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ABA Techshow

How Do You Handle e-Evidence at Trial? It Depends

Posted Mar 26, 2010 10:33 AM CDT
By Mark Hansen

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Suppose the defendant in a case you’re judging has produced a document with a certain hash value (used to index items in a database) that the plaintiff wants to use at trial. On the eve of trial, however, the defendant, having noticed the hash value on the document is different, moves to exclude it. What do you do?

Or what if you’re presiding over a trial in which the defendant’s lawyer shows the plaintiff what it says is a screen grab of a website that uses variable Web feed information she purportedly viewed, but the plaintiff says she doesn’t recognize it? And what if one lawyer tries to introduce as evidence a Web page as it purportedly existed four years ago, and his opponent objects because there is no proof of authenticity?

Those are just a few of the more than half-dozen hypotheticals a panel of e-discovery experts and audience members kicked around at an ABA Techshow program Thursday on the kinds of issues that can come up when electronically stored information is offered as evidence.

After the presentation of each hypothetical, the audience was asked for its reaction. Then the panelists, who included e-discovery experts John Barkett, a commercial litigation partner at Shook, Hardy and Bacon’s Miami office; William Kellermann, the electronic discovery manager at Wilson Sonsini Goodrich & Rosati, and U.S. District Court Judge James M. Rosenbaum of Minneapolis, weighed in with their opinions.

In the first scenario, Miami divorce lawyer Evan Marks said the logical thing to do would be to print both documents and see if they matched. Rosenbaum said that was the kind of “foolish observation” he would make. But he also said if the substantive material were accurately reproduced in the second document, he’d be inclined to let it in.

Kellermann said the example illustrates why it’s important to understand what was done to a document from the time it was produced to the time it was used at trial. And Barkett said it shows that lawyers need to think about how to get something into evidence at the start of a legal matter, not at the start of the trial.

“If it’s different, you’re going to have to document the steps you followed in order to give the judge confidence that it’s authentic,” he said.

In the second scenario, an audience member said he would allow the evidence because the variable information was not important. Rosenbaum said that generally is correct, but depends on what the lawyer is trying to prove, in which case the variable information might be relevant.

In the third scenario, Rosenbaum agreed with an audience member that the company that produced the archived website needed to vouch for its authenticity, although the rules generally don’t require a records custodian to vouch for the authenticity of a document.

Kellermann said his firm has several certified computer examiners on staff who will capture an archived website and make a record of what they did.

In fact, in many of the hypotheticals, panelists and audience members agreed the answers were fact-specific. In other words, it depends.

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