comment »

Case Blurb: Creative Pipe; Not all keyword searches are created equal

Posted by rjbiii on June 15, 2008

While it is known that [Producing Party] and [Producing Party’s attorneys] selected the keywords, nothing is known from the affidavits provided to the court regarding their qualifications for designing a search and information retrieval strategy that could be expected to produce an effective and reliable privilege review. As will be discussed, while it is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI, all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review. Additionally, the Defendants do not assert that any sampling was done of the text searchable ESI files that were determined not to contain privileged information on the basis of the keyword search to see if the search results were reliable. Common sense suggests that even a properly designed and executed keyword search may prove to be over-inclusive or under-inclusive, resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither over-inclusive nor under-inclusive resulting in the identification of documents as privileged which are not, and non-privileged which, in fact, are. The only prudent way to test the reliability of the keyword search is to perform some appropriate sampling of the documents determined to be privileged and those determined not to be in order to arrive at a comfort level that the categories are neither over-inclusive nor under-inclusive.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D.Md. May 29, 2008 )

Posted in 4th Circuit, Best Practices, Case Blurbs, D. Md., Magistrate Judge Paul W. Grimm, Search Protocols | 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 »

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

Posted by rjbiii on September 23, 2007

“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).

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)(9), Magistrate Judge Paul W. Grimm | Leave a Comment »

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

Posted by rjbiii on September 22, 2007

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).

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