The Documentalist

Legal Considerations for Electronic Evidence, Part 2: Relevance and Authenticity

Posted in Reports by Sarah on April 26, 2010

This post is the second in a series discussing a legal opinion that focuses on means for establishing electronic documentation as evidence for legal proceedings in the United States legal system.  The opinion was written in response to an insurance arbitration case concerning coverage for lightning damage to the plaintiffs’ yacht.  Both parties to the case (the yacht owners and the insurance company) submitted emails as evidence to support their claims, but the judge found that neither party had taken sufficient steps to establish the admissibility of electronic evidence and dismissed both sides’ motions without prejudice so that they could do the necessary foot work and resubmit.  At the same time, the judge took advantage of writing the opinion to pull together a comprehensive review of extant precedent on the submission of electronic evidence in order to create a resource for future counsel relying on electronic documents as a source of evidence.  The judge writes concerning five issues that must all be addressed when submitting electronic evidence–just as would be done for paper evidence.  Those issues are: relevance, authenticity, hearsay, original or duplicate documentation, and unfair prejudice. This post will deal with relevance and then begin to deal with authenticity.  However, Authenticity is a very complex issue, so there will be at least two posts dealing with it.

The discussions posted here are based on commentary presented in the Memorandum Opinion for the case “Jack R. Lorraine and Beverly Mack, Plaintiffs v. Markel American Insurance Company, Defendants.  Civil Action No. PWG-06-1893,”  heard in the United States District Court for the District of Maryland.  The opinion was written by Paul W. Grimm, Chief United States Magistrate.  For an overview of the case, please see the post “Legal Considerations for Electronic Documentation in the U.S.
–Sarah

Issue 1: Relevance

Relevance refers to whether or not a piece of evidence has any direct bearing on the case at hand in terms of contributing to the ability to prove or disprove facts of the case.  According to Judge Grimm, relevance is the first thing to be established for any potential piece of evidence, including an electronic document.  Following Federal Rule for Evidence (FED. R. EVID) 401:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probably than it would be without evidence.  The question of relevance is thus different from whether evidence is sufficient to prove a point (Lorraine v. Markel, p. 13).

Given that this standard must be met for establishing the relevance of  any sort of evidence, regardless of origin or format, it isn’t at all difficult to figure out how this rule applies to electronic evidence, or “electronically stored information” (ESI).  As indicated in the quoted material above, at the bare minimum, counsel has to demonstrate that the documentation they wish to submit has some bearing on the facts of the case–this is largely established through content and origin of the document.  Once relevance has been established the next step is to establish the authenticity of the documentation in question.

Issue 2: Authenticity: The Lay of the Land

Authenticity simply means that a document is indeed what it is represented to be. In fact, this aspect of establishing a document as evidence is closely related to relevance–if the document is not what it is purported to be, then it is not relevant to the case.  At the  very least, the party putting forth the document (the “proponent”) has to provide sufficient evidence such that, “[t]he Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so” (United States v. Safavian as cited in Lorraine v. Markel, p. 17).  In other words, at the very least, the proponent needs to establish the overwhelming likelihood that a document is what it is supposed to be, s/he is not required to establish its authenticity beyond all shadows of doubt.

Establishing authenticity seems straight forward on the surface of things, but the legal rules and protocols surrounding it are involved and complex.  In fact, out of the 101 page opinion that Judge Grimm wrote to cover the five key issues related to establishing the admissibility of electronic documentation into evidence, the section on authenticity accounts for 40 pages  (Lorraine v. Markel, Pp. 16-56).  There are several Federal Rules of Evidence and issues of precedent or procedure that apply to establishing authenticity, but this and subsequent posts will only focus on those that relate most directly to questions of interest for archiving and preservation, namely challenges related to establishing authenticity and the role of metadata in establishing the same.

Key types of evidence to be authenticated

The question of establishing authenticity applies to all forms of electronically produced document or communication, but from the perspective of human rights work, I will draw out those forms that are most directly relevant to legal action and archiving vis-a-vis human rights electronic documentation.  Future posts will work through the issues associated with authenticating these forms in detail.  The forms in question are:

  1. Email
  2. Webpages and website postings (e.g. comments on blogs or bulletin boards)
  3. text messages and chat room content
  4. Computer stored records and data
  5. Digital photographs (and by extension, video)

Clearly, there are other forms of digital and electronic documentation or communication that exist–e.g. audio recordings, mashups, Twitter tweets, Facebook posts–but those listed are the types focused on in Lorraine v. Markel, largely because in 2007 (when the opinion was written), Web 2.0 had not taken off to the extent that it has now.  However, as we will see in working through the issues and rules related to the five document types listed, the considerations will be the same for new social media text sources and it is likely that Federal Rules of Evidence are being extended to accommodate them as sources of evidence even as we speak.

Key procedures for establishing authenticity

As Judge Grimm notes in his opinion, the world of technology is quickly changing, making it very difficult for there to be any standard of evidence that applies across all instances of electronic documentation.  Metadata associated with computer programs, media platforms, and the like are an important source for authenticating a document, but due to the changing nature of the technology world, the court cannot expect metadata standards, nor can judges or juries–as technology lay folk–be expected to be up to speed on the latest iterations of metadata practices.  Thus it is incumbent upon counsel (lawyers for the plaintiff and defendant) to use multiple means of establishing the relevance and authenticity of any given piece of electronic information.

Fortunately, the current Federal Rules of Evidence extend nicely to address issues related to electronic documentation, thus allowing counsel to extend rules and judges to find those extensions to be valid.  As a result, a body of precedent already exists demonstrating that if a piece of electronic evidence stands up to the rigors of discovery and foundation, then it serves as evidence just as paper documentation, phone calls, or even reported conversations do.  And since there is no standard of metadata or presentation for any of these more traditional forms of evidence, the court expects no such standard for electronic evidence, either.  Instead, counsel are expected to use a combination the following means of establishing the authenticity of electronic evidence (see Lorraine v. Markel p. 21–listing only those items that apply specifically to electronic evidence.  See the full text in the opinion for a complete list of rules for evidence under FED. R. EVID. 901(b)):

Rule 901

(b) Illustrations

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge.  Testimony that a matter is waht it is claimed to be.

(3) Comparison by trier [jury] or expert witness.  Comparison by the trier of fact or by expert witnesses with specimens that have been authenticated.

(4) Distinctive characteristics and the like.  Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(7) Public records or reports.  Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(9) Process or system.  Evidence describing a process or system used to produce a result showing that the process or system produces an accurate result.

In addition to FED. R. EVID. 901, two other Federal Rules come into play–902 and 201.

Rule 902 allows for authentication of evidence through extrinsic evidence in a process called “self-authentication.”  Essentially, the nature of the document itself, the way it has been identified and recorded, and the process by which it was recorded are sufficient to ensure that the document is what it purports to be.    Such self-authenticating indicators include (Lorraine v Markel p. 31-32):

  1. public documents (foreign or domestic) carrying a seal of certification
  2. public documentation (foreign or domestic) without a seal, but vouched for under seal by an authority able to identify the document
  3. Foreign documents executed and/or attested by authorized individual
  4. certified copies of public records (foreign or domestic)
  5. official publications
  6. news papers or periodicals
  7. trade inscriptions–signs, tags, or labels affixed by home offices
  8. documents acknowledged by a notary public
  9. commercial paper related to documents, e.g., signatures
  10. documents declared by Act of Congress to be authentic
  11. certified domestic records of regularly conducted activity accompanied by declaration of such written and sealed by authority
  12. certified foreign records of regularly conducted activity accompanied by declaration of such written and sealed by authority

Rule 201 allows for the authentication of evidence through judicial notice of adjudicative facts that are either generally known within the jurisdiction of the court or for which accuracy can be determined by sources that “cannot reasonably be questioned” (Lorraine v. Markel, p. 38 citing FED. R. EVID. 201(b); WEINSTEIN 201.12[1]).  Essentially, in this sort of authentication, if the judge recognizes the ubiquity of a form or practice of documentation as common in his or her jurisdiction, then the documentation is acceptable as evidence.

The three rules and their associated sub-rules above were all originally written in a world of paper documentation, however, as we will see as future posts work through examples of their application, they can be easily extended to electronic documentation, allowing for their authentication even in the absence of good metadata or solid knowledge of the opperations of programs and platforms.  As Judge Grimm summarizes the situation:

The above discussion underscores the need for counsel to be creative in identifying methods of authenticating electronic evidence when the facts support a conclusion that the evidence is reliable, accurate, and authentic, regardless of whether there is a particular example in Rules 901 and 902 that fit.

In short, counsel need to recognize that no single approach to authentication will serve all cases and classes of electronic evidence because of the wide diversity of documentary types that exist.  Understanding how rules of evidence transform electronic documents into admissible evidence has important implications for thinking about producing, archiving, and preserving electronic documentation of human rights issues.  In a context that increasingly calls for standards and best practices, we recognize that courts of law have no expectation of standardized formats, metadata, or archiving practices.  Such standards serve as one part of a larger set of supporting evidence for establishing a document as evidence.  The standards do not stand alone.

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Legal Considerations for Electronic Evidnece in the U.S.

Posted in Reports by Sarah on April 15, 2010

This post will be the first in a series  that will cover some of the legal considerations surrounding the admissibility of electronic documentation as legal evidence in the United States.  Though the legal considerations aren’t the same internationally, I imagine many of the same issues have to be confronted in the international courts as human rights cases enter the judicial process and an increasing amount of evidence is created electronically.

This first post in the series provides and overview of a judicial opinion from the Circuit Court of Maryland that lays out the issues of admissiblity for electronic evidence and summarizes the main points I see as important for thinking about from the perspective of archiving and preservation.  Subsequent posts will focus on specific issues in detail in order to present issues that might be worth considering as we think about archiving and preserving electronic evidence of human rights issues, cases, and abuses.  Please feel free to comment on and discuss these issues here in the blog as I get them posted!

–Sarah

One of the questions in the Human Rights Electronic Evidence Study concerns how electronic human rights documentation can serve legal needs as cases move into local, national, or even international courts.  Judicial processes are necessary for bringing closure to victims, seeking justice from perpetrators, establishing legal protections for basic human rights, creating democracy, and establishing a means of making reparations for losses and suffering.

A  judicial opinion that came out of the District Court of Maryland in May  of 2007 takes us a good step toward understanding how electronic documentation can be admitted as evidence in support of legal cases.  Written by Paul W. Grimm, Chief United State Magistrate, the opinion addresses a fairly straightforward insurance arbitration case that would not normally require an elaborated opinion, but problems arose concerning the admissibility of email as evidence to support both the plaintiff’s and the defendant’s claims.  Judge Grimm therefore took advantage of his decision in the case to pull together a  body of extant case precedent regarding the admissibility of electronic evidence to serve as a resource for future cases.  In doing so, Judge Grimm recognizes that–as more and more documentation is created, stored and shared electronically–the court needs to have a set of expectations in place for establishing the validity of  electronic documentation, or “electronically stored information” (ESI).  Though this case does not deal with human rights issues, the processes and protocols that Judge Grimm pulls together can serve human rights cases  as parties seek to admit electronic evidence to support their cases.

The opinion is quite long at 101 pages (thus the need to address it in several posts) and identifies five key issues that counsel must address when submitting ESI as evidence in legal proceedings.  These issues apply to all forms of documentation that could potentially serve as evidence, but most importantly for our purposes, the opinion explains how standing Federal Rules of Evidence can be interpreted to apply to electronic evidence.  The basic argument is that the courts are already well-equipped to handle electronic evidence–there is no need for new rules and procedures.    The five issues focus on how counsel must establishing the following when submitting documentary evidence:

  1. the relevance of ESI
  2. its authenticity
  3. that the content of the ESI is not hearsay
  4. that the document is either an original or and acceptable duplicate
  5. that the document does not introduce unfair prejudice into the case

Jack R. Lorraine and Beverly Mack v. Markel American Insurance Company, Civil Action No.: PWG-06-1893, Memorandum Opinion, District Court of Maryland

The plaintiff and defendant in this case have asked the court to decide on the enforcement of an arbitration decision vis-a-vis insurance coverage of lightning damage to a yacht.  The defendant, Markel American Insurance Company, while accepting the arbitration in favor of the plaintiffs (Lorraine and Mack, the owners of the yacht in question), argues that the arbitrator overstepped his authority regarding awarding monetary damages.  The case is thus about a matter of arbitration procedure, but the judge has dismissed both parties’ motions without prejudice because they both failed to properly establish the authenticity of email documentation as evidence to support their cases.  The judge therefore has taken advantage of the case as an opportunity to pull together a comprehensive opinion concerning the procedures necessary for submitting such evidence and having it stand up in a court of law.  As stated in the opinion:

Because neither party to this dispute complied with the requirements of Rule 56 that they support their motions with admissible evidence, I dismissed both motions without prejudice to allow resubmission with proper evidentiary support.  (Paper No. 26).  I further observed that the unauthenticated e-mails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium.   Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.  Although cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence.  Because there is a need for guidance to the bar regarding this subject, this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case.  It is my hope that it will provide a helpful starting place for understanding the challenges associated with the admissibility of electronic evidence.

The main issue at question in this case was that the parties failed to establish the authenticity of their electronic evidence (a point to be elaborated later in this series), but from an archiving point of view, interesting issues regarding metadata were raised in the process of determining how to establish the authenticity of an electronic document.  As I read the opinion, the points I gleaned concerning metadata and electronic documentation were as follows:

1)       Metadata provided by electronic processing are useful and when available should be taken as proof of authentication (following the Sedona Guidelines: Best Practices in Managing Electronic Information–a .pdf is also available for download here).

2)       However, metadata constantly change as electronic platforms change, and judges are no more qualified to determine authenticity in the face of ever-changing technology than are other technology lay people, so admissibility must more often be determined by affidavit, witness statements to the veracity of the document, or any number of non-metadata related processes for authentication (these processes will be elaborated in subsequent postings in this series).

3)       The majority of admissibility appears to be determined through the processes listed in number 2 above, using as precedent a number of Federal Rules of Evidence (104 a&b, 901, 908, 403, 405) that were designed for paper evidence and extended to electronic evidence.

The general sense, then, is that there is actually no expectation by U.S. courts for standards of metadata because said metadata are constantly shifting and no one can keep up, so the goal is to treat electronic evidence as we would paper evidence in determining authenticity and admissibility.  This fact that the courts have low expectations for metadata in electronic evidence potentially raises some interesting issues and discussions in human rights documentation and archiving–issues that would be good to engage here in follow up discussions related to the posts.

The next post will focus on establishing the relevance and authenticity of electronic documents.

Questions Regarding Disposition of ICTR Archives

Posted in News by Sarah on April 9, 2010

As the UN wraps up its first instances of trials in the International Criminal Tribunal for Rwanda (ICTR), the question has come up concerning where to house the archives generated by these proceedings.  The UN had originally thought to house them in Europe or Tanzania, but Rwanda would like to see the archives housed in Kigali so that they can form part of the nation’s memory of the 1994 Rwandan Genocide.  See the entire article excerpted below by clicking on the title link.

–Sarah

06.04.10 – RWANDA/TANZANIA – RWANDA INSISTS ON HOSTING ICTR ARCHIVES

Kigali, April 6, 2010 (FH) – Rwanda has insisted that all archives of the 1994 genocide should be hosted by Kigali, including that of the Arusha based International Criminal Tribunal for Rwanda (ICTR).

Making his opening remarks at the symposium on genocide against Tutsis on Monday, Rwanda’s Minister for Sports and Culture Joseph Habineza said all efforts should be made to preserve whatever was available after the genocide.

‘’I heard that ICTR archives could be preserved either in Europe or Tanzania. Why? They are our archives and we want them here [Rwanda],” the Minister emphasized before the participants at the Serena Hotel.

Does Innovation Stifle Technology?

Posted in Editorial by Sarah on April 2, 2010

image courtesy of blog.ipodrefresh.com

With the imminent release of Apple’s new iPad (hitting stores April 3, 2010), the innovative gizmo has generated quite a bit of excitement and talk–and even a bit of trepidation.  Though Apple heralds the iPad’s innovative design as revolutionizing the way users consume information, some fear that it will actually stifle new technologies (see “Apple iPad Will ‘Stifle New Technologies” by Jonathan Harwood at The First Post).  Among those expressing concern  is Internet Archive’s director, Brewster Kahle, who states in the article just cited that “[Apple] really control[s] the horizontal and the vertical by going with the iPhone platform [for the iPad]… I think it’s discouraging. The future is controlled, and it’s controlled by Apple.”  The concern here is largely targeted at the fact that the iPad will only allow proprietary applications to run on the machine, forcing customers to purchase all of their on-line media from Apple.  These media include newspapers with proprietary relationships with Apple for display on the iPad, e-books, music, and over 150, 000 iPad-specific applications (see the Official iPad Store for full product details).

Further evidence for trepidation about the iPad’s impact on technology can be found at the Refreshing Blog: Thoughts Related to Apple’s IPOD and IPHONE, where a February post with the title “Who Doesn’t Love the iPad?” states:

Why on earth are people signing a petition against the iPad? Around 5000 people gave a digital signature to a petition against the iPad, which is petitioning the CEO of Apple to remove digital rights from the contents of the device. What this basically means is that the digital rights allow Apple to block competing products, disable certain features, delete books, delete news, and other functions without permission from the user. This is something that up to 5000 people disagree with, and they made their statement online.

Apparently, there is considerable concern about how iPad’s business model could limit consumer choice, as well as technological innovation.

But is such concern really warranted?  The answer is probably not–the beauty of the  technology market is that competition spurs innovation at a dizzying rate.  Even now, Asus (another technology company that designs media readers), is creating two tablets designed to compete directly with the iPad.  These tablets will also present news, blogs, books, music, and internet access, but they draw from competing platforms for their operating systems.  One will use either Google Chrome or Android, while the other will use Microsoft Windows (see techtree.com for an overview of the Asus tablets).  In both cases, book sellers, newspapers, and other media purveyors will adapt to the demands of users of competing gizmos by producing and selling media in a variety of formats.  If this is the case, then we have to see iPad as one product within a range of products that will appeal to large numbers of consumers for a variety of reasons.  This competition between technologies and platforms should spur technology rather than stifle it.

Of course, the subsequent expansion in documentation types will prove to be a challenge for those seeking to preserve electronic documentation–but that has always been the case in digital preservation.