Electronic Evidence Law and Practice

by Rice, Paul R.

• ISBN13: 9781604420845
• ISBN10: 1604420847
• Edition: 2nd
• Format: Paperback
• Copyright: 2009-06-16
• Publisher: American Bar Association

Summary

Electronic Evidence: Law and Practice explores the range of problems encountered with electronic communications from discovery to trial, and offers practical solutions to both existing and potential problems. Particular emphasis is given to the unique problems evolving around the way in which parties are asserting the attorney-client privilege and judges are applying it to e-mail communications.

Table of Contents

Foreword	p. ix
Acknowledgments	p. xiii
Dedication	p. xv
Introduction	p. xvii
Discovery of Electronic Evidence	p. 1
The Evolution of E-discovery	p. 3
The Rules of E-discovery	p. 11
Electronically Stored Information Is Discoverable	p. 12
Parties Must Give Early Attention to E-discovery	p. 16
Initial Disclosures	p. 17
Conference of the Parties	p. 21
Discovery Planning Conference	p. 23
Two Tiers of Discoverable Information-Data That Is Not Reasonably Accessible	p. 28
Approaches to Cost Allocation	p. 37
Another Approach to Cost Allocation	p. 46
Sampling as a Factor in Cost Allocation	p. 46
Cost Allocation in Practice	p. 47
Privilege and the Discovery of Electronically Stored Information	p. 49
Written Discovery	p. 53
Testing and Sampling	p. 53
Form of Production	p. 53
Rule 33(d)-Interrogatories	p. 56
Subpoenas	p. 56
Sanctions and the Spoliation "Safe Harbor"	p. 57
The Practical Side of E-discovery	p. 59
Counsel Must Acquire a Working Understanding of Potentially Relevant ESI	p. 59
Build an E-discovery Team	p. 61
Understand and Improve Information Technology Architecture	p. 62
Develop a Preservation Process	p. 63
Developing a Retention Plan	p. 73
Issuing Instructions to Custodians to Preserve Potentially Relevant Records	p. 75
Design and Implement E-discovery Guidelines	p. 76
Identify a Preferred Vendor Network	p. 76
Consider Acquiring or Licensing Appropriate Tools	p. 77
Spoliation	p. 79
Overview	p. 80
The Basics	p. 86
When Does the Duty to Preserve Arise?	p. 89
Does the Client's Obligation to Preserve Create Duties for Legal Counsel?	p. 101
What Must Be Retained and Preserved?	p. 106
Privileged Materials	p. 116
Duration of the Duty to Preserve	p. 118
Prejudice to Discovering Party	p. 120
Is Bad Faith Required?	p. 133
Consequences of Spoliation	p. 153
Spoliation Is an Implied Admission by Conduct	p. 168
Logical Inference Instructions	p. 172
The Strange Spoliation Presumption	p. 172
Authority for Penalizing Destruction	p. 176
Burden of Persuasion	p. 179
Choice of Law Question	p. 180
Proving the Claim of Spoliation-You're Not Bound By the Rules of Evidence	p. 180
Evidence of Spoliation-Evidence of One's Conduct to Prove the Truth of Its Implied Message-Is It Hearsay?	p. 181
Spoliation and the Attorney-Client Privilege	p. 182
Standard of Appellate Review	p. 183
Computers and the Internet Expand Every Possibility	p. 183
Do Not Delete Records or Destroy Equipment	p. 186
Save the Hard Drives	p. 188
Don't Forget Personal Digital Assistants and Jump Drives	p. 188
Informal Encouragement to Others to Preserve Data	p. 189
Confidentiality and the Attorney-Client Privilege	p. 191
The Attorney-Client Privilege and Its Elements	p. 193
History of the Confidentiality Requirement	p. 195
Evolution of the Confidentiality Requirement	p. 198
Ever-Expanding Circle	p. 198
Ignoring Confidentiality	p. 201
Stolen documents	p. 201
Judicially compelled disclosures	p. 203
The unauthorized agent exception	p. 206
Inadvertent disclosures-the "oops" rule	p. 207
Disclosures under protective orders or with reservations	p. 210
Confidentiality Must Be Maintained and Documented-The Increasing Problem of Outside Agents Functioning as Employees	p. 215
E-mail-An Extension of Existing Services and Technology	p. 221
From Face-to-Face Communications to Letters	p. 221
From Letters to Telephones	p. 221
From Telephones to Computers	p. 222
Employees' Personal Expectation of Confidentiality in E-mail Communications	p. 224
Data Behind Electronic Evidence-Metadata	p. 234
Electronic Presentations	p. 236
Measures to Preserve Confidentiality?	p. 239
Asserting Attorney-Client Privilege for E-mails: The Practical Details, a Growing Concern	p. 243
Expanding the Role of In-House Counsel-Jeopardizing the Applicability of the Privilege	p. 244
Complicating the Distinction Between Communications and Information	p. 248
How Is the Document Described in a Privilege Log?	p. 252
Are Operating Assumptions About the Purpose of Communications Appropriate Based on the Individuals to Whom They Have Been Disseminated?	p. 258
When business and legal communications can be separated	p. 261
When business and legal advice are inextricably intertwined	p. 264
Spoliation and the Crime/Fraud Exception to the Attorney-Client Privilege	p. 289
Work Product Immunity Vis-à-Vis E-evidence	p. 291
Best Evidence/Original Writing Rule	p. 297
The Basics	p. 298
E-Evidence and the Original Writing Rule	p. 303
The Added Complexity of Summaries of Voluminous Materials	p. 307
The Hearsay Dimensions of Summaries	p. 308
Non-hearsay Argument	p. 309
Residual Exception Solution	p. 310
Insurmountable Hearsay Problems Created by Summaries of Voluminous Materials from the Internet	p. 311
The Evidentiary Status of Summaries under the Voluminous Writings Exception to the Original Writing Rule	p. 312
Presumptions	p. 315
The Basics	p. 317
Common Law Presumptions That Can Be Relevant to Authenticating E-commerce and E-mail	p. 323
Receipt of Mailed Letters	p. 323
Authority to Transact Business	p. 325
Authority to Use an Instrumentality	p. 325
Responsibility for Damage or Loss	p. 326
Authentication of E-commerce-Problems with Presumptions under the Federal Rules of Evidence	p. 326
Authentication	p. 333
The Basics	p. 335
Methods of Authentication	p. 339
Self-identification	p. 348
Self-identification by the Sender: Establishing That a Letter Was Actually Written by the Person Named as Author	p. 348
Self-identification by the Recipient: Establishing That a Message Was Received by the Fact That It Was Sent to That Individual's Address and He Responded to It	p. 350
Content	p. 352
Extrinsic Circumstances	p. 354
Authenticating Digital Photographs	p. 357
The Key Is the Chain of Custody	p. 360
Desirable Enhancement Versus Unacceptable Manipulation	p. 362
Authenticate the Computer Program Too	p. 367
The Internet Complication	p. 367
A Spoliation Problem	p. 368
Authentication of Web Page Postings from the Internet	p. 369
Relaxation of Authentication Requirements	p. 374
Self-authentication and the Internet	p. 376
Public Document Under Seal	p. 381
Business Solicitations and Postings	p. 382
Government Postings	p. 384
Newspapers and Periodicals	p. 385
Limits of Self-authentication	p. 385
Authenticating with Technology	p. 386
Data Trails	p. 386
Electronic Signatures	p. 387
Public Key Infrastructure	p. 390
Biometric Authentication	p. 391
Authentication of Computer Animations, Models, and Simulations	p. 391
Authentication of Authenticating Technology	p. 393
Other Issues Relating to Authentication of E-evidence	p. 395
Chain of Custody	p. 395
Expanded Pretrial Discovery May Justify a Lesser Foundation	p. 399
Admissibility and Weight: Two Bites at the Same Apple	p. 400
A Reality Check	p. 400
Hearsay	p. 401
The Basics	p. 403
Two Truths of Hearsay	p. 404
Hearsay Admissible Through Exceptions	p. 409
Multiple Levels of Hearsay	p. 410
Writings Are Like Another Person Speaking, Repeating the Out-of-Court Declarations of the Author	p. 412
Why Is It Relevant?	p. 414
Mechanically Produced Statements Are Not Hearsay	p. 415
Evidence from the Internet	p. 417
Nonhearsay from the Internet	p. 417
Hearsay from the Internet	p. 421
Admissible Hearsay under Applicable Exceptions	p. 422
A Reality Check on Hearsay	p. 430
The Internet as Part of Business or Government Records	p. 430
Web Pages Are Not Business Records of the Internet Service Provider (ISP)	p. 433
Government Records and Reports	p. 433
Constitutional Dimensions of Hearsay	p. 435
The Accused's Right of Confrontation	p. 436
Two-Prong Ohio v. Roberts Test	p. 438
The "Testimonial" Standard of Crawford v. Washington	p. 439
Why "Testimonial"?	p. 441
Does the "Testimonial" Label Give an Absolute Right?	p. 443
Due Process	p. 446
Due Process Before Crawford	p. 446
Excluding hearsay offered by an accused	p. 446
Excluding hearsay offered by the government	p. 447
Due Process After Crawford	p. 448
Constitutional Wild Card	p. 449
Science and Technology	p. 463
Judicial Screening Under the Common Law	p. 464
The Advent of the Frye "General Acceptance" Test	p. 465
Expanding the Scope of Frye	p. 466
Judicial Screening Under the Federal Rules of Evidence	p. 467
Out of the Fryeing Pan, Into the Fire?	p. 468
The Logic of Daubert	p. 468
Consequences for E-science and E-technology	p. 472
Judicial Notice	p. 477
The Basics	p. 478
Judicial Notice Under the Federal Rules of Evidence	p. 479
Things Not Addressed in Rule 201	p. 481
Distinguishing Judicial Notice of Adjudicative Facts/Jury Notice of Facts/Judicial Notice of Legislative Facts	p. 481
Judicial Notice and E-commerce	p. 483
Evidence from Web Pages: A Practical Assessment	p. 484
Future's Challenge	p. 491
Index	p. 495
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