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Why Does Electronic Evidence Require

Special Attention?

Managing “Your” Evidence

Managing Opposing Party Evidence


Unique Properties of Electronic Data

Attorney Obligations

E-Discovery

Admissibility, Other Issues


Volume Duplicability Fragile, Yet Persistent Ease of Undetected Alteration Metadata Hardware/Software Dependent Searchability


Cost

Privilege


Acquisition

Admissibility


In Your Client’s Possession

Third-Party Sources


“Management” Begins Before The Lawsuit Is Filed

Litigation Hold Protocols

Data Retention Policies

Computer Use Policies

Incident Response Plan


Where Is “The Smoking Gun”?

Thinking Outside The Box


Acquisition

Admissibility (Weight)


Legal Process

Voluntary Production


Lorraine v. Markel


“ … research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence …

241 F.R.D. 534, E.D. Md. (2007)


“ … this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case …


Five Evidentiary Rules to Consider: Relevance Authenticity Hearsay Original Writing/Best Evidence Probative Value/Unfair Prejudice


Authenticity

“As the foregoing cases illustrate, there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed ...”


Authenticity

“ … although it may be better to be lucky than good, as the saying goes, counsel would be wise not to test their luck unnecessarily …”


Requirement of Authentication or Identification (a) General provision.

The 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.



“ … sufficient to support a finding …”



“ … sufficient to support a finding …”

Don’t set the bar too low!


As technology and the legal landscape continue to change …

Distilling concepts down to their very core becomes more important than ever


… the tip of the iceberg of persuasiveness

Meaning of authenticity may change over time, and may vary wildly from courtroom to courtroom ….

The importance of persuading the 12 members of your jury of the credibility of your evidence NEVER changes


Received from party opponent via discovery

Received from third party

Criminal cases


“Work smarter, not harder” Judicial Notice Discovery techniques

Requests for stipulations Request to admit genuineness of documents Requests to admit facts which would establish

authenticity Depositions Well-drafted interrogatories, production requests


Discovery materials not resolved pretrial

Third party materials

Evidence in criminal prosecutions


U.S. v. Siddiqui, 235 F.3d 1318 (11th Cir. 2006) Defendant’s email address identified him Witness testimony as to use of “reply

function” Content revealed author’s familiarity with

Defendant’s relevant conduct Use of Defendant’s nickname in body Defendant reiterated request made within

email during telephone conversation soon after email receipt


State v. Downin, 357 Ill.App.3d 193, 828 N.E.2d 341, 293 Ill.Dec. 371 (3rd Dist. 2005)

Absence of evidence from ISP linking Defendant to email

“ … finding of authentication … does not preclude the opponent from contesting genuineness of the writing after the basic authentication requirements are satisfied …”



“ … [proponent] need only prove a rational basis upon which the fact finder may conclude that the [email] did in fact belong to the defendant …”



Victim testimony that she met defendant via Internet

Email communication before and after in-person meeting

Same email addressed as used previously Reply responsive Reply contained information known exclusively

to victim and defendant


Other potential sources of email? Victim’s inbox Defendant’s ISP Defendant’s hard drive Third party


Air Products v. Inter-Chemical, 2005 WL196543, E.D. Pa 2005

The Court finds that Plaintiff has shown by clear and convincing evidence that some party, using the Chinanet internet service, sent SPAM emails from a computer named “inter-chemical.” Plaintiff has also shown that Defendant is located in the same province as Chinanet. Plaintiff has not shown, however, a link between Defendants and these emails. No evidence was presented that Defendants have a Chinanet account or that Defendants own a computer named “inter-chemical.”


Telewizja v. Echostar, 2004 WL 2367740, N.D. Ill. 200)

“ .. the Internet Archive is a relatively new source for archiving websites. Nevertheless, Plaintiff has presented no evidence that the Internet Archive is unreliable or biased. And Plaintiff has neither denied that the exhibit represents the contents of its website on the dates in question, nor come forward with its own evidence challenging the veracity of the exhibit.”


U.S. v. Jackson, 208 F.3d 633, 7th Circuit (Ill.)

“ .. defendant failed to show that web postings in question were posted by those organizations, as opposed to being slipped onto their web sites by defendant herself, who was skilled computer user.”


They’re Important Even If You Don’t Litigate In Federal Court


“Electronic Discovery” Since 1/1/2007

149 Reported Federal Cases 14 Reported (Combined) State Cases 0 Missouri State Cases 0 Missouri U.S. District Court Cases


“Electronic Discovery” Since 1/1/2007

238 Reported Federal Cases (+89) 30 Reported (Combined) State Cases

(+16) 0 Missouri State Cases 0 Missouri U.S. District Court Cases


“E-Discovery” Since 1/1/2007

65 Reported Federal Cases 23 Reported (Combined) State Cases 0 Missouri State Cases 1 Missouri U.S. District Court Case


“E-Discovery” Since 1/1/2007

127 Reported Federal Cases (+62) 28 Reported (Combined) State Cases

(+5) 0 Missouri State Cases 1 Missouri U.S. District Court Case


“Electronically stored information” Since 1/1/2007

582 Reported Federal Cases 39 Reported (Combined) State Cases 13 Missouri State And Federal Cases


2.6 Trillion U.S. E-mails in 2007

210 Billion Emails per Day in 2008

2 Million Emails per Second

Electronic Data Annual Growth = 60

Percent

99 Percent New Data Electronic


Early Attention

Scope

Form

Cost

Privilege


FRCP 16(b)(5)

Order may include provisions for disclosure of

discovery of electronically stored information

Order to be entered within 90 days of

appearance of defendant and 120 days of

service on defendant


FRCP 26(a)(1)(B)

Without a discovery request

Description of electronically stored information

Possession, custody or control of party

May use in support of claim or defense


FRCP 26(f)(2)

At least 21 days before FRCP 16(b) conference

Any issues relating to disclosure of ESI


FRCP 26(b)(2)A)

ESI identified as not reasonably accessible

Undue burden

Cost

Burden on producing party

Court may order upon good cause shown by

requesting party


FRCP 26(f)(2)


Any issues relating to disclosure of ESI,

including form or form in which it should be

produced


FRCP 34(b)

May specify the form or forms in which ESI is

to be produced

If not specified, production in form in which

ESI ordinarily maintained or reasonably usable

ESI production not required in more than one

form


FRCP 26(f)(4)


Any issues relating to claims of privilege or of

protection, including inclusion of any

agreement


Federal Rule Evidence 502

Inadvertent or intentional disclosure


Subject matter waiver only with

intentional disclosure

Inadvertent disclosure does not waive

privilege or work product protection

Reasonable steps to prevent disclosure

Prompt, reasonable steps to rectify error


Binding on state courts, federal court-mandated

arbitration proceedings, if initial disclosure in

federal proceeding

Governs subsequent federal proceedings after

state court initial disclosure

No effect in state court proceeding after state

court initial disclosure


Binding third parties, subsequent matters

if embodied in court order


Million Dollar Mistakes


Deter parties from engaging in spoliation; Place the risk of an erroneous judgment

on the party who wrongfully created the risk; and

Restore the prejudiced party to the same position he would have been absent the wrongful destruction.

Purpose Of SanctionsPurpose Of Sanctions


Rule 37(b)(2) Federal Rules of Civil Procedure or State Rules When a party fails to comply with a discovery

order Inherent authority of the court Rule 11 Sanctions


Provides courts wide discretion Must have a preexisting court order

before… Preservation orders/ production orders Even a request in an oral proceeding if

unequivocal notice


When rules alone do not provide courts with sufficient authority of protect their integrity and prevent abuses of the judicial process, the inherent power fills the gap.

Include fines, awards of attorneys’ fees and expenses, contempt citations, disqualifications or suspensions of counsel, adverse inferences, preclusion of evidence, and default judgment.


Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions (a) Signature. (b) Representations to Court. (c) Sanctions. (d) Inapplicability to Discovery.


Limit on court’s discretion Requires that sanctions be related to the

particular claim. See e.g., Serra Chevrolet, Inc. v GMC, 446 F.3d

1137 (11th Cir. 2006) Striking affirmative defenses sanction

inappropriate b/c “there was absolutely no nexus between the documents . . .”


The Spoliation Inference Attorney Argument Fee Shifting & Monetary Penalties Exclusion of Evidence Default/Dismissal Loss of Attorney Client Privilege & Work

Product Protections


Can also be for late production. Residential Funding Corp. v. DeGeorge

Financial Corp., 306 F.3d 99 (2d Cir. 2002).

“ . . .so too can intentional or grossly negligent acts that hinder discovery support such an inference, even if those acts are not ultimately responsible for the unavailability of the evidence . . . “

Not Just For Destruction!Not Just For Destruction!


Attorneys may be permitted to prove the facts of the party’s nonretention.

Then permitted to argue that the destroyed evidence would have provided inferences in support of their claim or defenses.

Nearly an adverse inference instruction.


A court may preclude any testimony regarding an issue so as not to confer an unfair advantage on the spoliator.

Bad faith is not required but you must show that destruction prejudiced the non-spoliating party

The Destructive Expert


The most severe penalty. Due to the severity court performs

rigorous analysis of the circumstances giving rise to and resulting from the destruction of evidence before imposing this sanction.

Sanction of last resort.


Default or dismissal is only appropriate if there is a showing of willfulness, bad faith, or fault on the part of the sanctioned party.

The level of fault must reflect:extraordinarily poor judgment, gross negligence, or a flagrant disregard of the duty to preserve evidence

Requires clear and convincing showing


Application of the crime/fraud exception to the privilege and doctrine protections.

Rambus, Inc. v. Infineon Technologies AG, 222 F.R.D. 280 (E.D. Va. 2004) Party communicated with counsel re:

spoliating evidence Implementation of a document retention

policy at the same time that it was contemplating litigation against certain manufacturers


FRCP 37(f)

Sanctions not authorized for failure to provide

ESI lost due to routine, good-faith operation of

electronic information system

“Exceptional circumstances” caveat


U.S. District Court E.D. Missouri

Competitors/Former Employees Sued

Use of Computing Equipment

Use of Confidential Information


Motion for Sanctions

Data Removed

Data Scrubbing Application Used


Finding of Intentional Conduct

Disregard for Judicial Process

Prejudice to Plaintiff


Default Judgment Entered

Costs

Attorney’s Fees

Computer Expert’s Fees

2007 U.S. Dist Lexis

74886


Bad Faith Required

10th Circuit – Henning v. Union Pacific, 530 F.3d 1206

(Okla. 2008)

5th Circuit – Russell v. University of Texas, 234

Fed.Appx. 195 (Tex. 2005)

11th Circuit – Bashir v. AMTRAK, 119 F.3d 929 (Fla.

1997)

Less Culpable Intent Supports Spoliation

Finding


Bad Faith Not Required

4th Circuit – Vodusek v. Bayliner Marine Corp.,

71 F.3d 148 (Md. 1995)

9th Circuit – Glover v. BIC Corp., 6 F.3d 1318

(Ore. 1993)


It’s Not Just Your Client’s Problem


Rule 1.1 Competence Rule 1.3 DiligenceRule 1.6 ConfidentialityRule 3.2 Expediting LitigationRule 3.3 Candor Toward The TribunalRule 3.4 Fairness To Opposing Party And

Counsel


Rule 1.1 Competence A lawyer shall provide competent representation to

a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.


“Am I Committing Malpractice by Not Considering Electronic Data in My Cases?”

Michelle C.S. Lange, Law Practice Today, ABA Practice Management Section, July 2004


“virtually all cases” involve the discovery of electronic data –

Hon. Shira Scheindlin, writing in Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004)


“The lawyer’s duty in comparison to the client’s is more demanding than before. Now a lawyer must take affirmative action to make sure that the client understands in detail what documents might become relevant in an action, and where such documents might be located ...”

David K. Isom, Esq.

Salt Lake City, UT


Competence – Rule 1.1

Diligence – Rule 1.3

Confidentiality of Information – Rule 1.6


False Statement of Fact or Law to Tribunal - Rule 3.3(a)(1)

Remedy Client’s Fraudulent Conduct Related to the Proceeding – Rule 3.3(b)

Reasonable Efforts to Expedite Litigation – Rule 3.2

Unlawfully Obstruct Access to Evidence – Rule 3.4(a)

Falsify Evidence – Rule 3.4(b)Disobey an Obligation – Rule 3.4(c)Make Frivolous Request – Rule 3.4(d)Fail to Make Reasonable Inquiry – Rule 3.4(d)


Patent infringement lawsuit

Request for emails regarding Qualcomm’s

participation in industry working group

Participation denied, existence of emails

denied


46,000 relevant emails withheld

Jury verdict in favor of Broadcom

Post-verdict referral to magistrate judge


“Qualcomm intentionally withheld tens of

thousands of decisive documents from its

opponent in an effort to win this case and

gain a strategic business advantage over

Broadcom. …


Qualcomm could not have achieved this goal

without some type of assistance or deliberate

ignorance from its retained attorneys.

Accordingly, the Court concludes it must

sanction both Qualcomm and some of its

retained attorneys. 5

Qualcomm v. Broadcom, 2008 Dist. LEXIS 911, S.D. Cal. 2008


Attorneys’ fees and related costs - $9.2

million

Post-judgment interest - $8.5 million

Sanctions against in-house and outside

counsel

Referral to state disciplinary authority


Phoenix Four, Inc. v. Strategic Resources

Corp., 2006 U.S. Dist. Lexis 32211,

S.D.N.Y.


Lawsuit alleging fraud, fiduciary breach

Electronic documents sought

Defendant corporation no longer in existence

Responsive data found at successor business

Adverse inference sanction denied, monetary

sanctions granted


It appears that Mound Cotton never

undertook the more methodical survey of

the SRC Defendants' sources of

information


Had Mound Cotton been diligent, it might

have asked -as it should have - what had

happened to the computers SRC used at

Carnegie Hall Towers.


Mound Cotton simply accepted the defendants' representation that, because SRC was no longer in operation, there were no computers or electronic collections to search.


Further, Mound Cotton's obligation under Zubulake

V extends to an inquiry as to whether

information was stored on that server and, had

the defendants been unable to answer that

question, directing that a technician

examine the server..


Police Shooting Case

Evidence Preservation Letters

Sheriff’s Office Laptops

E-mails

Other Evidence


GC Forwarded Letters to “Key Employees”

No Notice to Other Employees

No Preservation Instructions to IT

No Email Archiving System

No Policy Preventing Email Deletion


SCSO’s in-house counsel, Lane, failed to ensure that evidence

be preserved. “It is not sufficient to notify employees of a

litigation hold and expect that the [employee] will then retain

and produce all relevant information. Counsel must take

affirmative steps to monitor compliance so that all sources of

discoverable information are identified and searched [and in

this case, preserved].” Zubulake, 229 F.R.D. at 432.


Nothing of the sort was done in this case. In

fact, Lane professed not to have ever read the

Federal Rules of Civil Procedure to ascertain on

even a rudimentary level what his and his

client’s obligations were in this regard, and, not

surprisingly, nothing was done in this regard.


The Court finds appropriate the imposition of fees and

costs against Mr. Lane in light of his complete failure to

fulfill his duty, both in his official capacity as General

Counsel for the SCSO and as initial counsel for all

Defendants in this case, to take affirmative steps to

monitor compliance so that all relevant, discoverable

information is identified, retained and produced


Joint and Several Liability

Approximately $300,000

U.S. District Court, M.D. Fla., 9/28/09

Case No.: 6:08-cv-00066-Orl-35DAB


Rule 1.1 Competence A lawyer shall provide competent representation to

a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

(Identical to Missouri Rule 4-1.1)


Rule 1.3 DiligenceA lawyer shall act with reasonable diligence and

promptness in representing a client.



Rule 1.6 Confidentiality Of Information(a) A lawyer shall not reveal information relating to the

representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).


Rule 1.6 Confidentiality Of Information (cont’d.)(b) A lawyer may reveal information relating to the

representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;


Rule 1.6 Confidentiality Of Information (cont’d.) (4) to secure legal advice about the lawyer's

compliance with these Rules;(5) to establish a claim or defense on behalf of the

lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.


Rule 3.2 Expediting LitigationA lawyer shall make reasonable efforts to

expedite litigation consistent with the interests of the client.



Rule 3.3 Candor Toward The Tribunal(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a

tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or


Rule 3.3 Candor Toward The Tribunal (cont’d.)(b) A lawyer who represents a client in an

adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal..


Rule 3.3 Candor Toward The Tribunal(a) A lawyer shall not knowingly: (cont’d.)(3) offer evidence that the lawyer knows to be

false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.


Rule 3.3 Candor Toward The Tribunal (cont’d.) (c) The duties stated in paragraphs (a) and (b)

continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.



Rule 3.4 Fairness To Opposing Party And CounselA lawyer shall not:(a) unlawfully obstruct another party' s access to

evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;


Rule 3.4 Fairness To Opposing Party And Counsel (cont’d.)

A lawyer shall not:(d) in pretrial procedure, make a frivolous discovery request

or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or


Rule 3.4 Fairness To Opposing Party And Counsel (cont’d.)

A lawyer shall not: (f) request a person other than a client to refrain from

voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.



It Might Be Too Late Already


May pre-date commencement of litigation

Requires knowledge of computing

architecture

Requires knowledge of computing practices


EDD/Data Preservation as “Incident”

Other Incidents

Meeting Enterprise Needs


Involves IT, Operational, Legal

Fixes Responsibility for Decision-Making


Litigation Hold Protocol

Computer Use Policy


Metadata – U.S. v. Zerjav, 2009 U.S. Dist. LEXIS 60113, E.D. Mo. 2009

While the Parties may exchange metadata by agreement, the Court has no intention of requiring any party, in any case, to produce metadata without showing that other means of obtaining the discoverable material failed.


Production of Media – Huang v. Gateway, 2008 U.S. Dist. LEXIS 49780, E.D. Mo. 2008

Request denied absent “showing of need”


Craig J. ChvalThe Chval Law Group, P.C.3610 Buttonwood Drive, Suite 236Columbia, MO [email protected]

the chval law group, p.c. digital lawyers for today’s digital world

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