It was only a matter of time...

I knew it was only a matter of time before I saw a lawyer crash and burn seeking admission of electronic evidence.  Then, I saw it twice. 

The first time, in Federal court last week, the evidence was a spreadsheet of filenames and their metadata.  The file had been hashed, so it would be quick and easy to authenticate.  But the offer was an ugly printout, badly word wrapped and awkwardly straddling many pages. 

When the court asked, "Any objection?," the somewhat sheepish reply was, "Yes, your honor, we've never seen this before."  and, strictly speaking, that was true.  They'd only seen the native file and its rows and columns neatly spread across their LCDs.  They conceded it was doubtlessly the same information furnished in native format, but they simply couldn't confirm that from the mish mash presented on paper.  To their credit, they offered to withdraw the objection if counsel making the offer would represent that the printout and the evidence produced were one-and-the same, but the court asked the offering attorney to submit the source data.  "Don't you have a disk?," the judge asked. 

Now, it was the offering attorney's turn to feel sheepish.  "No, we received it by e-mail."  I could see the wheels in his head turning.  The data was the subject of a hard wrought stipulation between experts, and he'd let his guy go.  I'm sure he was wondering who could prove it up, and I started thinking I was going to be called as an adverse witness.  Ultimately, it came down to a good faith belief that the offering party wasn't pulling a fast one, and the objection was withdrawn.  But, a key piece of evidence nearly bit the dust.

This week, in state court, it happened again.  I was on the stand testifying as the neutral examiner.  Plaintiff's counsel showed me copies of corporate minutes and asked if I'd ever seen them before.  I looked at them, saw they were signed and had to say, "No."  There was that deer-in-headlights look again.  In my forensic examination, I'd only come across the source word processing files.  No one had signed those...yet.  They hadn't printed the evidence I could authenticate.  Once again, the other side let it slide.  But, can we always rely on an accomodating opponent?  No, I didn't think so.

The lesson: When offering ESI in a form other than as produced--printout, TIFF, transcript or whatever--you'd best furnish the converted form to the other side and afford them an adequate opportunity to compare the two.  The other side is no more obliged to accept your printout of a spreadsheet on faith than to accept an uncertified transcript of an audio recording.

Craig Ball

Comments

[George Socha]

Craig,

I had a similar experience recently. I was being deposed as an expert witness. The plaintiff's attorney placed a printout of an Excel spreadsheet in front of me and asked whether I had seen it before. My response was that I was familiar with the electronic copy of the spreadsheet but that I had not previously seen the paper copy, which probably was at least 80 pages long. He then wanted to question me about specific portions of the spreadsheet. I replied, as I had to, that if all I had to work from was the paper copy then we would be a very long time getting through his line of questioning. In short order he abandoned that line of questioning entirely; to pursue it was just too cumbersome.

Now, if he just started with an electronic copy of the file...

George Socha

[John Tredennick]

I had a chance to speak about whether Daubert applied to EDD issues last year at the Glasser EDD conferences. If doing some research I came across a classic case on the topic called In Re Vinhnee (9th Cir. 2003).

In essence, some poor associate smuck was trying to win a default verdict by offering up American Express statements to prove debt. The Court literally tossed out the case because the lawyer hadn't prepared to authenticate the record.

The court held that you can't prove debt using computer generated duplicates without a sponsoring witness who can show they meet business record requirements.

The court went on to demand evidence to prove the procedures used to generate the statement and even suggested that such evidence would be presumed unreliable absent "vigorous authentication."

I think most lawyers are uncomfortable with the underlying technology and are often ill prepared to authenticate any type of evidence. Most often exhibits are stipulated in advance so you don't get much practice working the proper steps.

The lesson? Maybe you shouldn't stiplulate to that electronic document offered by the opposition. Maybe it won't get in.

[Michael Arkfeld]

In addition, let us not forget the Best Evidence Rule which could be easily applied here, since the "paper" ESI is not the same as the "electronic" ESI.

Excerpt from, Arkfeld on Electronic Discovery and Evidence, § 8.11(d), Metadata and Best Evidence Issues(2nd. Ed.).

"In later proceedings, the court in Armstrong v. Executive Office of the President, Office of Admin., 1 F.3d 1274, 1283, 1285 (D.C. Cir. 1993), held:

[T]he mere existence of the paper printouts does not affect the record status of the electronic materials unless the paper versions include all significant material contained in the electronic records. Otherwise, the two documents cannot accurately be termed “copies” - identical twins - but are, at most, “kissing cousins.” Since the record shows that the two versions of the documents may frequently be only cousins - perhaps distant ones at that - the electronic documents retain their status as federal records after the creation of the paper print-outs . . . Our refusal to agree with the government that electronic records are merely “extra copies” of the paper versions amounts to far more than judicial nitpicking. Without the missing information, the paper print-outs - akin to traditional memoranda with the “to” and “from” cut off and even the “received” stamp pruned away - are dismembered documents indeed.