FDCC Winter Meeting 2008. Technology and E-Commerce Section Intellectual Property Section Meeting. Friday February 29, 2008.

FDCC Winter Meeting 2008 Technology and E-Commerce Section Intellectual Property Section Meeting Friday February 29, 2008 "Evidence ESI": "Meta data, pixels & tiff s, oh my" Computers as declarants? Can hearsay rules apply? Tons of e documents flowing ; expensive without a doubt, What s the value of this stuff, if the court will keep it out? While barefoot in the Bahamas, "let us go then you and I", exploring how evidence rules apply to ESI. The Tech and E-Commerce Section presents: A tale you ll want to hear Evidence ESI As the rules we ll try to clear. Presented by Ralph Zappala and Rebecca Levy-Sachs Table of Contents EVIDENCE ESI AND THE HEARSAY RULE 2 HURDLING TOWARD THE FUTURE: NAVIGATING ELECTRONICALLY STORED INFORMATION THROUGH THE FEDERAL RULES OF EVIDENCE: LORRAINE v. MARKEL AMERICA INSURANCE CO... 6 USING DIGITAL PHOTOGRAPHS IN THE COURTROOM - CONSIDERATIONS FOR ADMISSIBILITY 14 SARA1-607324-1

EVIDENCE ESI AND THE HEARSAY RULE Ralph A. Zappala Lewis, Brisbois, Bisgaard & Smith, LLP One Sansone Street 1400 San Francisco, California 94104 zappala@lbbslaw.com I. Introduction The evidentiary rules concerning hearsay and exceptions to the hearsay rule have confounded judges and lawyers involved in American Juris Prudence for a period that has spanned three centuries. The latest challenges come with the emergence of electronically stored information. An example of how bizarre reconciling the hearsay rules of evidence with ESI can be found in an article by Bradford E. Biegon of the Legal Times (July 27, 2007). Mr. Biegon reports on a decision written by U.S. Magistrate Judge Paul Grimm. In Grimm s opinion, information he characterizes as electronically generated falls completely outside the hearsay rule. The case involved a report taken from a fax machine. The argument was made which described a computer or a fax machine as a possible declarant of electronically generated information. Grimm concluded information created by a fax machine simply could not qualify as hearsay because the rules of evidence require a hearsay declarant must be human. This reported case involving the fax machine provides an example of how information obtained during the course of discovery might enter a courtroom. One of the questions raised by the Grimm decision discussed by Mr. Biegon is whether electronically generated information may qualify as evidence at all or if it is hearsay. The following is a brief review of the challenges of electronic hearsay. II. Data Speaking A. Examples of Electronic Hearsay Websites are now targets of civil discovery. Are printouts of websites admissible? See, United States v. Jackson, 208 F.3d 633 (7 th Cir. 2000). That court held that postings were inadmissible because they were insufficiently authenticated under Federal Rule 901. To authenticate postings, the proponent of the evidence would have to establish that the person responsible for making the statements on a website and the person who posted the information in question were one in the same. The Court noted its concern for data being manipulated by skilled computer users. 2

For a case discussing judicial inquiries into the manipulation of computerized information, see, St. Clair v Johnny s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999). According to the court in the Johnny s Oyster case, the internet is inherently untrustworthy. The court reasoned that no website is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Hackers can adulterate the content of any website from any location at any time. And for this reason, the court held that the evidence from a website is inadmissible. The court in St.Clair described internet data as voodoo information. The untrustworthy nature of information printed off the website may differ in the court s view if the website concerns a party to the action. See, Perfect 10, Inc. v. Cybernet Ventures, 213 F Supp. 2d 1146 (C.D.Cal. 2002). Information printed off various websites and e-mails between the party Cybernet and third parties were deemed admissible based upon declarations claiming the printouts were either (1) true and correct copies of documents produced by Cybernet in discovery, (2) true and correct copies from Perfect 10 s website, or (3) true and correct copies of pages printed from the internet by the declarant under his direction. Id. at 1154. Are government websites to be treated differently than commercial websites? See, United States EEOC v. E.I. dupont de Nemours & Co. 2004 U.S. Dist. LEXIS 20753 (E.D.La. Oct.18, 2004). The dupont case held that a printout from the United States Census Bureau website of a table showing data regarding employment of disabled people would be admissible. B. Internet Archiving and Chat Room Logs As an aside, there is an organization known as the Internet Archive Company, a 501(c)3 non profit that operates a website www.archive.org. The organization was discussed in an opinion, Telewizja Polska USA, Inc. v. Echostar Satellite Corp. 2004 U.S. Dist. LEXIS 20845 (N.D. Ill. Oct.15, 2004). The court involved in that decision found that in the absence of any evidence suggesting the Internet Archive Company s records were unreliable, the records were deemed sufficiently authentic and admissible. Chat room logs may also be admissible provided the authenticity of the chat room logs can satisfy the requirements of the court and the rules of evidence. See, United States v. Tank 200 F.3d 627 (9 th Cir. 2000.) The Ninth Circuit deemed chat room logs admissible based on a finding that the government satisfied the foundation requirements for authenticating the logs. The court found the logs were admissible due to an adequate showing of authenticity, noting that the rule requires only that the court admit the evidence if sufficient proof has been introduced so that a reasonable juror can find in favor of authenticity or identification. Id. At 630. This case is interesting because the use of an alias in a chat room log was used to trace to a declarant, who was a defendant in a child pornography investigation. 3

C. The Mother of All ESI Hearsay, E-Mails Face it. We are all doomed to a future requiring judges and attorneys to sort out what e-mail based information is to be considered by a jury. See, United States v. Siddiqui 235 F. 3d 1318 (11 th Cir. 2000); and United States v. Safavian No. 05-0370, 2006 U.S. Dist. LEXIS 32284 (D.D.C. May 23, 2006). The court in the latter case considered whether authentication of documents, without foundation or witnesses, can occur through the testimony of an expert pursuant to Federal Rule 803(6). The court also noted that Rule 902(11) could not be used to authenticate e-mails under the Business Records Exception. The court noted that the use of the sender s full name in the e-mail address could be considered sufficient to authenticate e-mails overcoming a hearsay exception. The part that should concern trial counsel is not the court s view that e-mails may come into evidence, but that ultimately, the jury decides how much weight to give each e-mail. In the aforementioned case, the criminal defendant was left with arguing the trustworthiness of the e-mails to the jury. D. The Cousin to E-Mails, Instant Messages In the case, Lemon v. Arkansas 2006 Ark. App. LEXIS 34, an Arkansas appellate court found the admissible nature of instant messages properly authenticated through circumstantial evidence. In that case, a computer s owner that received instant messages witnessed the removal of the instant messages by a computer evidence expert and testified the instant messages had not been altered. E. The Field of Electronic Hearsay 1) Business Records Federal Rule 803(6), is a good place to start in determining whether electronic data is admissible. Two foundational facts are required: (1) the writing is made or transmitted by a person with knowledge at or near the time of the incident recorded; and (2) the records are kept in the course of regularly conducted business. See, Sea-Land Service, Inc. v. Lozen International, LLC 285 F. 3d 808, 819 (9 th Cir. 2002). The Sea-Land case involved electronic bills of lading. Central to the court s decision was the finding that business records are maintained on a computer rather than in company books. The court noted that the business record exception is applicable for the admission of any form of data compilation, provided such compilation meets the requirements of Rule 803. The second element of the rule concerning records kept in the course of regularly conducted business was also deemed met when the court determined that possession of information in electronic form in the regular course of business is no different than receiving printed forms. 4

Two other cases of note are New York v. Microsoft Corp. 2002, U.S. Dist. LEXIS (D.D.C. Apr. 12, 2002) and DirectTV, Inc. v. Murray 307 F. Supp.2d 764 (D.S.C. 2004) 2) E-Mails as Admissions Federal Rule 801(d)(2) provides that a statement is not hearsay if it is an admission offered against a party and is made by the party, adopted by the party or made by a person authorized to make the statement. In Perfect 10 v. Cybernet Ventures 213 F.Supp. 2d 1146, the court found a website printout can be an admission and form an exception to the hearsay rule. F. Public Records In the case Lester v. Natsios 290 F.Supp.2d 11 (D.D.C. 2003), the court found e- mails were public records under Federal Rules of Evidence 803(8). III. Conclusion Trial counsel needs to be aware of the challenges presented by the use of electrically stored information. As with traditional hearsay considerations, the ability to convince a court concerning the reliability of the proposed evidence in electronic form requires an analysis and understanding of how the information came into being. As can be seen by the brief review of the above-referenced cases, this requires a thorough checking of details and facts. Trial counsel needs to spend a lot of time with the persons responsible for company servers, websites, e-mails, and internet based commercial activities. Trial counsel now can expect to spend many hours staring at computer screens in search of evidence or challenges to evidence in the world of ESI. 5

HURDLING TOWARD THE FUTURE: NAVIGATING ELECTRONICALLY STORED INFORMATION THROUGH THE FEDERAL RULES OF EVIDENCE: LORRAINE v. MARKEL AMERICA INSURANCE CO. Rebecca Levy-Sachs Robinson & Cole LLP 1343 Main Street Suite 400 Sarasota, Florida 34236 rsachs@rc.com; Taylor Archambault Robinson & Cole LLP 280 Trumbull Street Hartford, Connecticut 06103 tarchambault@rc.com The Maryland District Court ( Court ) in its recent decision, Lorraine v. Markel America Insurance Co. i provides a digest of the evidentiary rules, reported decisions and commentary regarding the admissibility of electronically stored information ( ESI ). In its decision, the Court equates the Federal Rules of Evidence ( FRE or the Rules ) to hurdles that must be overcome on the path to admissibility. This paper will present the Court s guide to admissibility of ESI and highlight the ESI-specific issues identified by the Court. I. A STEP-BY-STEP GUIDE TO NAVIGATING ESI OVER THE HURDLES IMPOSED BY THE FEDERAL RULES OF EVIDENCE Markel arose out of a dispute concerning the cause and amount of damage to insureds yacht which was struck by lightning. ii The insureds filed an action against their insurance company in the United States District Court for the District of Maryland seeking to modify an arbitration award, the insurer filed a counterclaim to confirm the award, and the parties crossmoved for summary judgment. iii The motions for summary judgment centered on the issue of whether the arbitrator exceeded his authority under the arbitration agreement. iv In support of their respective motions for summary judgment, each party included e-mails as exhibits. v These exhibits were proffered as parol evidence regarding the scope of the arbitration agreement. vi The specific issue that the court addresses in its opinion is whether the e-mails have any evidentiary value. vii The court ultimately concludes that the attorneys proffering the e-mail exhibits failed to authenticate the evidence, resolve any hearsay issues, comply with the original writing rule, or demonstrate the absence of unfair prejudice. viii As such, the court denied the motions without prejudice. ix In reaching its decision to deny the parties motions, the court engages in a lengthy discussion regarding the admissibility of ESI of various forms, seeking to provide guidance to 6

the bar on the issue of admissibility of electronic records. In doing so, the Court provides a general, but lengthy, discussion of the evidentiary rules. x Because neither party made any effort to lay the foundation necessary to demonstrate admissibility of the e-mails supporting their respective motions, much of the Court s decision is arguably dicta. Simply stated, the Court could have resolved the motions before it by denying both motions for failure to provide any evidence in support of the parties claims. Nevertheless, the Court s decision is a veritable catalogue of primary and secondary authority regarding the admissibility of ESI and, as such, it may serve as a practitioner s guide to admissibility of ESI. xi In outlining the hurdles that ESI must clear to be admitted into evidence, the Court s discussion relies heavily on the FRE, advisory committee notes, other courts opinions interpreting the rules in the context of ESI, and treatises. This Court s opinion begins by explaining that [w]hether ESI is admissible into evidence is determined by a collection of evidentiary rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. xii According to the Court, the rules of evidence that a proponent must overcome whenever ESI is offered as evidence include: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804, 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, o[r]if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008; and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. xiii A. THE INTERPLAY BETWEEN RULE 104(a) AND RULE 104(b) After setting forth its outline on admissibility of ESI, the Court notes that Rule 104 governs the very process of determining the admissibility of ESI. xiv The Court then explains the intersection of Rule 104 (a) xv xvi, xvii and 104 (b). The Court points out that Rule 104 (a) concerns preliminary admissibility determinations by a judge such as whether an expert is qualified, and if so, whether his or her opinions are admissible, existence of a privilege, and whether the evidence is hearsay, and if so, if any recognized exception applies. xviii On the other hand, the Court notes that Rule 104 (b) concerns preliminary admissibility determinations by a jury, typically whether something is that which the proponent claims it to be. xix As such under Rule 104 (b), the jury, not the court, makes the factual findings that determine admissibility, [thus] the facts introduced must be admissible under the rules of evidence. xx According to the Court, an attorney s understanding of the relationship between these two parts of Rule 104 is 7

essential when seeking to admit ESI. xxi Having discussed the distinction between different rulings on admissibility, the Court starts the steeplechase through the FRE with the relevance hurdle. B. RELEVANCE The Court first explains the contours of the relevance hurdle, explaining that it is shaped by Rules 401, 402 and 105. xxii Rule 401 defines relevant evidence xxiii and Rule 402 states that evidence that is not relevant is never admissible. xxiv Meanwhile, Rule 105 recognizes restrictions on the admissibility of some relevant evidence. xxv The Court points out that a successful proponent of ESI must be aware of the existence of potential hazard of limiting its bases for asserting relevance and carefully identify[ ] each potential basis for admissibility. xxvi The Court s brief discussion of relevance appears to indicate the Court s acknowledgment that ESI does not encounter any unique problems related to the relevance hurdle. C. AUTHENTICITY After succinctly discussing the relevance hurdle, the Court dedicates a substantial amount of space to discussing the next hurdle: Authenticity. This is likely due to the fact that the Court views authentication as the hurdle that most frequently trips up attorneys offering ESI as evidence. xxvii First, the Court outlines the principal rules that shape any discussion of authenticity: Rules 901 xxviii and 902. The Court pays particular attention to the methods of authentication outlined in Rule 901(b) that courts have frequently relied upon to evaluate the authenticity of ESI. xxix Specifically, the Court focuses on Rules 901(b)(1) (testimony by person with knowledge), xxx 901(b)(3) (comparison), xxxi 901(b)(4) (distinctive characteristics), xxxii 901(b)(7) (public records), xxxiii and 901(b)(9) (description of system or process). xxxiv Turning to Rule 902, the Court observes that, [a]lthough all of the examples contained in Rule 902 could be applicable to computerized records, three in particular have been recognized by the courts.... xxxv These include Rule 902(5) (official publications), xxxvi Rule 902(7) (trade inscriptions), xxxvii and Rule 902(11) (certified domestic records of regularly conducted activity). xxxviii Although the Court recognizes that some courts require greater scrutiny when authenticating ESI as opposed to traditional documents, xxxix it is quick to note that electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues. xl On the other hand, ESI obtained from computers that process data raise authentication issues. xli In the end, the thrust of the Court s analysis -- in keeping with its generalized treatise-like approach -- is that it all depends. xlii After its general discussion of the Rules implicated by ESI evidence, the court provides a digest of proven methods of authenticating e-mail, internet website postings, text messages and chat room content, computer stored records and data, computer animation and computer simulations, and digital photographs. xliii Boiled down, the Court s message is as follows: 8

(1) E-mail: E-mail is frequently authenticated pursuant to Rules 901(b)(1), 901(b)(3), 901(b)(4), 902(7), and 902(11). xliv (2) Internet Web Postings: Postings may be authenticated pursuant to Rules 901 (b)(1), 901(b)(3), 901(b)(4), 901(b)(7), 901(b)(9) and 902(5). xlv Courts have specific concerns associated with postings, including the possibility that someone other than the sponsor of the website is responsible for the content of the postings. xlvi The Court cautions counsel attempting to authenticate postings to be prepared to address concerns such as: (a) the length of time the data was posted on the site; (b) whether others have seen it; (c) whether it remains on the site for the court to verify; (d) whether the data is of a type ordinarily posted on that site; (e) whether the owner of the site has published the same data on another site; (f) whether others have published the same data; and (g) whether the data has been republished, identifying the site as the source. xlvii (3) Text Messages & Chat Room Content: According to the Court, these types of ESI encounter similar foundational issues as website evidence; however, the Court believes that Rule 901(b)(1) and Rule 901(b)(4) are the Rules most likely to be used to authenticate this variety of ESI. xlviii In addition, the Court observes that one commentator has suggested the following requirements: (a) the person used the screen name in question (either generally or at the site in question); (b) if a face-to-face meeting with the person using the screen name was arranged, the person showed up; (c) the person identified himself in the chat; (d) the person possessed information only given to the screen name user; and (e) the hard drive of the person's computer shows use of the same screen name. xlix (4) Computer Stored Records/Data: Documents or records that are only stored electronically do not raise any computer-specific authentication issues. l However, there is a growing trend that more detail is required to authenticate electronic data. li Nevertheless, there remains a wide disparity in the requirements imposed by courts ranging from the more lenient United States v. Meienberg lii to the more demanding In Re Vee Vinhnee liii and the trend remains in the minority. liv A practitioner should be wary of the requirements in his or her particular jurisdiction, but the methods of authentication most likely appropriate for computerized records are Rules 901(b)(1), 901(b)(3), 901(b)(4), and 901(b)(9). lv (5) Computer Animation & Simulation: (a) Computer animations, the display of a sequence of computer-generated images, have been admitted 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. lvi According to the Court, computer animations have been authenticated pursuant to Rule 901(b)(1) and Rule 901(b)(3). lvii (b) Computer simulations are also frequently authenticated under Rule 901(b)(1) and Rule 901(b)(3). lviii The Court observes that Commercial Union v. Boston 9

Edison lix is the most frequently cited case regarding the authentication of computer simulations and, as such, should be consulted when seeking to admit such evidence. There, the court held that computer simulations should be treated like any other scientific test. lx (6) Digital Photographs: Citing one commentator, the Court observes that there are three types of digital photographs: original digital images, digitally converted images and digitally enhanced images. lxi The Court briefly discusses the authentication issues that arise with each category. (a) Original digital photographs may be authenticated the same way as traditional film photographs testimony of a witness familiar with the scene depicted who testifies that the photo fairly and accurately represents the scene. lxii (b) Digitally converted images require an explanation of the conversion process pursuant to Rules 901(b)(1) and 901(b)(9). lxiii (c) Digitally enhanced images may be authenticated under Rule 901(b)(9) with testimony that the enhancement process produces reliable and accurate results. lxiv The common theme across the Court s discussion of each rule and each type of ESI is that, although ESI has unique characteristics which may influence courts and practitioners analysis of the particular piece of ESI under the Rules, the Rules do not become any less applicable because the evidence is in electronic medium versus traditional forms. The Court stresses that, depending on the item the proponent seeks to admit into evidence, there may be many ways to authenticate ESI. To this end, the Court advises counsel to scrutinize every possibility because such efforts may be rewarded with a method that significantly eases the burden of authentication. lxv D. HEARSAY The next hurdle the Court discusses is the hearsay rule. lxvi In order to prevent running afoul of the hearsay rule, the Court embraces the traditional five-step analysis: (1) does the evidence constitute a statement, as defined by Rule 801 (a); (2) was the statement made by a declarant, as defined by Rule 801 (b); (3) is the statement being offered to prove the truth of its contents, as provided by Rule 801 (c); (4) is the statement excluded from the definition of hearsay by rule 801 (d); and (5) if the statement is hearsay, is it covered by one of the exceptions identified at Rules 803, 804, or 807. lxvii Next, the Court identifies hearsay issues frequently implicated by ESI. For example, when an electronically generated record is entirely the product of the functioning of a computerized system or process, such as a fax transmission report, there is no assertion 10

because no person is involved. lxviii The record, therefore, is not a statement and cannot be hearsay. lxix The Court notes that statements contained in electronic communications often are admissible under Rule 801(d)(1) or Rule 802(d)(2). lxx In an effort to avoid prolonging an already lengthy opinion and due to the fact that only a handful of the twenty-three hearsay exceptions are used in connection with ESI, the Court focuses on the five most-frequently cited exceptions: Rule 803(1) (present sense impression), lxxi Rule 803(2) (excited utterance), lxxii Rule 803(3) (then existing state of mind), lxxiii Rule 803(6) (business records), lxxiv lxxv, lxxvi and Rule 803(8) (public records). According to the Court, the exceptions for present sense impressions, excited utterances and then existing states of mind commonly apply to ESI because electronic messaging, particularly with portable electronic devices, enables and encourages people to candidly describe feelings, emotions, motives and events as they are happening. lxxvii With regard to the business record exception, the Court provides multiple illustrations of the continuum running from cases where the court was very lenient in admitting electronic business records, without demanding analysis, to those in which the court took a very demanding approach and scrupulously analyzed every element of the exception. lxxviii In addition to its digest of cases, the Court notes that, because employees use their computers for personal reasons, practitioners must pay careful attention to analyze whether the business record exemption is applicable. lxxix Further, when seeking to admit an e-mail chain, parties must be conscious of multiple levels of hearsay or the possibility that an exception may apply to some links in the chain but not others. lxxx To recap, when analyzing the admissibility of ESI for hearsay issues, practitioners should follow the traditional five-step inquiry, paying careful attention to the specific issues that ESI raises. lxxxi Counsel should be aware of what level of scrutiny his or her jurisdiction requires but, as always, should be prepared to meet the most demanding standard. lxxxii E. THE ORIGINAL WRITING RULE Next, the Court turns its discussion to the original writing rule, which requires an original or duplicate original to prove the contents of a writing or recording or photograph unless secondary evidence is deemed acceptable. lxxxiii During its discussion, the Court highlights the following rules: Rule 1001 (definitions); Rule 1002 (substantive requirement); Rule 1004 (secondary evidence); Rule 1005 (contents of public records); Rule 1006 (summaries to prove contents); and Rule 1007 (proof by deposition or testimony). lxxxiv Under the Rules, Counsel must first determine whether the rule applies at all. lxxxv If the rule does apply, they must produce an original, a duplicate original, or demonstrate that secondary evidence is allowed. lxxxvi In the course of its discussion, the Court highlights several points and issues that are particularly applicable to ESI, including the following: The definition contained in Rule 1001 includes evidence that is electronically generated and stored. lxxxvii 11

The computer screen display, the hard drive, and any printout that adequately displays the data would be considered an original pursuant to Rule 1001(3). lxxxviii A computer record that accurately reflects the contents of an original writing and was prepared contemporaneously to or near the time that the original writing was prepared may be considered an original under Rule 1001. lxxxix Rule 1004(1) is particularly applicable to electronic evidence in light of the possibility that records may be deleted, lost as a result of malfunctions, purged as a result of routine management or otherwise unavailable. xc Each of the exceptions in Rule 1004 may be applicable to posts in internet chat rooms and message boards, given their ethereal nature, allowing counsel to prove the content of a writing via means other than the original document (i.e., circumstantial evidence or without proffering the original writing). xci Voluminous production of ESI increases the utility of summaries pursuant to Rule 1006. xcii To summarize the Court s guidance, when offering ESI as evidence, practitioners should make the threshold determination of whether the original writing rule applies and then be prepared to produce an original, a duplicate, or secondary evidence of the contents. F. BALANCING PROBATIVE V. PREJUDICE Finally, the Court discusses the application of Rule 403 -- the final hurdle. xciii The Court notes that, in the context of ESI evidence, courts are particularly sensitive to prejudice in the following circumstances: (1) ESI contains offense or derogatory language likely to provoke an emotional response; (2) computer animations that could be mistaken as the actual event; (3) evidence consists of summaries of voluminous ESI; and (4) where there are concerns regarding the reliability or accuracy of the ESI. xciv II. CONCLUSION Markel provides a general road map to admissibility of ESI for practitioners. According to the court, in order to succeed in having ESI admitted into evidence, the proponent must overcome the same hurdles as when he or she seeks to admit traditional forms of evidence. The first is the ESI must be relevant. Next, the proponent must authenticate the ESI. The ESI must not be hearsay (otherwise, it must fall into an exception) and, to the extent it applies, the ESI must adhere to the best evidence rule. Finally, the ESI s probative value must not be substantially outweighed by the danger of unfair prejudice. 12

In discussing the Rules, as well as the issues other courts have found are unique to admissibility of ESI, the Court does not embrace a view that ESI should be held to either a higher standard or the same standard as traditional evidence. Rather, the Court merely acknowledges that different courts have been more or less stringent in dealing with the admissibility of ESI. Throughout its opinion, the Court does not stray far from the FRE. In fact, much of the Court s decision parrots the Rules and comments thereto. The Court s discussion is somewhat puzzling in light of the justification it provides for setting forth its comprehensive analysis of the Rules application to ESI. Specifically, the Court opined that guidance was necessary because [a]lthough cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence. The Court s justification lacks strength when considered in conjunction with its opinion. Specifically, despite the fact that the Court provides a general roadmap for admissibility of ESI, the Court does not indicate whether more stringent standards are necessary or desirable. Rather, the Court s message is that it all depends and that practitioners should be prepared to meet the most stringent standards. While the Court does not take a position regarding whether ESI should be distinguished from traditional evidence in terms of the application of the Rules, an undercurrent lurks throughout the Court s decision -- that the proponent of the evidence must be creative in the approach to establishing admissibility of ESI. The Court encourages counsel to think through the multiple dimensions to their evidence and the many ways to approach admissibility. To this end, the Court has placed at the foot of all attorneys a need to be creative in their approach to laying the proper foundation and ultimately succeeding in having the ESI admitted into evidence. 13

Using Digital Photographs in the Courtroom - Considerations for Admissibility Rebecca Levy-Sachs Robinson & Cole LLP 1343 Main Street Suite 400 Sarasota, Florida 34236 rsachs@rc.com; Taylor Archambault Robinson & Cole LLP 280 Trumbull Street Hartford, Connecticut 06103 tarchambault@rc.com The growing popularity and reliance on digital photography has given rise to new admissibility issues in the courtroom. In the civil realm, not many decisions address the admissibility of digital photographs. Criminal courts, however, have approached this issue as state and federal law enforcement agencies develop evidence-gathering protocols that are increasingly reliant on digital technology. xcv This brief article will outline the evidentiary issues and provide resources that address the subject. Advantages of Digital Photography There are many advantages to using digital photographs as opposed to traditional 35 mm film. Digital cameras produce instant images, allowing the photographer to view the images and instantaneously decide whether the photographs are adequate without the delay of waiting for the film and prints to be processed. Digital photography does not require outside developing or reproduction. Furthermore, digital photographs are easily stored, do not take up additional physical space and can be widely disseminated electronically with virtually no time delay. The Medium A digital picture is stored in the camera in a traditional computer file format with built-in file management and controls. The cameral automatically creates a self-generating audit trail with a sequence number, represented by the file extension. The encoding includes file size and file creation date. By connecting the camera to a computer with a cable, the operator can transfer or "download" the file to a directory on the computer. This preserves the file data as though it was the original. xcvi 14

No traditional "original image" is made. Unlike 35mm cameras that produce one negative, digital cameras create an electronic file from which the image can be generated. Because the image file contains a finite set of ones and zeros, exact copies of the image file can be made with no loss of image quality between generations. xcvii Manipulation of Evidence A significant feature of digital photography is both the ease and the decreased cost in altering the image. Many of the potential dangers of tampering or manipulating the photograph are also popular with 35mm film; however, fraud by conventional photograph remains relatively difficult, usually requiring technical expertise. Manipulation of digital images is far simpler; nearly anyone can produce an alteration that is difficult to detect. xcviii With some very basic software, a digitally-recorded image can easily be edited. For example, a lay person can remove a bruise or scar, a scratch on a car or a background object, or even change a license plate, the time on a clock and basic attributes of color, lightness and darkness. xcix The most egregious alterations include borrowing, cloning, removal and switching parts of a digital picture. c Traditional 35mm photographs, however, can now be subject to the same manipulation potential by simply converting a print to a digital image by scanning. A person can scan into the computer a 35mm photo print, converting the image into "pixels" (which is the same as a digitally-taken photograph) and utilize the same software as though the picture was originally taken using a digital photograph. ci Challenges to Admissibility This potential for manipulation may provide the basis for admissibility challenges; however, digital images are rarely challenged in court. One possible explanation is the legal community's general lack of awareness of the characteristics of digital images that could make them less reliable as evidence than traditional photographs. Because of the few challenges and therefore scarcity of case law on the subject, the lack of awareness of the unique evidentiary issues digital images present is perpetuated. cii Recently, the Connecticut Supreme Court undertook a comprehensive analysis of the issues related to digitally enhanced images in Connecticut v. Swinton. ciii The Swinton court's analysis and opinion outline the evidentiary challenges and pitfalls related to the admissibility of digitally enhanced images. In Swinton, the defendant challenged the admissibility of two submissions - digitally enhanced photographs of a bite-mark on the victim's body and images of the defendant's teeth superimposed upon photos of the bite mark. civ The Swinton decision provides a guideline for ensuring a proper foundation is laid when submitting digitally enhanced images. There must be testimony by a person with some degree of computer expertise, who has sufficient knowledge to be examined and cross-examined about the functioning of the software. In addition to the reliability of the evidence itself, the proponent 15

must establish the reliability of the procedures involved, as the opponent must have the opportunity to cross-examine the witness as to the methods used. cv First, the equipment used must be accepted as standard equipment in the field. Second, the operator of the equipment must be qualified to use the equipment. Third, the proponent must prove that proper procedures were followed in connection with the input and output of information. Finally, the proponent must offer evidence that the software used is a reliable program. cvi These factors address a witness' familiarity with the type of evidence and with the method used to create it, and appropriately require that the witness be acquainted with the technology involved in the computer program used to generate the evidence. These factors also ensure that the hardware and software used to generate the evidence were adequate for that purpose and that the technology was reliable. cvii Evidentiary Considerations While the advent of digitalized imagery dramatically increases the potential for manipulation of photographic evidence, the key to assure a digitalized photograph's admissibility is the testimony of a witness subject to cross-examination, not the integrity of the process by which the image was created. cviii The Federal Rules do not currently set forth requirements for the admissibility of digital photographs and therefore traditional notions of relevancy, authentication, and prejudice currently govern. cix A photo will be deemed relevant if it tends to prove or disprove a material element of the charge. cx There must be independent evidence that the image is a true and correct representation of what it purports to show. cxi The photo must be more probative than prejudicial. cxii Witness testimony limited to fair and accurate portrayal testimony, however, omits important information regarding the digital camera settings, including the compression ratio, cxiii storage medium and opportunity for manipulation. cxiv Although Fed. R. Ev. 901(b) provides examples for authentication of evidence, it does not specifically address digital images. Proponents of digital photographs in the courtroom should consider the best evidence rule. With respect to digital photographs, the original "best evidence" version of the photo is the disk drive in the camera itself, prior to being downloaded on to a computer. cxv Precautionary Steps There are certain precautionary steps to consider when relying on digital photographs for use as evidence in the courtroom (or to use to launch a challenge to digital photography). - Keep the source media intact showing the original directory with dates, files size and file names automatically generated by the digital camera. This may entail 16

keeping the original floppy or compact flash card as the "best evidence" complete with all surrounding shots. cxvi - Although it is tempting to rename the file when downloading onto the computer, it may be wiser to preserve the original file name, neatly numbered and in a sequence from the perspective of authentication and maintaining a chain of custody. cxvii - If multiple people have access to the image, make the files read-only for all but the evidence/photo lab staff. cxviii Be able to identify those who had access. cxix - If it is necessary to enhance photographs, the new image files created should be saved as new file names. The original file must not be replaced (overwritten) with a new file. cxx - Personnel who prepare the exhibits for court should be trained in digital image processing. They need to understand which images might require a special notation to show that any changes were made (contrast, enlargement) are not prejudicial. cxxi - If it is necessary to change the contrast or touch up the photo, it is a simple matter to show the original and then explain why the enhancement was necessary. For the proponent, this means a few extra steps. The opponent, should frame discovery requests to compel identification of any image manipulation and should undertake extra probing during investigation and formal discovery. cxxii - If the alteration goes to an issue at the heart of the case, a professional should be retained to make the alteration and the professional should testify when offering the exhibit. That way, a credible explanation may be presented regarding what was done, why it was done and what it means. cxxiii - In many situations, the best practice is to retain an experienced professional to take the photograph in the first place. cxxiv Finally, before agreeing pretrial to the admission of an adverse party's prints of digital images, demand a copy of the original digital image. By doing so, you can determine whether the offered print fairly portrays what the original captured. cxxv i 241 F.R.E. 534 (D. Md. 2007). ii Lorraine v. Markel America Insurance Co., 241 F.R.E. 534, 534 (D. Md. 2007). iii Id. at 534, 536. iv Id. at 536. 17

v Id. vi Id. vii Lorraine, supra, 241 F.R.D. at 537. viii Id. at 585. ix Id. x Id at 537. xi The Court opined that the guidance contained in its decision was necessary because [a]lthough cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence. Id. at 537. xii Mack, supra, 241 F.R.E. at 538. xiii Id. xiv Id. xv Fed. R. Evid. 104 (a) states, in relevant part: 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 it is not bound by the rules of evidence except those with respect to privileges. xvi Fed. R. Evid. 104 (b) provides in relevant part: Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. xvii Lorraine, supra, 241 F.R.E. at 539. xviii Id. xix Id. at 539-40. xx Id. at 540. xxi Id. Illustrating its point, the Court s decision provides in relevant part: if an e-mail is offered into evidence, the determination of whether it is authentic would be for the jury to decide under Rule 104(b), and the facts that they consider in making this determination must be admissible into evidence. In contract, if the ruling on whether the e- mail is an admission by a party opponent or a business record turns on contested facts, the admissibility of those facts will be determined by the judge under 104(a), and the Federal Rules of Evidence, except for privilege, are inapplicable. Lorraine, supra, 241 F.R.D. at 540. xxii Id. at 540-41. xxiii Fed. R. Evid. 401 provides: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. xxiv Fed. R. Evid. 402. 18

xxv Lorraine, supra, 241 F.R.E. at 541. xxvi Id. xxvii Id. at 542. xxviii Fed. R. Evid. 901 (a) states in relevant part: [t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. xxix Lorraine, supra, 241 F.R.D. at 541-54. xxx Id. at 545-46. Rule 901(b)(1) allows authentication by testimony that a matter is what it is claimed to be. In discussing Rule 901(b)(1), the Court reminds practitioners that the authenticating witness need not have personal knowledge of the making of the particular piece of evidence. Lorraine, supra, 241 F.R.D. at 545. Rather, the Court stresses the necessity that the witness provides factual specificity about the process by which the ESI is created, acquired, maintained, and preserved without alteration or change, or the process by which it is produced if it is the result of a system or process. Id. xxxi Lorraine, supra, 241 F.R.D. at 546. Rule 901(b)(3) permits authentication by [c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated. Fed. R. Evid. 901(b)(3). In its brief discussion of Rule 901(b)(3), the Court notes that at least one court has held that it is appropriate for authenticating e-mail. Lorraine, supra, 541 F.R.D. at 546. xxxii Lorraine, supra, 241 F.R.D. at 546-48. Rule 901(b)(4) allows a party to authenticate exhibits by [a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. Citing case law from multiple jurisdictions, the Court recognizes that several courts have used this Rule to authenticate ESI, including e-mail, text messages and the content of websites. Lorraine, supra, 241 F.R.D. at 546. The Court notes that "hash values" and "metadata" are two common examples of identifying marks or data contained within ESI that allow for identification under Rule 901(b)(4). Id. at 546-47. A hash value is a unique numerical identifier that can be assigned to a file, a group of files, or a portion of a file. Id. at 546. Hash values provide original ESI with distinctive characteristics that will permit their authentication under Rule 901(b)(4). Id. Metadata is another method of establishing authenticity because such information can provide information about a particular data set by describing how, when, and by whom it was collected, created, accessed, or modified. Id. at 547. xxxiii Lorraine, supra, 241 F.R.D. at 548-49. The Court observes that the advisory committee notes recognize this Rule s application to computerized public records. Specifically, the notes provide: Public records are regularly authenticated by proof of custody, without more. [Rule 901(b)(7)] extends the principle to include data stored in computers and similar methods, of which increasing use of the public records area may be expected. Fed. R. Evid. 901(b)(7) advisory committee s note. Of particular importance, the Court observes that under Rule 901(b)(7), as opposed to Rule 901(b)(9), the proponent need not show that the computer system producing the public records was reliable or the records accurate. Lorraine, supra, 241 F.R.D. at 548. xxxiv Lorraine, supra, 241 F.R.D. at 549. Similar to its discussion of Rule 901(b)(7), the Court acknowledges that the advisory committee notes to Rule 901(b)(9) indicate that it was designed to be applied to computer generated evidence. Id. xxxv Id. at 551. xxxvi Id. According to the Court, Rule 902 (5) is a valuable method of authenticating publications posted on government agency websites, particularly in light of the increasing tendency of agencies to post publications on their websites and the highly relevant nature of such publications in actions involving an agency. Id. 19

xxxvii Lorraine, supra, 241 F.R.D. at 551-52. Although the Court provides a cursory review of Rule 902 (7), it notes that one commentator has observed that [b]usiness e-mails often contain information showing the origin of the transmission and identifying the employer-company. The identification marker alone may be sufficient to authenticate an e-mail under Rule 902 (7). Id. xxxviii Id. at 552. The court discusses additional creative ways to authenticate evidence. Id. at 553. The court can take judicial notice pursuant to Rule 201 of foundational facts. Id. A party can request an opposing party to admit the genuineness of the documents, or to stipulate to the authenticity. Lorraine, supra, 241 F.R.D. at 553. In addition, any objection to authenticity could be waived. Id. xxxix Id. at 542-43. xl Id. at 543. xli Id. xlii Lorraine, supra, 241 F.R.D. at 544 (stating that there is no one size fits all approach that can be taken when authenticating electronic evidence, in part because technology changes so rapidly that it is often new to many judges ). xliii Id. at 554-63. xliv Id. at 555. xlv Id. at 556. xlvi Id. at 555. xlvii Lorraine, supra, 241 F.R.D. at 555-56. xlviii Id. at 556. xlix Id. l Id. at 557. li Id. lii 263 F.3d 1177, 1180-81 (10 th Cir. 2001) (holding that any question as to the accuracy of ESI goes to the weight of printouts of computerized data, not their admissibility). liii 336 B.R. 437 (9th Cir. BAP (Cal.),2005) (holding that with respect to ESI, the questions extend beyond the identification of the equipment and programs used to the policies and procedures for use, how access is controlled, how changes are logged, structure and implementation of backup systems and audit procedures, and other factors regarding the circumstances of preservation of the record). The In re Vee Vinhnee court adopted with modification the following eleven-step foundation proposed by one commentator: (1) the business uses a computer; (2) the computer is reliable; (3) the business has developed a procedure for inserting data; (4) the procedure has safeguards; (5) the business keeps the computer in good repair; (6) the witness caused the computer to readout certain data; (7) the witness used proper procedure to obtain the readout; (8) the computer was functioning properly at the time the readout was issued; (9) the witnesses recognizes the exhibit; (10) the witness explains how he or she recognizes it; and (11) the witness explains any unique or strange symbols or terms imbedded in the readout. Lorraine, supra, 241 F.R.D. at 558. liv Lorraine, supra, 241 F.R.D. at 558. 20

lv Id. at 559. lvi Id. lvii Id. at 560. lviii Id. at 560-61. lix 412 Mass. 545, 591 N.E.2d 165 (Mass. 1992). lx Lorraine, supra, 241 F.R.D. at 560. However, the Court also noted that computer simulations could also raise issues such as the reliability of the underlying information, erroneous data entry, the reliability of computer hardware and software, proper use of the software, the reliability of the computer s output whether by printout, graphics or transcript, safeguards concerning access, and other user errors. Id. lxi Id. at 561. lxii Id. lxiii Id. lxiv Lorraine, supra, 241 F.R.D. at 562. lxv Id. at 549, 562. lxvi Id. lxvii Id. lxviii Id. at 564. lxix Lorraine, supra, 241 F.R.D. at 564. The Court provides a string cite to several cases where ESI writings are non-assertive or not made by a person. Id. at 564-65. lxx Id. at 567-68. lxxi Id. at 569. lxxii Id. at 569-70. lxxiii Lorraine, supra, 241 F.R.D. at 570. lxxiv Id. at 570-74. lxxv Id. at 574-75. lxxvi Id. at 568-576. lxxvii Id. at 569-70. lxxviii Lorraine, supra, 241 F.R.D. at 572-74 (citing cases holding that (1) the proponent must establish that the maker, as well as every participant in an e-mail chain, was acting in the regular course of business; (2) the possibility of alteration of prior messages in an e-mail chain cannot form the basis of excluding e-mails; (3) the proponent must establish that the record retrieved from computer files was the same as the one originally entered); and (4) the proponent need not call the maker or custodian of the record to establish foundation). 21

lxxix Id. at 571. lxxx Id. at 572. lxxxi Id. at 575. lxxxii Id. at 574. lxxxiii Lorraine, supra, 241 F.R.D. at 575; see also id. at 576-583. lxxxiv Id. at 578. lxxxv Fed. R. Evid. 1002; see also Lorraine, supra, 241 F.R.D. at 578. lxxxvi Fed. R. Evid. 1002, 1004. lxxxvii Lorraine, supra, 241 F.R.D. at 577. lxxxviii Id. at 577-78. lxxxix Id. at 578. xc Id. at 579-80. xci Id. at 580. xcii Lorraine, supra, 241 F.R.D. at 581. xciii Id. at 583-85. xciv Id. at 584. xcv Christina Shaw, Admissibility of Digital Photographic Evidence: Should it be Any Different Than Traditional Photography? As viewed on http://www.ndaa-apri.org/publications/newsletters/update_volume_15_number_10_2002.html. xcvi James Keane, James, Prestidigitalization: Magic, Evidence and Ethics in Forensic Digital Photography, 25 OHIO N.U. L. REV. 585, 588 (1999). xcvii Jill Witkowski, Can Juries Really Believe What They See? New Foundational Requirements for the Authentication of Digital Images, 10 WASH. U. J. L. & POL'Y 267, 273 (2002). xcviii Crystal Garcia, Shelia Suess Kennedy and Barbara Lawrence, Picturing Powerlessness: Digital Photography, Domestic Violence, and the Fight over Victim Autonomy, 25 HAMLINE J. PUB. L. & POL'Y, I, 8 (Fall, 2003). xcix George Paul, Fabrication of Evidence: A Click Away, THE NAT'L L. J. (Feb. 21, 2000). c Keane, supra at 591. ci See generally, Connecticut vs. Swinton, 268 Conn. 781 (Conn. 2004). cii Witkowski, supra at 285-86. ciii 268 Conn. 781 (2004) 22

civ Swinton at 794-95. cv Swinton at 813-15. cvi Swinton at 814-17. cvii Swinton at 813-14. The Swinton court ultimately held that the enhanced photographs of the bite mark were properly admitted and that the digitally created superimposed images of the defendant's teeth did not meet the foundational requirements set forth above because the witness lacked technical knowledge of the software used to create the enhancements. Id. at 829-30. cviii McCormick on Evidence, 214 (5 th Ed., 2003 Pocket Part). cix See FED. R. EVID. 1001(2) defining "photographs" as including still photographs, x-ray films, video tapes, and motion pictures. Please note, this article does not address any particular state's rules addressing the admissibility of digital photographs. cx FED. R. EVID. 401. cxi FED. R. EVID. 902. cxii FED. R. EVID. 403. cxiii "Compression" is a process by which users of digital cameras can choose to store a greater number of images of lesser quality by permanently discarding some of the information originally contained in the digital image. Witkowski, supra at 270. cxiv Witkowski, supra at 283. cxv Keane, supra at 591-92. cxvi Id. cxvii Id. cxviii Steven Staggs, The Admissibility of Digital Photographs in Court, as viewed on http://www.crime-scene-investigator.net/admissibilityofdigital.html. cxix Keane, supra at 591-92. cxx Staggs, supra. cxxi Keane, supra at 591-92. See also Connecticut vs. Swinton, supra, holding that a witness must be able to testify, adequately and truthfully, as to exactly what the jury is looking at, and the defendant has a right to cross-examine the witness concerning the evidence. cxxii Keane, supra at 591-92. cxxiii David Beckman and David Hirsch, Developing Evidence: Imaging Software Can Help Your Pictures Tell the Story, 89 A.B.A. J. 62 (August, 2003). See also Swinton, supra, in which certain digitally-enhanced images were held admissible when the witness used a laptop computer and demonstrated to the jury exactly how the original bite mark photograph had been enhanced. Swinton, 268 Conn. at 800. cxxiv Id. 23

cxxv Id. 24