Lorraine v. Markel American Insurance also contains an extensive discussion of the most common hearsay rule exceptions that have been applied to ESI. FRE Rule 803 addresses recordings, reputation, perceptions, observations, state of mind, intent and sensation. As such, Rule 803 exceptions are often used to admit ESI into evidence.

Business Records Exception: This hearsay exception is the most frequently discussed exception with respect to ESI. The electronic record must be made in furtherance of the business’ needs, and not for the personal purposes of the individual who created it. Different circuits have applied different standards, ranging from easy to meet standards to multi-pronged tests. Because employees often use computers at work for personal reasons, the court suggests that care be exercised when evaluating whether the exception applies, especially to e-mail. The standards for admitting electronic records as business records vary by circuit, particularly with respect to “e-mail chains” where the documents often have multiple authors and are forwarded to multiple recipients.

Present Sense Impression & Excited Utterance: People are increasingly using handheld devices, such as smart phones and PDAs to record and send electronic records. Such devices allow users to record information as it occurs.

Existing State of Mind or Condition: E-mail correspondence tends to be casual and authors are often extremely candid about their thoughts, feelings and emotions in e-mail messages. However, at least one court declined to apply the exception to an e-mail summarizing a telephone conversation that took place several days earlier. That court held that the e-mail included its maker’s memory of his then existing state of mind, which is specifically excluded from this hearsay exception. New York v. Microsoft, 2002 WL 649951.

Public Records Exception: May be applied to any data compilation, including e-mails and information on government websites. Public records are considered to be more accurate than ordinary business records and most courts will apply this exception unless the party opposing their introduction meets its burden to show that the records lack trustworthiness or otherwise do not meet the definition of public records.

Market Reports and Commercial Publications Exceptions: Like public records, compilations prepared for use of a trade or profession are exempt from the hearsay rule. For example, interest rates from the Federal Reserve Board website were deemed reliable under this exception by Elliott Assoc. L.P. v. Banco de la Nacion, 194 F.R.D. 116, 121 (S.D.N.Y. 2000).

Lorraine v. Markel American Insurance explored the authentication of website postings extensively:

One commentator has observed “[i]n applying [the authentication standard] to website evidence, there are three questions that must be answered explicitly or implicitly. (1) What was actually on the website? (2) Does the exhibit or testimony accurately reflect it? (3) If so, is it attributable to the owner of the site?” The same author suggests that the following factors will influence courts in ruling whether to admit evidence of internet postings:

“The length of time the data was posted on the site; whether others report having seen it; whether it remains on the website for the court to verify; whether the data is of a type ordinarily posted on that website or websites of similar entities (e.g. financial information from corporations); whether the owner of the site has elsewhere published the same data, in whole or in part; whether others have published the same data, in whole or in part; whether the data has been republished by others who identify the source of the data as the website in question”

Counsel attempting to authenticate exhibits containing information from internet websites need to address these concerns in deciding what method of authentication to use, and the facts to include in the foundation. The authentication rules most likely to apply, singly or in combination, are 901(b)(1) (witness with personal knowledge) 901(b)(3) (expert testimony) 901(b)(4) (distinctive characteristics), 901(b)(7) (public records), 901(b)(9) (system or process capable of producing a reliable result), and 902(5) (official publications).

Lorraine at 23-24.

Computer animation and simulation technology have become an important litigation tool, allowing counsel to visually demonstrate pertinent events to a jury. Computer animation refers to the use of computer generated evidence to illustrate and explicate a witness’s testimony. Computer simulation refers to the use of data entry and scientific principles for the analysis of such data.

Computer animations and simulations are generally authenticated using the testimony of an expert witness or testimony of a witness with personal knowledge of the content to demonstrate that the animation accurately reflects the facts.

The issue of the admissibility of online chat logs often arises in the context of criminal cases involving online child enticement investigations. Like any other document, chat logs may be challenged on a variety of grounds such as hearsay, authenticity, and the best evidence rule, to name a few. The methods in which chat logs are preserved have a strong impact on Courts’ decisions with respect to the admissibility of chat logs.

Computer printouts of chat logs tend to survive evidentiary challenges. The 9th Circuit admitted third-party computer printouts of chat logs into evidence in spite of a challenge to their authenticity based on missing portions of text, stating that the printout accurately represented the chat room conversations. United States v. Tank, 200 F. 3d. 627 (9th Cir. 2000). In a similar 10th Circuit case, a defendant contended that a chat log printout lacked authenticity because it was not in the defendant’s handwriting or writing style and did not present his voice. However, the defendant identified himself by name and provided his street address during the course of his online conversation and handwritten notes found near defendants’ computer contained information provided to him by the undercover officer with whom he was chatting. Therefore, the Court found no basis to exclude the printed chat logs. United States v. Simpson, 152 F. 3d 1241 (10th Cir. 1998).

Another online enticement case, United States v. Jackson, 2007 WL 1381772 (D. Neb. May 8, 2007), addressed the admissibility of chat logs that had been cut and pasted into a Microsoft Word document. The court held that the logs were not admissible at trial. In that case, an undercover investigator imported text from a series of Yahoo chat room and instant message conversations with defendant into Word, adding editorial comments to portions of the text. At the time of trial, the Word documents were the only documentary evidence of the conversations. Defendant brought a motion in limine to exclude evidence of the online chat.

At the evidentiary hearing, the undercover investigator testified that he took great pains to preserve the conversations, but also acknowledged that it was possible to omit certain sections of the conversation through human error when highlighting the text and importing it into a Word document. A computer forensics expert testified that the only a bit-stream image of the computer hard drive would be the only way to see the conversation as it occurred between the parties. The expert proposed other more reliable methods of preserving the chat, including: a screen shot saved to the hard drive; use of the Yahoo “ypager log”; an available third-party software program for saving online chats; and the basic “print screen” and “file print” computer functions. He testified that cutting and pasting the chat into a Word document was the least reliable method to preserve the conversation and found multiple user errors in the document, including missing data and time sequence errors.

In reaching its holding that the chat logs were inadmissible on two grounds (1) they were not properly authenticated and (2) the Word document was not the best evidence of the chat logs, the court stated that the government failed to demonstrate that the document is authentic and did not make a foundational showing that the document is trustworthy. Under the Federal Rules of Evidence, computer printouts may be considered the best evidence if they accurately reflect the data. In this case, the court held that the Word document did not accurately reflect the chat log and likewise disallowed the government from using the logs to refresh the undercover investigator’s recollection at trial.

The expert testimony in United States v. Jackson provides guidelines for parties planning to introduce chat logs as well as those who wish to challenge such evidence. Courts treat chat logs as they would most other forms of documentary evidence. However, it is wise to consult with a forensics expert at the early stages of the case, before items are discarded or hard drives are wiped clean. The decisions described above suggest that simple methods such as a screen shot or computer printouts appear to be sufficiently reliable, while methods which allow for human error or alterations to the text are more likely to be excluded.

In the Lorraine case, the court excluded e-mail messages from evidence due in part to the parties’ failure to authenticate those messages, which were attached as exhibits to both parties’ motions for summary judgment. The court noted the standard for authentication under the Federal Rules of Evidence is relatively easy to meet and a proponent must simply show that an exhibit is what he or she claims it to be. While courts sometimes tend to hold ESI to a slightly higher standard than hard copy documents, a Pennsylvania court commented that authentication of ESI should be evaluated on a case-by-case basis. Although ESI, including e-mail, can raise issues of authentication, the risks of forgery are no greater in ESI than in hard copy documents. In re F.P., 878 A.2d 91, 95-96 (Pa. Super. 2005).

The Maryland judge observed that the most common means of authenticating e-mail evidence are:

I. FRE 901(b)(1): Testimony by an individual with personal knowledge;

II. FRE 901(b)(3): Expert testimony or comparison with authenticated exemplar;

III. FRE 901(b)(4): Distinctive characteristics, including circumstantial evidence, such as outside conversations about the contents of the e-mail paired with an identifying e-mail address; use of “hash values” to provide unique numerical identifiers to the documents, or analysis of metadata for evidence supporting authenticity;

IV. FRE 902(7) Trade inscriptions; and

V. FRE 902(11) Certified copies of business record.

The court warned, however, that an e-mail address identifying the sender is not sufficient, by itself, to authenticate an e-mail message. Due to the potential for unauthorized e-mail transmissions, testimony of an individual with personal knowledge of the transmission is necessary to ensure trustworthiness of the document. United States v. Siddiqui, 235 F. 3d 1318, 1322-23 (11th Cir. 2000). See also United States v. Safavian, 435 F. Supp. 2d 36,40 (D.D.C. 2006).

A Maryland magistrate judge offered the following guidance on the admissibility of Electronically Stored Information (ESI), stating five evidence rules to consider whenever ESI is offered as evidence:

(1) Is the ESI relevant under Federal Rule of Evidence 401?

(2) If relevant, is the ESI authentic under Federal Rule of Evidence 901(a)?

(3) If the ESI is offered for its substantive truth, is it hearsay under Federal Rule of Evidence 801? If so, is it covered by an exception to the hearsay rule?

(4) Is the ESI the “best evidence”?

(5) Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance?

Lorraine v. Markel American Insurance Company, 2007 WL 130073 (D. Md. May 4, 2007).

The court proceeded to evaluate admissibility of various types of ESI including e-mail, digital photographs, text messages, chatroom logs, computer animation and simulations, computer-stored data and records, and internet website postings. This series of articles will address the court’s analysis and will explore the various approaches toward the admissibility of ESI as evidence at trial and summary judgment hearings.

In California, communications between an attorney and a designated expert witness become discoverable upon designation of that expert. Generally, opposing counsel will attach a document demand to the deposition notice which includes a request for all correspondence between the expert and the designating attorney. In recent years, these requests often include a specific request for e-mail correspondence.

A Tennessee court recently addressed the issue of e-mail correspondence between attorneys and experts in Univ. of Pittsburg v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007). In that case, plaintiff’s counsel instructed expert witnesses to delete e-mail correspondence. Although the court did not grant defendant’s request for sanctions, the court held that plaintiff’s counsel acted improperly in instructing the experts to destroy the e-mails, which defendant requested several times during the course of discovery.

E-mail communication is often less formal than other types of correspondence. Mistakes can occur at the click of a button and many of us have sent an e-mail to the wrong recipient or failed to edit a crucial piece of information from the body before hitting “send.” In certain industries, experts are less familiar with e-mail and may assume that a deleted message will not come back to haunt them. A medical expert, who was less familiar with e-mail correspondence, once asked me whether an e-mail could be traced to him if he didn’t sign his name at the end of his message, not realizing that his e-mail address would easily identify him. That expert’s statement alerted me to the fact that electronic communication is still uncharted territory for some individuals. Experts may not regularly check e-mail and oftentimes servers will block e-mails with large attachments such as deposition transcripts. It is therefore essential to discuss e-mail correspondence with your potential expert witness at the inception of the retention and to remind him or her that they may be obligated to produce e-mails in response to a document demand.

An expert who is employed by the client and has participated in any litigation strategy discussions should only be designated after very careful consideration. A California appeals court, for instance, has held that the attorney client privilege may not necessarily be asserted to prevent questioning of an expert witness into the subjects of conversations between counsel and the expert related to the lawsuit.