It is essential that any discovery vehicle used to obtain electronic evidence be carefully crafted. A request that asks for "all electronic data" is likely to result in one or more of the following objections:
- Privileged, and not subject to discovery;
- Unduly burdensome;
- Overly broad;
- Not relevant, and
- Vague, and ambiguous.
One of the general requirements of introducing electronic evidence at trial is that it must be authenticated. This means that someone must lay a sufficient foundation so that the trier of fact is able to determine that the evidence is authentic. Electronic evidence requires the same type of foundation testimony to be admitted into evidence as regular hard-copy evidence. Courts consistently rule that electronic evidence is discoverable to the same extent as regular hard-copy discovery. Therefore, all e-mails, calendar entries, or electronic evidence/documents may be discoverable if "relevant" to the claim or defense of any party, and are proven to be "reliable" and "trustworthy."
Courts' main concerns in considering whether electronic evidence has been authenticated is its reliability and trustworthiness. This concern arises because electronic documents are easily manipulating without apparent evidence of alteration. A court will refuse to admit electronic evidence if it is unable to determine the accuracy of the evidence.
Issues may arise with any aspect of electronic data, including the hardware, software, reliability of the data, and/or security.
A basic protocol for laying the foundation of electronic evidence includes the following:
- Testimony regarding who created the evidence,
- When the evidence was created,
- Who received the evidence,
- Where the evidence was located on the Internet, and
- How the evidence pertains to relevant legal issues in the case.
To help reassure the court, offer the following:
- Web address and path of the document,
- Date of origination and title of the document,
- Date the document was downloaded or accessed,
- Sworn statement or testimony that the copy had not been altered from that found on the Web site, and
- Pages were printed from the Internet by the person providing sworn testimony, or under his or her direction.
For electronic evidence to be admitted as evidence, a foundation of relevance and authenticity must be established:
- To be relevant, evidence must make a fact in question either more or less likely. Fed. R. Evid. 401.
- Authenticity requires a showing that the evidence "is what a proponent claims." Fed. R. Evid. 901(a).
- Authenticity may be established through witness testimony, distinctive characteristics of the evidence, and the like. Fed. R. Evid. 901(b).
- To be admissible, the contents of the documents may not contain hearsay; an out-of-court statement offered as evidence "to prove the truth of the matter asserted." Fed. R. Evid. 802.
The rules do prescribe twenty-three exceptions to the general rule, including present-sense impressions, recorded recollections, records of regularly conducted activities, and public records. Fed. R. Evid. 803(1), (5).
If electronic evidence is offered to prove the truth of statements found in the document or other electronic format, the evidence is hearsay and must satisfy one of the exceptions to be admitted. E-mail and printouts of Internet sites are clearly out-of-court statements. As with traditional evidence, a party offering electronic evidence must consider and expect the hearsay objection and develop a plan or strategy for overcoming the objection before its introduction.
There are twenty-three specific hearsay exceptions in Michigan law (MRE 803), nearly identical to those found in Fed. R. Evid. 803. Typically, the following exceptions to the hearsay rules are used in defense of electronic data:
- Business Records Exception. Rule 803(6). Computer printouts of business records have been held admissible if a sufficient foundation is introduced. The trend among courts has been to treat computer records like other business records and not to require the proponent of the evidence initially to show trustworthiness beyond meeting the general requirements of the rule.
- Present-Sense Impression. Fed. R. Evid. 803(1). E-mails are regularly admitted into evidence where they explain the event in question shortly after it occurred. Admissibility hinges on whether the statement was substantially contemporaneous with the event.
- Public Records Exception. Rule 803(8). A court determined that e-mails offered by the defendant federal agency were public records, which are generally admissible. The circumstantial guarantee of trustworthiness underlying this exception is similar to that underlying the business record exception. That is, public reports are assumed to be accurate and reliable because they are maintained and relied upon in the course of a regularly conducted activity. In addition, it is assumed that public officials will prepare public records according to their duties.
- Party Admissions. Fed. R. Evid. 801(d)(2). It was recently determined that the trial court should have admitted as a party admission an e-mail written within the scope of the author's employment and sent from Plaintiff to Defendant. The general rule is that a man's acts, conduct, and declarations are admissible against him, as it is fair to presume they correspond with the truth, i.e., "You said it; you're stuck with it."
Elements of Authentication for E-mail and Computer Records
- E-mail—can be authenticated in a variety of scenarios involving its appearance, contents, substance, or other distinctive characteristics taken in conjunction with the circumstances.
Reply E-mail Doctrine
- The witness prepared the first e-mail.
- The witness addressed the first e-mail.
- The witness sent the first e-mail.
- The witness received the first e-mail.
- The e-mail arrived as expected and timely.
- The e-mail received referred to the first e-mail or was responsive.
- The second e-mail bore the name of the author who received the first e-mail.
- The witness recognizes the exhibit as the second e-mail.
- The witness specifies the basis on which he/she recognizes the e-mail.
E-mail Content Doctrine
The witness testifies that the substantive content of the e-mail was only known by him/her. If the reply feature was used, the new message will include the sender's original message. If the witness only sent it to one person, its inclusion in the reply indicates that the new message originated with the original recipient.
The foundation for an e-mail message can be authenticated by providing testimony about the cryptography used in transmitting the message.
Action Consistent with the E-mail Message If either the conduct of the sender or recipient of an e-mail is consistent with the e-mail message, that conduct could provide circumstantial authentication of the source of the e-mailed message.
Elements (business records)
- The business uses a computer.
- The computer is reliable.
- The business has developed a procedure for inserting data into the computer.
- The procedure has built-in safeguards to ensure accuracy and identity errors.
- The business keeps the computer in good repair.
- The witness had the computer read out certain data.
- The witness used the proper procedures.
- The computer was in working order at the time the witness obtained the record.
- The witness recognizes the exhibit as the record.
- The witness explains how he or she recognizes the record.
- Record is a memorandum, report, or data compilation in any form, etc.
- Witness is the custodian or other qualified witness.
- Record was made by a person with knowledge or made from information transmitted by a person with knowledge of the facts.
- Record was made at or near the time of the events recorded in it.
- Record was made as part of the regular practice of that business activity.
- Record was kept in the course of a regularly conducted business activity.
To be used at the beginning of a discovery response, i.e., interrogatories and documents requests. [caption]
[PL'S/DEF'S] Objections and Response
TO [PL'S/DEF'S] [discovery type] Pursuant To [court rule]
Now Comes [Plaintiff/Defendant] [name], by and through [his/her] attorney, [name] of the law firm [name], and for [his/her] objections and response to [Def's/Pl's] [discovery type], states as follows:
- [Pl/Def]'s discovery and investigation of the subject matter of this lawsuit are continuing. Analysis of discovered information is proceeding. [Client] makes the following responses without waiving his/her right to conduct further discovery, to further prepare case for trial, and to modify or supplement these responses or serve additional responses as deemed appropriate.
- [Pl/Def] objects to each interrogatory to the extent it seeks information pertaining to communications between XX and his/her legal counsel or information concerning or resulting from preparation for, or in anticipation of, litigation or trial, both of which are privileged.
- [Pl/Def] objects to each[ interrogatory/document request] to the extent it seeks [information/documents] that [is/are] privileged under any other applicable law, statute, regulation, or court opinion, or which would require [Pl/Def] to waive [his/her] rights under the United States Constitution, or ___________.
- [Pl/Def] objects to each [interrogatory/document request] on the grounds that the same are unduly burdensome and overly broad and seek information that is not relevant to this lawsuit or information reasonably calculated to lead to the discovery of admissible evidence. XX further objects on the grounds that each interrogatory is vague and ambiguous and does not adequately appraise XX of what is sought.
- None of [Pl/Def]'s responses or the documents previously produced or responses or documents in further supplementation of these responses, shall be deemed a concession that the subject matter of the interrogatory or the produced document is relevant to the action, and [Pl/Def] provides all responses and documents without waiving or intending to waive any objection as to relevance, privilege, or admissibility.
- As to each objection stated above or in response to a specific [discovery type] below, [Pl/Def] requests the issuance of an appropriate protective order pursuant to [court rule].
- Subject to and without waiving the foregoing objections or any set forth below in response to the [interrogatories/document requests], [Pl/Def] responds to [Pl/Def]'s [discovery] pursuant to [court rule], as follows.
Bob Guyot is a family law practitioner in Traverse City, Michigan, and a member of the Family Advocate Editorial Board.
Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.