Evidence Issues in E-Discovery
UNIVERSITY OF HOUSTON
SUMMER III 2010 – 5397 E-DISCOVERY
Conversations are increasing digital…
 And so is the evidence.
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Smartphones,
Message boards,
Webpages,
Voicemail, and
Text messages.
 Each of these raises issues of how this stuff gets
introduced.
Preliminary issue: where to look…
 In re David Weekley discusses the form of the request (and
not the party’s right to discover the information in
question).
 Take the time to review the documents you receive and ask
good questions at depositions – all depositions – about how
data moves within a company.
 Rule 196.3 is your friend, so use it.
A brief evidence primer…
 Rules 401, 402 – Relevancy
 Page 626.
 Does it matter?
 Rules 801 - 803 – Hearsay…
 Pages 638-643.
 Is it reliable?
A brief evidence primer…
 Rules 901, 902 – Authenticity
 Pages 645-648.
 Is it accurate?
 Rules 1001 – 1004 – Best Evidence
 Pages 648-650.
 Is it the best representation of the potential evidence?
TEX. R. CIV. P. 196.4
 Must request production of electronic data and
specify the form of production.
 Have to produce if responsive and reasonably
available in the ordinary course of business; if not,
must object (and may object to the form).
 If electronic data is not reasonably available in the
ordinary course of business and court orders
compliance, court MUST order requesting party to
pay the reasonable expenses of any extraordinary
steps required to retrieve and produce.
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Evidentiary Issues
 Admissibility
 Authentication
 Best Evidence Rule
 Expert Testimony
Admissibility Issues
 Data as a business record is generally admissible, if it
really is a business record.
 Computer presentations “assist” the trier of fact:
 Proof of HOW the event occurred (accident reconstruction)
 Demonstrating the PARTY’s point of view
 As a SUMMARY of the evidence (Rule 1006)
 Technology used to enhance the evidence – photos
or videos.
Authenticity
 FRE 901(a)
 Is the evidence sufficient to support a finding that
the matter in question is what proponent claims?
 Determining the degree of foundation required to
authenticate electronic evidence depends on the
quality and completeness of the data input, the
complexity of the computer processing, the routines
of the computer operation and the ability to test and
verify the results.
FRE 901(b)
 Methods of authentication include:
Testimony of witness with knowledge;
 Comparison by trier or expert witness;
 Distinctive characteristics and the like (e-mail address,
hash values, “reply” doctrine);
 Public records or report; and
 Process or system.
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FRE 902
 Methods by which information may be authenticated
without extrinsic evidence or sponsoring testimony.
 Three ways to authenticate e-records:
 902(5) Official publications
 902(7) Trade inscriptions
 902(11) Certified domestic records of regularly conducted
activity (authenticate business records under FRE 803(6)).
Getting e-documents admitted.
 Texas Rule of Civil Procedure 193.7:
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A party’s production of a document in response to written
discovery authenticates the document for use against that
party in any pretrial proceeding or at trial unless — within ten
days or a longer or shorter time ordered by the court, after the
producing party has actual notice that the documents will be
used — the party objects to the authenticity of the document,
or any part of it, stating the specific basis for the objection.
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Getting e-documents admitted.
 The Business Records Exception.
 Authenticity established by demonstrating that a computer
record was maintained in the ordinary course of business by
an individual with knowledge of the events recorded. In
Longoria v. Greyhound Lines, Inc., 699 S.W.2d 298, 301 (Tex.
App.—San Antonio 1985, no writ).
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No higher standard with regard to electronic information. See
Longoria v. Greyhound Lines, Inc., 699 S.W.2d 298, 303 (Tex.
App.—San Antonio 1985, no writ).
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UNITED STATES v. SALGADO
250 F. 3d 438 (6th Cir. 2001)
 "A business record must satisfy four requirements in order
to be admissible under FRE 803(6):
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1. It must have been made in the course of a regularly conducted
business activity;
2. It must have been kept in the regular course of that business;
3. The regular practice of that business must have been to have made the
memorandum; and
4. The memorandum must have been made by a person with knowledge
of the transaction or from information transmitted by a person with
knowledge."
Getting e-documents admitted.
 The business record affidavit in Rule of Evidence
902(10).
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Requires the filing of an affidavit at least fourteen days before
trial stating the information necessary to establish the
documents as business records.
This procedure has been utilized notwithstanding objections
the affidavits contain hearsay. See Fullick v. Baytown, 820
S.W.2d 943 (Tex. App.—Houston [1st Dist.] 1991, no writ).
Complying with this procedure allows a witness testifying at
trial to provide a summary of the data contained within the
larger volume of information.
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Practice Tips
 Memorialize each step of the collection and
production process to bolster reliability.
 Use every opportunity during discovery to
authenticate potential evidence.
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For pretrial disclosures under F.R.C.P. 26(a), you have 14 days
to file objections or possible waiver;
Documents produced by opposing party are presumed to be
authentic – burden shifts
Requests for Admissions
Request stipulation of authenticity from opposing counsel
Practice Tips
 Be ready to provide with enough information to
understand the technology issues as they relate to
the reliability of the evidence at hand.
 Consider case management tools that might assist in
addressing evidentiary problems concerning some of
the more complex issues (such as “dynamic” data in
a database or what is a “true and accurate copy” of
ESI).
 Keep your audience in mind.
So how do I authenticate?
E-mail?
 Witness with personal knowledge (901(b)(1))
 Expert testimony or comparison with authenticated
examples (901(b)(3))
 Certified copies of business record (902(11))
So how do I authenticate?
Website Postings
 Witness with personal knowledge (901(b)(1))
 Expert testimony (901(b)(3))
 Distinctive characteristics (901(b)(4))
 Public records (901(b)(7))
 System or process capable of proving a reliable result
(901(b)(9))
 Official publications (902(5))
So how do I authenticate?
Text Messages and Chat Rooms
 Witness with personal knowledge (901(b)(1))
 Circumstantial evidence of distinctive characteristics
(901(b)(4))
Computed Stored Records and Data
 Witness with personal knowledge (901(b)(1))
 Expert testimony (901(b)(3))
 Distinctive Characteristics (901(b)(4)
 System or process capable of proving a reliable result
(901(b)(9))
So how do I authenticate?
Computer Animations and Computer
Simulations
 Witness with personal knowledge (901(b)(1))
 Expert testimony (901(b)(3))
Digital Photographs
 Witness with personal knowledge (901(b)(1))
 System or process capable of providing reliable result
(901(b)(9))
Best Evidence
Is the evidence “original”, “duplicate”, “writing”,
“recording” (1001)?
Rule 1002 requires the original to prove the contents
of a writing, recording or photograph unless
“secondary evidence” (any evidence other than
original or duplicative) is admissible.
Best Evidence
 Duplicates are admissible as originals unless question
about authenticity or other unfairness (1003)
 Proof of the contents of writing permitted through
“secondary evidence” (1004) if:
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Non-bad faith loss/destruction of original/duplicate
Inability to subpoena original/duplicate
Original/duplicate in possession, custody, control of opposing party
“Collateral record” (i.e., not closely related to controlling issue in
case)
 Admission of summary of voluminous books, records or
documents (1006)
UNITED STATES v. BENNETT
363 F. 3d 947 (9th Cir. 2004)
 Best evidence rule applies "when a witness seeks to testify about the
contents of a writing, recording or photograph without producing the
physical item itself - particularly when the witness was not privy to the
event the contents describe."
 Officer's testimony violated the best evidence rule on two grounds.
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GPS display was a writing or recording that the GPS had compiled
about the path of the boat; therefore Officer Chandler was testifying
about the GPS's contents.
Officer never observed the boat traveling.
 The GPS itself or a printout of the data would have been the best
evidence under FRE 1001(3).
Hearsay
 Electronic information, like other written
documents, may be hearsay and is inadmissible
without applying a recognized exception to the
hearsay rule.
 Some courts have determined that e-mail messages
constitute inadmissible hearsay.
 Parties often employ the business records exception
to the hearsay rule as a means to introduce electronic
evidence during trial.
Chain of Custody
 Issues related to chain of custody also raise some
special concerns at trial for the introduction of
electronic information. Parties should be prepared
to argue chain of custody issues at trial, both
offensively and defensively, as they are likely to come
up regarding electronic information.
Expert Testimony
In Re Three Mile Island Litigation, 193 F.3d 613 (3 rd Cir.
1999)
Has the theory or technique
1. been tested;
2. been subjected to peer review and publication;
3. subjected to known or potential rate of error and
existence of standards
4. has "general acceptance" in the scientific
community?
What does this look like? How do you challenge this kind
of testimony?
Evidence Issues in E-Discovery
UNIVERSITY OF HOUSTON
SUMMER III 2010 – 5397 E-DISCOVERY