Post Process

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Archive for the ‘Magistrate Judge Paul W. Grimm’ Category

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)

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

ABA Journal Looks at Judges who are E-Discovery ‘Rock Stars’

Posted by rjbiii on July 6, 2008

The most recent edition of the ABA Journal looks at a group of Judges who have provided guidance to the nation’s courts with respect to the ever-evolving law of E-Discovery:

“The law of e-discovery has largely been driven by a handful of federal judges who realized early on [that] electronic evidence was going to be a big issue in their courtrooms,” [E-Discovery consultant Mary Mark of Fios] says. “Fortunately, some of them have tackled it aggressively and have given guidance to a lot of other courts and judges.”

When new amendments to the Fed­eral Rules of Civil Procedure for handling electronically stored information went into effect on Dec. 1, 2007, dis­covery was supposed to become easier to manage. Before the new rules were put in place, it was left up to judges to rule on how to handle digital evidence in court—a problem so thorny it often took hundreds of pages in opinions to sort it out.

But even with the new rules, many massive opinions continue to be written on the e-discovery issue. And jurists like [David] Waxse, whom Mack describes as one of the more colorful judges around, are gathering an intense following.

The article spotlights Judges Waxse, Shira Scheindlin, John Facciola, Paul Grimm and Rudi Brewster.

Posted in Articles, Discovery, Judge Rudi M. Brewster, Judge Shira A. Scheindlin, Magistrate Judge David J. Waxse, Magistrate Judge John M. Facciola, Magistrate Judge Paul W. Grimm, Trends | Tagged: , | 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 »

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 »