Tuesday, November 25, 2008

2008-11-24 Digital Evidence Held Not Authenticated and Inadmissible Under Vinhnee Test

The Bankruptcy Court of the Central District of California issued a decision in October following the Ninth Circuit's approach in Vinhnee approach to digital evidence authentication. It bears repeating that in order to have evidence considered by a jury (or a judge, in Bankruptcy court) it must first be authenticated in accordance with Federal Rules of Evidence Rule 901. The Bankruptcy Court in In re Vargas, --- B.R. ----, 2008 WL 4864986 (Bkrtcy.C.D.Cal. 2008) sets forth what must be demonstrated by a party seeking to have its digital evidence admitted.

"The basic elements for the introduction of business records under the hearsay exception for records of regularly conducted activity all apply to records maintained electronically.

1. The business uses a computer.

2. The computer is reliable.
3. The business has developed a procedure for inserting data into the computer.
4. The procedure has built-in safeguards to ensure accuracy and identify errors.
5. The business keeps the computer in a good state of repair.
6. The witness had the computer readout certain data.
7. The witness used the proper procedures to obtain the readout.
8. The computer was in working order at the time the witness obtained the readout.
9. The witness recognizes the exhibit as the readout.
10. The witness explains how he or she recognizes the readout.
11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

The Vargas Court recognizes that Vinhnee imposes a more rigorous authentication burden on those seeking to admit computer generated information into evidence:

"Under Ninth Circuit law, the fourth requirement subsumes details regarding the computer policy consisting of

(a) control procedures including control of access to the database,
(b) control of access to the program,

(c) recording and logging of changes,
(d) back-up practices, and
(e) audit procedures to assure the continuing integrity of the records.

[In re] Vinhnee, 336 B.R. at 446 (citing EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS § 4.03[2] (5th ed.2002)"

Friday, November 14, 2008

2008-11-14 eDiscovery Sanctions Proceeding Permit Deposition of Prior Counsel

In the November 3 decision in Bray & Gillespie Management LLC v. Lexington Ins. Co., 2008 WL 4826115 (M.D.Fla. 2008). Magistrate Judge Spaulding set a full day for what promises to be a spirited reopening of an evidentiary hearing involving a sanctions motion for discovery violations.

The ground rules set for the hearing provide some context as to what might be expected:

"The Federal Rules of Evidence will apply at the hearing" (in a footnote to this sentence, the Court added: "The Court will not accept testimony from counsel of record in a narrative fashion. Therefore, if an attorney for a party will testify, another attorney must be present to conduct the direct examination.")

"2. Conflicts, if any, in the information before the Court regarding when Reed Smith and lawyers affiliated with it has access to the Introspect database containing information sought in discovery in the present case;

3. Responsibility of counsel of record for any sanctionable conduct related to the present motions. See, e.g., Stuart I. Levin & Assocs., P.A. v. Rogers, 156 F.3d 1135, 1141 (11th Cir.1998); see also Comiskey v. JFTJ Corp., 989 F.2d 1007, 1009-10 (8th Cir.1993); Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614 (D.Colo.2007)."

The preceeding paragraph also merited its own footnote:

"At the close of the previous evidentiary hearing, counsel for Plaintiffs submitted that he should have been permitted to present evidence from previous counsel of record regarding good faith conferences among counsel, the meaning of terms in discovery responses, and other information. If counsel for Plaintiffs wish to present such evidence, or other information such as retainer agreements or time records showing the division of work between and among counsel, they may promptly seek permission to depose prior counsel, if necessary, to obtain the information and present it to the Court."

That attorneys engaging in eDiscovery may be expected to testify about the eDiscovery process (and not the merits) should come as no surprise.

Saturday, November 01, 2008

2008-11-01 Search Protocol Warfare

In the latest chapter in the discovery dispute between the parties in D'Onofrio v. SFX Sports Group, Inc.,--- F.R.D. ----, 2008 WL 4737202 (D.D.C. 2008) the efficacy of proposed search protocols have (as we have expected) now become the subject to challenge. Magistrate Judge Facciola has no problem resisting the siren song of (and short-circuited an attempt t0 to win an argument by the use) of "techno-babble:"

"Defendants have proposed a protocol which, unfortunately, is highly technical. I made it clear at the hearing that I expected the lawyers to rely upon their obviously competent IT professionals and Mr. Bond to arrive at a protocol that would satisfy those professionals who fully understand what they were doing and produce a document that was easy to understand and use. What I got was a proposed defendants' protocol that is highly restrictive and full of undefined “buzz words.”
Additionally, in one respect the defendants' protocol is incomprehensible. On the crucial question of what will occur if the search yields previously unproduced e-mails, the defendants' protocol indicates that they will be handled “according to the protocol stated in paragraph 2 herein.” Defs.' Prot ¶ 8. But, paragraph 2 says that a Clear Channel employee must be present when the Legato system is accessed and there is no protocol whatsoever in paragraph 2 that makes the reference in paragraph 8 comprehensible."

This (perhaps not so gentle) chiding of the parties by reference to their "obviously competent IT professionals" and their utter failure to arrive at a mutually satisfactory protocol that was "easy to understand and use" speaks not so much to the IT professionals, but to counsel, either for their failure to understand what their IT professionals were doing sufficient to distill it into non-tech-speak, or for their refusal to do so, perhaps in hopes that their respective arguments would win judicial points for technological complexity.

Magistrate Judge Facciola then takes matters into the Court's hands:

"Since I have gotten so little help from counsel, I will create a protocol of my own using as best I can my understanding of the limited agreement that the parties reached when plaintiff's counsel reacted to defendants' proposal."

The Court, after noting that defendant failed to implement a proper litigation hold after receiving notice that plaintiff intended to sue, then rejects defendants' attempts to limit the scope of eDiscovery search, apparently because the court found that defendants had not conducted a proper search in the first instance:

"Defendants have agreed that plaintiffs' expert may search their computer system or individual computers for electronically stored information. Defendants, however, are unfairly and irrationally limiting the scope and potential results of the search to be conducted. They are obliged to permit the plaintiffs' expert to conduct a diligent search of all potential repositories of electronically stored information that are likely to yield information that is responsive to plaintiff's discovery demands. The restrictions they would impose are inconsistent with that responsibility and I reject them."

Judge Facciola then delivers the coup de grace, giving wide search latitude to plaintiff's expert:

"The parties do not even agree on which systems or hard drives are to be searched. They both reference the Legato system, but plaintiffs also seek access to defendants' local servers in the District of Columbia and to any computers that may be recovered. The testimony I have heard convinces me that plaintiff's expert must be permitted to search any depository of electronically stored information that may contain the following electronically stored information: (1) e-mails to or from plaintiff to include e-mails in which her name appears in the “cc” or “bcc” lines; (2) e-mail in which her name is mentioned; (3) electronically stored information created by her; (4) electronically stored information sent to her, again whether sent to her directly or as one of other recipients; (5) electronically stored information in which her name appears, whether her full name or her first or last name or initials."

Operative terms: "...any repository of electronically stored information"

For those thinking that ESI search disputes are outlier events, it is submitted that the following issues will be litigated with increasing frequency.

Link to the decision: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2006cv0687-86