OLD WINE, NEW BOTTLE: The Basics of E-Discovery & How To Effectively Authenticate ESI and Get It Admitted Chicago Volunteer Legal Services

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1 OLD WINE, NEW BOTTLE: The Basics of E-Discovery & How To Effectively Authenticate ESI and Get It Admitted Chicago Volunteer Legal Services Dara Chevlin Tarkowski Litigation Associate & E-Discovery Practice Katten Muchin Rosenman LLP 0

2 Basic Familiarity with ESI Practices & Pitfalls is Essential to Modern Practice of Law Electronically stored information is everywhere and growing, and it takes many forms, with only more on the way. ESI encompasses far more than just , documents, photos and instant messages. ESI = any information created, stored, or best utilized with computer technology of any type. Important to know how to properly handle your client s ESI. Also important to know how to get your opponent s ESI and use it effectively. Advance planning and preparation will equip you to more efficiently navigate the rules and can give you the upper hand in pursuing e-discovery. 1

3 Key Steps in the E-Discovery Process 2

4 Much Ado About Something Amendments to the federal rules established a practical and philosophical framework for the conduct of electronic discovery. Mandate earlier and more extensive involvement by counsel and clients to timely and successfully meet discovery obligations. Mishandling e-discovery matters can have serious -- even disastrous -- consequences. Failing to request the proper ESI High-profile examples include: Qualcomm v. Broadcom -- $8.5M in attorneys fees, referral of certain counsel to state bar association, and other sanctions In re Hawaiian Airlines Award of $80M in damages plus costs Coleman v. Morgan Stanley Adverse inference = $1.57B verdict 3

5 Amended Federal Rules Framework FRCP 16(b) encourages initial scheduling order to include provisions for addressing e-discovery disclosures and discovery. FRCP 26(a)(1)(B) adds ESI to the list of required initial disclosures. FRCP 26(b)(2)(B) draws distinction between accessible and inaccessible data and creates cost-shifting opportunities. FRCP 26(b)(5)(B) & 26(f)(4) authorize claw back and quick peek provisions in discovery orders. FRCP 26(f) adds e-discovery disclosure and discovery to the list of topics to be discussed at the initial planning conference. FRCP 34(b) establishes protocols regarding the form of production of ESI. Form 35 adds a description of the parties e-discovery proposals. FRCP 37(f) says ESI lost as result of routine, good faith operation of an electronic information system should not result in sanctions. FRCP 45 clarifies that records subpoenas include ESI. 4

6 What -- Me worry? 5

7 Understanding the Amended Federal Rules is Just the First Step Some federal courts have adopted even more detailed protocols or procedures regarding disclosure and discovery of ESI. 7 th Circuit E-Discovery Pilot Program Many state courts have since adopted rules similar to the federal amendments or plan to issue guidelines to state court judges. Illinois law is relatively silent on ESI and has not adopted its own version of the Federal Amendments. 6

8 E-Discovery in Illinois State Courts Supreme Court Rule 201(b)(1): The word documents, as used in these rules, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communications and all retrievable information in computer storage. Committee Comment: Amendment leaves no question but that a producing party must search its computer storage when responding to a request to produce documents pursuant to [Rule 214]. Committee Comment: Definition of documents expanded to recognize the increasing reliability on computer technology and thus obligates a party to produce on paper those relevant materials which have been stored electronically. 7

9 It pays to be prepared and can cost you if you re not. E-discovery preparedness is mostly about: Understanding your client's information technology and records management operations and environment; Being able to accurately describe and document them in required meet & confers and disclosures; and Knowing how to properly request ESI and knowing how to introduce it in court. 8

10 Determine What s There (Requesting Party) Know what to expect Determine from your client what forms of relevant ESI should be there e.g., s and other communications, documents drafted or exchanged, data, programs, applications, etc. Remember, ESI lives in many places other than central servers PDAs, cell phones, home computers, external hard drives, flash drives, etc. Initial Case Management Conferences these are great opportunities to discuss any potentially relevant ESI to the case Newest form of requested ESI SOCIAL MEDIA 9

11 Determine What s There (Requesting Party) Take full advantage of the rules governing initial disclosures Initial obligations require disclosure of discoverable ESI FRCP 16(b) -- requires disclosure of a party s inform technology architecture and environment at the very beginning of the lawsuit FRCP 26(f) ESI disclosure and discovery now on list of topics discussed at initial planning conference Judicial attitudes are changing. Perfunctory discussions are insufficient Be prepared and aggressive 10

12 Illinois Best Practices Illinois circuit judges can pursue case management conferences under Illinois Supreme Court Rule 218. Such conferences can produce orders that address disclosures or discovery of ESI and that incorporate any agreements the parties reach for asserting claims of privilege or of protection of trial-preparation material after production. 11

13 Determine if the Sources of ESI are Reasonably Accessible (Responding Party) Reasonably accessible ESI follows standard discovery rules, with the responding party bearing costs of production. And yes, Social Media ESI is reasonably accessible in most cases! Not reasonably accessible ESI is not typically searched or produced, but may need to be preserved. Burden is on responding party to show that sources of ESI are not reasonably accessible because of undue burden or cost. Requesting party can still discover inaccessible sources for good cause, although costs may be shifted. 12

14 What is Not Reasonably Accessible? Court rejected contention that production of s of officers and employees other than plaintiff (kept in LotusNotes rather than less accessible backup media) would constitute an undue burden and expense, in light of the Court s ability to apportion costs between parties. Court compared $20,000 cost of producing plaintiff s to those in Zubulake, where 5 sample disks alone cost $19,000. Parkdale America, LLC v.v Travelers Cas. And Sur. Co. 3 to 4 year-old back up tapes stored in the City Attorney s Office were not currently accessible since defendant did not have the hardware needed to access them. The cost of restoration outweighed the possible yield of relevant and probative information. Palgut v. City of Colorado Springs HYPOTHETICAL What happens if your client s phone does not retain text messages? 13

15 Preservation & Collection 14

16 Obligation to Preserve ESI (Federal) The identification of ESI as not reasonably accessible does not relieve a party of its common law or statutory duties to preserve potentially discoverable evidence. Advisory Committee Notes, FRCP 26(b)(2)(B). A party to litigation has an obligation to preserve relevant evidence. While a litigant is under no duty to keep or retain every document in its possession... it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request. Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey 15

17 Obligation to Preserve ESI (Federal) Scope of what must be preserved is often significantly beyond what might be retrieved, reviewed and/or produced in discovery. Oklahoma, ex rel. Edmonson Although Advisory Committee Notes provide for cost-shifting with respect to the production of not reasonably accessible ESI, no provision exists for shifting costs of preserving such ESI 16

18 Obligation to Preserve ESI (Illinois) General rule is that there is no obligation to preserve evidence absent some duty to do so. See Jones v. O Brien Tire & Battery Service Center, Inc., 374 Ill.App.3d 918, 924 (5 th Dist. 2007) Two-prong test as to whether duty exists (see Dardeen v. Kuehling, 213 Ill.2d 329 (2004); Boyd v. Travelers Ins. Co., 166 Ill.2d 188 (1995): Relationship Prong: Determine whether duty to preserve evidence arises by agreement, contract, statute, special circumstances, or voluntary assumption Foreseeability Prong: If so, determine whether duty extends to evidence at issue i.e., whether a reasonable person should have foreseen that the evidence was material to potential litigation. When a party fails to preserve evidence despite a duty to do so, a cause of action exists for spoliation of evidence. This is not an independent tort, but rather a type of negligence. Stoner v. Wal-Mart Stores, Inc., 2008 WL (C.D. Ill. 2008) This cause of action requires the existence of a duty, a breach of duty, causation, and damages. Dardeen, 213 Ill.2d at

19 Obligation to Preserve ESI (Illinois) Scope of the Duty: The duty arises during litigation, but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. The duty remains as long as the party in possession of the evidence should reasonably foresee that further evidence, material to a potential civil action, could be derived from the physical evidence. Breach of Duty: The evidence has been lost, altered, or destroyed. Causation: To plead causation, a plaintiff must allege sufficient facts to support a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove an underlying lawsuit. Damages: A threat of harm not yet realized is not actionable. The plaintiff must allege that a defendant s loss or destruction of the evidence caused the plaintiff to be unable to prove an otherwise valid cause of action. 18

20 When Does the Duty to Preserve Arise? As soon as a potential claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action. However, a party s duty to preserve certain evidence must be based on more than an equivocal statement of discontent. Cache La Poudre Feeds, LLC v. Land O Lakes, Inc. Propounding of demand letter held to be point in time when litigation should have become reasonably anticipated. Consolidated Aluminum Corp. v. Alcoa, Inc. Court held that duty to preserve was triggered by conversations with a supervisor one year prior to filing of EEOC complaint. Broccoli v. Echostar Communications 19

21 When Does the Duty to Preserve Arise? Given existing infringement litigation against music-downloading service, investor in service should have known litigation against it was probable, and duty to preserve arose upon receipt of warning from copyright holder that recording industry would be targeting service's investors. In re Napster, Inc. Copyright Litig. Defendant found to be on notice of potential lawsuit when counsel for plaintiff wrote letter stating it had been retained to investigate personal injury that had some connection with defendant s store. Stallings v. Bil-Jax, Inc. Mere request that a party preserve evidence found insufficient to impose a duty to do so absent some further special relationship. Andersen v. Mack Trucks, Inc., 341 Ill.App.3d 212, 217 (2 nd Dist. 2003). 20

22 Preservation Notices Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) Duty to preserve ESI commences when litigation is reasonably anticipated So, why bother to send a preservation notice? Zubulake not binding precedent reasonably anticipated is subjective opportunity to identify important ESI first step in creating a record Other factors to consider Nature of the dispute Polarizing effect/impact on pre-dispute resolution 21

23 Litigation Hold Notices Automatic or manual? Written notice to each person reasonably likely to have information or documents related to dispute Description of reason for preservation/collection Time period covered; is it on-going? Definition of types of documents to include ( , folders, shared drives, hard copies, etc.) Description of scope of documents covered Include how to instructions Attorney-client privilege designation Statement that compliance is a corporate and individual obligation Admonition regarding consequences of failing to abide by hold directive Follow-up and affirmations required Reminders are necessary Plan for computers of departing employees 22

24 Don t Take No For An Answer What if the other side claims it s gone? Dig deeper deleted data often is recoverable How? Take IT deposition Seek order permitting more invasive discovery measures e.g., inspection/imaging of servers, hard drives, etc. Move for sanctions Not all loss is sanctionable (FRCP 37(f) Safe Harbor) 23

25 Rule 37(e) Safe Harbor Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. To take advantage of the good faith exception, a party needs to act affirmatively to prevent the system from destroying or altering information, even if such destruction would occur in the regular course of business. Where a party fails to suspend it at any time, courts have found that the party cannot take advantage of Rule 37(e)'s good faith exception. Doe v. Norwalk Community College Where defendant used a wiping tool before handing computers over to bankruptcy trustee, Rule 37(e) did not apply. United States v. Krause 24

26 Rule 37(e) Safe Harbor (cont d) Rule 37(e) does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation. Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority Under 5th Circuit law of bad faith, record did not provide a basis for severe sanction as an adverse-inference instruction because there is no showing that relevant electronic communications were destroyed or that the destruction occurred in bad faith. Escobar v. City of Houston 25

27 Illinois Civil or Evidentiary Sanctions Supreme Court Rule 219(c) permits a trial court to impose sanctions, including dismissal of the cause of action, upon any party who unreasonably refuses to comply with any provisions of the discovery rules. The decision to impose a particular sanction is within the discretion of the trial court and, thus, only a clear abuse of discretion justifies reversal. Sanctions imposed in Illinois include: Dismissal with Prejudice or Default Judgment Exclusion of evidence Adverse inference instruction to the jury 26

28 Preserving and Producing ESI stored by third parties Many courts have recognized an obligation to preserve such data, reasoning that third-party documents may be in a company's "control." Steele Software Sys. Corp. v. DataQuick, 237 F.R.D. 561 (D.Md. 2006) A user typically has control over their own social media content to the extent he or she can still access it. Keir v. UnumProvident Corp., 2003 WL (S.D.N.Y.) (Found that defendant failed to communicate in a timely manner or meaningful way regarding potential preservation obligations of its third-party provider of and other computer services). In re Triton, 2002 WL (E.D. Tex.) (Held that it would have been prudent and within the spirit of the law for defendant to instruct its outside directors to preserve and produce any documents in their possession, custody or control). PML North America v. Hartford Underwriters Insurance, 2006 U.S. Dist. LEXIS (E.D. Mich.) (Court granted plaintiff's motion to compel and ordered production of a specifically identified hard drive, a thumbdrive and non-party employee's home laptop computer). 27

29 Preserving and Producing ESI stored by third parties Potential evidence must be in a party's "possession, custody, or control" for any preservation duty to attach. See Phillips v. Netblue, 2007 WL (N.D. Cal.) ("One cannot keep what one does not have.") Some courts "require production if the party has practical ability to obtain the documents from another, irrespective of his legal entitlement to the documents." See Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 636 (D. Minn. 2000) (quoting United States v. Skeddle, 176 F.R.D. 258, 261 n.5 (N.D. Ohio 1997)). Other courts require parties to produce only those documents they have a legal right to obtain. See, e.g., Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1427 (7th Cir. 1993) ("But the fact that a party could obtain a document if it tried hard enough... does not mean that the document is in its possession, custody, or control"). 28

30 Production 29

31 Form of Production (Federal Rules) Rule 34(a) allows the requesting party to specify the form(s) in which ESI will be produced. Unless specified, responding party must produce ESI in the form in which it is ordinarily maintained or a form that is reasonably usable. However, cannot produce ESI in a form less useful or searchable than the form in which it is normally maintained. Responding party need not produce in more than one form. Consider reviewing or producing in Native File Format Address form of production in FRCP 26(f) conference 30

32 Form of Production (Illinois Rules) Supreme Court Rule 214 provides that a responding party must include in its production response all retrievable information in computer storage in printed form. Committee Comment: Rule 214 requires a party to include in that party s production response all responsive information in computer storage in printed form. This change is intended to prevent parties producing information from computer storage on storage disks or in any other manner which tends to frustrate the party requesting discovery from being able to access the information produced. 31

33 Form of Production Considerations Native File Format Metadata rich Formulas in spreadsheets visible Cannot redact Quick and cheap Hard to label Resource intensive Searchable Risk of alteration Limits on use Fixed Image Format Metadata poor Preserves original appearance Easy to redact Upfront costs to TIFF Easy to label Must preserve metadata? Searchable Contents preserved Unlimited use 32

34 In re Seroquel Products Liability Litig. Failure to produce e-discovery in any manageable searchable form found to be sanctionable. Mere disclosure not enough: ESI must be readable, searchable, complete (including metadata) and proper quality assurance techniques employed. Particularly in complex litigation, there is a heightened need for the parties to confer about the format of the electronic discovery being produced. 33

35 Other Production Issues Claw back and quick-peek agreements allow parties to produce relevant documents before privilege review is conducted and assert claims of privilege afterwards Committee notes to amended FRCP 26(f) indicate that when memorialized in a court order, parties to these agreements are deemed not to have waived the privilege as among themselves But these agreements may be undesirable or of limited usefulness. Some courts have held that production of privileged materials to an opposing party under such agreements constitutes a waiver of the privilege as to third parties. Hopson v. Mayor and City Council of Baltimore 34

36 Authentication and Admissibility of ESI 35

37 Presentation/Evidentiary Issues The paperless electronic record involves a difference in the format of the record that presents more complicated variations on the authentication problem than for paper records. In re Vee Vinhee Creditor sought to prove up debt after debtor defaulted, but court refused to admit creditor s electronic business records into evidence because of a defective evidentiary foundation Creditor s records custodian could not testify in response to questions about the nature and operation of the computer system on which the records were maintained Remember that traditional rules of evidence still apply 36

38 Lorraine v. Markel American Ins. Co. After discovery, both parties moved for summary judgment to enforce a private arbitrator s award that damage to plaintiff s yacht was caused by lightning. In denying both motions, the court held that s attached to both motions and offered as parol evidence were inadmissible due to parties failure to lay the appropriate evidentiary foundation. Magistrate Judge Grimm noted that: [C]onsidering the significant costs associated with the discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. 37

39 Illinois Rules of Evidence Effective January 1, 2011, incorporate the current state of the law of evidence in Illinois whenever the Illinois General Assembly, Supreme Court or Appellate Court has clearly spoken on a principle of evidentiary law. The Rules also include certain modernizations, which the court says address noncontroversial developments in the law of evidence as reflected in the Federal Rules of Evidence. In this regard, the Illinois Rules have followed the lead of the Federal Rules of Evidence and provide for a straightforward means of authentication of ESI for purposes of admissibility. 38

40 Illinois Rules of Evidence (Cont d) Admissibility determined by the court. Ill. R. Evid. 104(a) provides: Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination, the court is not bound by the rules of evidence except those with respect to privileges. Ill. R. Evid. 801 & 802 (Hearsay) Rule 801 defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 802 states that Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule

41 Illinois Rules of Evidence (Cont d) Ill. R. Evid. 901 & 902 (Authentication) Requirement of Authentication: The requirement of authentication or identification as to a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Ill. R. Evid. 901(a). Methods of Authentication: Rule 901(b) offers a non-exhaustive list of illustrations of legitimate methods of authentication. For example: Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be. Ill. R. Evid. 901(b)(1). Self Authentication: Rule 902 also lists several categories of documents where [e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required... These documents include: domestic public documents, foreign public documents, certified copies of public records, official publications, newspapers and periodicals, trade inscriptions, acknowledged documents, commercial paper and related documents, and certified records of regularly conduced activity. Ill. R. Evid. 201 (Judicial Notice) Under Ill. R. Evid. 201, [a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. 40

42 ESI Authentication (Illinois Law) To lay a proper foundation for a document, a party must present evidence, direct or circumstantial, that shows that the document is what it purports to be Under Supreme Court Rule 216 (b), a party may serve on any other party a written request for admission of the genuineness of any relevant documents described in the request. Illinois courts authenticate writings based on appearance, contents, and substance 41

43 ESI Authentication (Illinois Law) People v. Downin, 357 Ill.App.3d 193 (3 rd Dist. 2005) -- Discussed how direct or circumstantial evidence can be used to authenticate s in various ways: Self-identification by the parties Ongoing exchange of s by the parties Unique and personal nature of the Overt acts of parties in conjunction with an Direct or circumstantial evidence establishing author and date of transmission s held to be inadmissible because there was neither direct nor circumstantial evidence of their authenticity. CCP Limited Partnership v. First Source Financial, Inc., 368 Ill.App.3d 476 (1 st Dist. 2006). 42

44 Authenticating Different Types of ESI Print outs s Text Messages and Instant Messages Voic and Digital Recordings Chat Room & Cut and Paste Transcripts Websites Social Media Facebook, MySpace (Photos, Video, Postings) 43

45 Computer Print Outs Illinois Case Illustrations Computer print outs properly admitted: Anderson v. Alberto- Culver USA, Inc., 337 Ill. App. 3d 643, 273 Ill. Dec. 404, 421, 789 N.E.2d 304, 321 (1st Dist. 2003) (trial court properly admitted computer generated flight planning documents in wrongful death case; these were records directly generated by a computer, which are generally admissible as representing the tangible result of the computer's internal operations, as opposed to printouts of computer stored records, which constitute statements placed into the computer by out-of-court declarants, which cannot be tested by cross-examination and are therefore inadmissible absent an exception to the hearsay rule) 44

46 s s were admissible and properly authenticated. People v. Downin, 357 Ill. App. 3d 193 (3rd Dist. 2005) Affirming a judgment convicting the defendant of aggravated criminal sexual abuse of a 16-year-old girl, the court held that the trial court did not abuse its discretion in admitting into evidence two printed versions of s purportedly sent by the defendant to the victim and which contained admissions of guilt, despite claims that the s were not sufficiently authenticated. The court explained that in admitting such evidence the prosecution need only prove a rational basis upon which the fact finder may conclude that the exhibit did in fact belong to the defendant. The court further explained that an message may be authenticated by direct or circumstantial evidence, that circumstantial evidence of authenticity includes such factors as appearance, contents, and substance, and that prima facie authorship of a message may include a showing that the writing contains knowledge of a matter sufficiently obscure so as to be known to only a small group of individuals. s found to be admissible. Where a medical resident claimed he was improperly terminated from an anesthesiology residency program at a state university medical school by its director, in Fenje v. Feld, 301 F. Supp. 2d 781 (N.D. Ill. 2003), aff'd on other grounds, 398 F.3d 620, (7th Cir. 2005) (applying federal and Illinois law), the court ruled that two s submitted by the director which purported to be from the resident to the anesthesiology department's keeper of records, one of which was requested to be printed and provided to the director, were sufficiently authenticated so as to be admissible. The court noted that the records keeper stated in her affidavit that these were accurate copies of s she received from the resident, that the printed s showed a source address that matched that shown on the resident's letterhead that was included in other authenticated documents, and that the content of the s was consistent with other evidence. The court added that the records keeper also adequately authenticated an communication she received and replied to as between herself and another university employee. 45

47 s (Cont d) s held to be inadmissible because there was neither direct nor circumstantial evidence of their authenticity. CCP Limited Partnership v. First Source Financial, Inc., 368 Ill. App. 3d 476 (1st Dist. 2006). The Court ruled that the party had not authenticated certain s between the bank and a corporation. A bank employee swore in an affidavit: The s attached have been maintained in the ordinary course of business in [the bank's] computer system, and I assisted in retrieving them for use in this matter. A partnership official similarly swore that the s attached to the partnership's motions for summary judgment were maintained in the ordinary course of business in [the partnership's] computer system. Neither affiant said anything about his participation in the correspondence or the occasion for receipt of the . The court explained that without proper authentication no document is admissible, that an affidavit may provide the authentication needed to make a document admissible, and that to make documents admissible the proponent must present evidence to demonstrate that the document is what its proponent claims it to be. not properly authenticated: In Complete Conference Coordinators, Inc. v. Kumon North America, Inc., 394 Ill. App. 3d 105 (2d. Dist. 2009), the Second District held that the mere fact that former employee produced in discovery certain printouts of messages allegedly created or received by her was insufficient to authenticate the messages. As such, the s were deemed inadmissible in employer s opposition to former employee s motion for summary judgment in employer's action against former employee for intentional interference with a contractual relationship. 46

48 Text Messages In People v. Chromik, No , 2011 WL (3d. Dist. 2011), the Illinois Appellate Court found that the trial court properly authenticated and admitted into evidence a document which purported to be a transcription created by the principal that recounted the messages as read to him by the victim. The court noted that All acknowledged that the transcription may not have evinced, with 100% accuracy, the text messages sent from defendant to K.B. as some words were changed via the word processor's spell-check feature. Nevertheless, the dates and times contained on the document and attributed to text messages sent from defendant to the victim mirrored those identified in the phone company records. K.B. testified as to the content of the messages and defendant acknowledged the accuracy of a number of the messages as transcribed by the principal. The court explained that [t]he trial judge ensured that all knew the document was exactly what it purported to be: a transcription of the victim's reading of the text messages. The judge allowed both sides to argue over their interpretation of the messages and allowed defendant to admit evidence indicating the spell-check program on the word processor used to create the document likely changed the wording or spelling of some messages. While defendant attacks the credibility of the document's substance, bringing to light the fact that it may not have perfectly reproduced every message he sent to K.B., this does not change the fact that the trial court properly authenticated the document as being nothing more than exactly what it purported to be. Defendant did not deny sending even a single one of the purported text messages. We find no error. 47

49 Instant Messages Instant messages properly authenticated and admitted: In People v. Clevenstine, 891 N.Y.S.2d 511 (N.Y. App. Div. 2009), the defendant was convicted of various sex crimes, perpetrated against two teenage sisters. Id. at 513. Several witnesses testified as to the contents and authenticity of instant messages exchanged between defendant and one of the victims, which indicated defendant and victim had engaged in sexual activity. Id. The witnesses included: the victims; an investigator who retrieved the communications from the hard drive of the victims computer; a legal compliance officer for MySpace, the network through which the instant messages were exchanged; and defendant s wife, who first discovered the communications. Id. at 514. The witnesses testimonies were deemed sufficient to authenticate the instant message communications and, as such, the communications constituted admissible evidence. Id. 48

50 Voic s and Digital Recordings Ill. R. Evid. 901(b)(5) Voice identification states that [i]dentification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. This rule allows a witness to listen to a recording (whether a tape recording or digital recording) as a way to authenticate a voic message as being the voice of the person in question. A voic message left on a cell phone, for example, is merely a type of audio recording. Though you may be able to properly identify the voice, this alone does not authenticate the message itself as an accurate recording of what that person said. A litigant will need additional testimony (such as a third party who overheard the conversation) to lay the proper foundation for that. When properly authenticated sound recordings are admissible if they accurately portray the conversation or sounds. Such records are routinely allowed into evidence. See, e.g., People v. Griffin, 375 Ill. App. 3d 564 (1st Dist. 2007). These same standards are used when authenticating and admitting voic s or digital recordings. 49

51 Chat Rooms and Cut and Paste Documents Transcript of Online Chat Inadmissible: The Illinois Court of Appeals found that the prosecution had failed to establish a sufficient foundation for the admission of transcripts of on-line chat room conversations captured using Power Tools software by an undercover police investigator posing as a minor in an America Online (AOL) chat room. People v. Johnson, 376 Ill. App. 3d 175, 875 N.E.2d 1256 (Ill. App. Ct. 2007). The defendant, convicted of indecent solicitation of a minor, argued that the trial court erred in allowing the State to introduce the transcripts without an adequate foundation, noting that no AOL representative testified to their accuracy. The Court of Appeals noted that [i]n the case of computer generated records, a proper foundation additionally requires a showing that: standard equipment was used; the particular computer generates accurate records when used appropriately; the computer was used appropriately; and the sources of the information, the method of recording utilized, and the time of preparation indicate that the record is trustworthy and should be admitted into evidence. 875 N.E.2d at The content of a document also may be admitted through the testimony of a witness. For example, a record from a police investigation may be admissible as a past recollection recorded if the proper foundation is laid, showing, among other things, that the facts in the report have been recorded at the time of the occurrence or soon thereafter, and that the report is both truthful and accurate. Here, the State did nothing to establish a foundation for the admissibility of the chat room transcripts as evidence: the accuracy of the transcripts was never addressed; the State offered no evidence of the efficacy of AOL or Power Tools records; and it did not establish that the police investigator was a competent operator of the systems used to compile the transcripts. Accordingly, the Court concluded that the admission of the transcripts without an adequate foundation was reversible error and ordered a new trial. 50

52 Social Media Statements Made on Social Networking Site Admitted: Defendant's prideful statements on social networking website, including statement that Society labels me as an outlaw and criminal, were relevant in prosecution for the murder of two-year-old child to rebut defense theory that made defendant's character a central issue and contended that defendant's intent could only have been reckless and not criminal. Clark v. State, 915 N.E.2d 126 (Ind. 2009). Messages on social media site were admitted in error: In Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010). Computer messages on social networking Internet site were not authenticated, although foundational testimony established that the messages were sent by someone with access to account of alleged writer of messages; foundational testimony did not identify the person who actually sent the messages, whether anyone other than alleged writer could communicate from the Web page, how secure the Web page was, who could access it, and whether codes were needed for access. Social Media Profile Pages Improperly Authenticated: The Maryland Supreme Court reversed the appellate court decision and ordered a new trial for defendant due to lack of proper authentication for the printout of the MySpace page. Since the State only identified the date of birth and the picture of the girlfriend with defendant appearing on the site, someone other than the girlfriend could have created the profile and posted the threat. Griffin v. State, 2011 Md. LEXIS 226 (Md. Apr. 28, 2011). 51

53 Social Media (Cont d) Photos on MySpace.com Admissible: The Ohio courts also dealt with the admissibility of photographs posted on a social networking website and testimony about the creation of the website page in State v. Gaskins, 2007 WL (Ohio Ct. App. Aug. 13, 2007). To defend against a charge of unlawful sexual conduct with a minor, the defendant sought to introduce evidence that the complainant held herself out to the world as an eighteen-year-old on the website MySpace.com. Regarding the photographs, the Court affirmed the trial court s decision, which permitted the introduction of photographs that were posted on the complainant s MySpace.com website page, noting that the photographs were properly authenticated. The defendant had elicited testimony from a witness that the photographs accurately depicted what the complainant looked like prior to the incident in June 2005 and were relevant to how the complaint looked on the date of the incident. To evaluate the trial court s decision to prohibit questioning regarding the MySpace.com website page, the Court of Appeals mulled over two important facts the appellant-defendant had failed to prove. First, the defendant had offered no evidence that he ever saw the complainant s MySpace.com page. Second, defendant did not establish that the website was created before the date of the assault. Thus, in holding that the trial court had properly prohibited questioning regarding the website, the Court explained that whether the complainant represented herself as eighteen years old after the incident occurred was not relevant since the charge centered on the complainant s age at the time of the incident. Facebook pictures of a Mother drinking and socializing were properly admitted into evidence according to the Court of Appeals of Kentucky in an appeal from a divorce and custody order. LaLonde v. LaLonde, No CA MR, 2011 WL (Ky. Ct. App. Feb. 25, 2011). The Court held that the photos posted on the social networking site were properly authenticated by testimony of the Mother and thus, properly admitted into evidence. 52

54 Free Resources on ESI Appendix A to The Sedona Conference Commentary on ESI Evidence & Admissibility (March 2008) contains an excellent practical guide for working with ESI so that it ultimately will be admissible. The guide includes a checklist of the potential methods of authentication under FRE 901 and 902 that can be used for various types of ESI. The Commentary is available for download at cations_html?grp=wgs110 E-Discovery Blog, including case summary database: 53

55 Questions? Dara Chevlin Tarkowski Litigation Associate & National E-Discovery Practice Katten Muchin Rosenman LLP 54