Evidence

The Three Most Basic Principles of Evidence Law
Stephen A. Saltzburg There are three basic principles that govern the way lawyers handle almost all battles over evidence. The surprising thing is not the content of these principles; it’s how frequently trial lawyers either ignore or forget them. Perhaps this is not unexpected because none of these basic principles is explicitly set forth in either the Federal Rules of Evidence or any other codified rules of evidence. But their essentially cannot be denied, and their importance justifies, if not demands, a review of them from time to time.

The Authentication of Social Media Postings
David I. Schoen The widespread use of social media and the variation in practices among sites give rise to concerns about the reliability of such evidence. On February 10, 2011, for example, the New York Times reported that a series of comments attributed to Rahm Emanuel appeared on a Twitter feed reflecting profanity and substantively offensive thoughts. However, as the Times reported, it turned out that the Twitter feed did not actually originate from Emanuel but was the product of a parallel account, known in the industry as a “parody account,” reflecting the comments of someone else who was posing as Rahm Emanuel. See, e.g., Ashley Parker, “You Wouldn’t Believe What Rahm Emanuel Is Saying on Twitter. Neither Does He.” New York Times, Feb. 10, 2011.

Internet-Based Evidence: Is It What It Says It Is?
Karen L. Stevenson The Internet can be a valuable source of evidence for trial, but continuing doubts about the reliability of Internet-based evidence make proper authentication problematic. Two recent appellate court decisions illustrate potential dangers for litigators who do not carefully consider how evidence gathered from the Internet will be authenticated.

Protecting Work Product in Rule 30(b)(6) Depositions
Gillian G. W. Egan A deposition notice of a corporate designee under Federal Rule of Civil Procedure 30(b)(6) can be a common source for objections based on the attorney work-product doctrine. The very nature of a 30(b)(6) deposition makes it almost certain that the deponent has had to review documents or other discovery with the corporation’s attorney during deposition preparation. There is a particular attorney work-product objection to keep in mind if you have received, or are working to prepare, a 30(b)(6) deposition notice. It is called the “selection and compilation” theory of discovery documents, and it has been widely cited nationwide in cases involving discovery disputes, even cases in which opposing counsel invoked Rule 612 of the Federal Rules of Evidence in an attempt to compel production of collected documents.

California Affirms Work Product Protection for Witness Statements
N. Saggar In a unanimous decision that may lead to increased discovery disputes for trial courts, the California Supreme Court recently clarified the scope of attorney work product protection with respect to witness identities and statements. The court held that recorded witness statements procured by an attorney or his agent are entitled to qualified work product protection as a matter of law; however, the identity of witnesses is entitled to no such protection.

Work-Product Protection Denied to Tax Accrual Workpapers
By R. Rodriguez The attorney work-product doctrine does not shield “tax accrual work papers” from an IRS summons even though the documents were prepared by in-house counsel and contain legal insight and analysis, according to a recent ruling of the First Circuit Court of Appeals, sitting en banc.

Court Does Not Require Proof of Bad Faith for Spoliation Sanction
Michael Deitch In 1981, I attended a deposition in a small Central Texas town at the office of a 79-year old lawyer who had begun his practice in the 1930s. During a break, he began to reminisce about how complicated the practice of law had become. When he opened his law office, things had been much simpler. He explained that he only needed four pieces of equipment to start—a desk, a chair, a file cabinet, and a typewriter. Not even a telephone graced his desk. If he needed to see a client, he saw him or her across the street at the courthouse or in the local café. More than 30 years later, I have been asked to reminisce about the changes in office technology that I have witnessed and where I see things headed. I can truthfully report that telephones were considered essential by the 1970s.

Jail Time for Spoliation?
S. T. Carnathan Serious spoliation can carry serious consequences, including the possibility of jail time for the culpable party. In a recent order, Magistrate Judge Paul W. Grimm, of the U.S. District Court for the District of Maryland, provided an exhaustive review of what the court found to be a four-year campaign of spoliation of evidence in a case involving alleged violations of copyrights and patents, and unfair competition.

What’s Wrong With Hearsay?
J. Abrams Ask two trial lawyers about how they view the hearsay rule, and you’re likely to get two different responses depending on their personal experiences in trial. If, in the attorney’s opinion, the judge ruled properly, the hearsay rule worked, even if the judge, in fact, got it wrong. A simplistic conclusion about the hearsay rule, then, may be that it doesn’t work or has outlived its purpose. In that regard, there is substantial scholarly work favoring expanding the admissibility of hearsay[1] Although expanding the admissibility of hearsay is not a new concept,[2] in general, practicing lawyers seem content to defend the rule, particularly in criminal cases.[3] So, is there anything really wrong with the hearsay rule? Have times changed so much that the hearsay rule has outlived its purpose?

Rules for Avoiding the Pitfalls of Filing Inadequate Affidavits by Custodians of Business Records
Robert L. Rogers, III Courts routinely grant dispositive motions based upon business records when such records are accompanied by affidavits establishing their admissibility under the business records exception to hearsay. The rules permitting Courts to do so are key features that contain the cost of business litigation.1 However, litigators should not take these rules for granted. In several recent opinions, Florida's appellate courts have reversed judgments based upon the improper admission of records custodian affidavits when the affiants or proffered witnesses lacked sufficient knowledge about how the records were maintained.2 These cases highlight the importance of selecting the correct persons to act as records custodians and the need to assure that their affidavits contain all the elements required under the law governing the business records exception. This article analyzes the lessons to be learned from these cases and offers a list of "dos" and "don'ts."

An Overlooked Hearsay Exception Proves Positive
D. Van Tassel As trial attorneys, we understandably tend to focus on the positive evidence we have amassed in discovery (e.g., the key documents and the fantastic admissions). While we stack up the mountains of paper in preparation for trial, it is easy to overlook a powerful and persuasive weapon—namely, the evidence that isn't in the record.

The Permissible Use of Evidence of Insurance Coverage
Andrew P. Hoppes Ask almost any litigator to complete this sentence: “Evidence of liability insurance coverage is . . . .” The usual answer will be something like “not admissible.” As a general proposition, that answer is accurate, but not in every situation. Federal Rule of Evidence 411 codifying the admissibility of evidence of liability insurance is, as one commentator explained, “only an exclusionary rule in a limited sense.” David P. Leonard, The New Wigmore: A Treatise on Evidence: Selected Rules of Limited Admissibility, § 6.9 (rev. ed. 2002). While it bars admission of evidence of liability insurance “to prove whether the person acted negligently or otherwise wrongfully,” it allows admission of evidence of liability insurance “for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership or control.” Fed. R. Evid. 411.

A Practical Guide to Admitting ESI at Trial
Joseph A. Martin and Christine S. Baxter Since the 2006 amendments to the Federal Rules of Civil Procedure, which made explicit the discoverability of electronically stored information (ESI), a robust body of case law has developed addressing nearly every aspect of electronic-discovery practice. Courts have considered and decided such issues as when the duty to preserve ESI arises, the appropriate allocation of the costs of e-discovery, the sanctions appropriate for failing to satisfy one’s e-discovery obligations, and, most recently, whether the use of more efficient review methodologies, such as predictive coding, can satisfy a party’s e-discovery obligations.

Summaries May Help, but Must Still Meet Rules 611(a), 1006
James "Marty" Truss Virtually every trial would be much easier, quicker, and less expensive if a party could dispense with the formality of offering numerous pieces of evidence through multiple witnesses in favor of a single comprehensive “summary” document compiling only the most salient excerpts from the vast fruits of the discovery process. In this way, the party could present its entire case in a summary fashion through one key witness and, if allowed by the court, use slanted descriptions of the compiled data to present a virtual closing argument from the witness stand. Because the data compiled during discovery in much civil litigation amounts to an unwieldy mass of voluminous writings and other physical evidence, trial lawyers are occasionally tempted to skirt various rules of evidence by disguising written closing arguments or narrative witness scripts as summaries of voluminous materials under Federal Rule of Evidence 1006.

The Reliability, Admissibility, and Power of Electronic Evidence
Z. Newman and A. Ellis For litigators, the advent of electronic data has been both a blessing and a curse. The headaches associated with electronic discovery have been well-documented, and this article will not delve into them again. Suffice it to say that it is not uncommon even in smaller trials to have over a terabyte of data and many thousands of documents to review and produce. Electronic data simply provides a treasure trove of information in every case of every size that can ultimately prove, disprove, or color litigation. Moreover, contemporaneous electronic communications seem to have an air of reliability that is not generally credited to someone’s recollection of events, particularly if those events occurred years before the matter ultimately comes to trial.

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Remember the Basics of Hearsay
Professor Fredric Lederer, William & Mary Law School, Williamsburg, VA

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The Impact of Crawford v. Washington on Jurisprudence
Prof. Stephen Landsman

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Argue and Win Close Evidence Questions in Both Civil and Criminal Cases
Prof. Stephen Landsman