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E-mail as Evdience

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This is an hour presentation on the law of e-mail given as part of an e-discovery conference.

This is an hour presentation on the law of e-mail given as part of an e-discovery conference.

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  • DANPossible content-introduce term “transitory record”-introduce concept of short retention of e-mails-useful hived off from transitory records and transitory records disposed-Will a court go behind a short retention period?-What is the standard? Good faith? Reasonableness?-Lewy v. Remington Arms Co., 836 F .2d 1104 (8th Cir. 1998) (court will consider whether retention period is reasonable in all the circumstances) -Pretty radical… almost a common law duty of care -not aware of a Canadian duty-Micron Technology v. Rambus, Inc. (D. Del., Jan. 9, 2009) -illustrates preservation risks associated with short e-mail retention periods
  • JOHN
  • DAN-problem: employees send and receive e-mails to employer using employers work computer-legal issue: does that waive privilege?-legal cases -Canadian cases have tended to favour preservation of privilege Leading case is Daniel Potter, [2005] N.S.J. No. 186 -president stores e-mails on company’s servers -Scanlan J. says no waiver of privilege -did argue the workplace privacy cases -says privilege is different (question of intent rather than reasonable expectation of privacy) -but reasoning turns on e-mail exposure to ISP’s in general -did he have good evidence that established the employer's domain? -also qualified – he was the president so had control over the system New case is Eissis -s-c communication stored on corporate e-mail system -extracted, processed and produced by defendant -with production made waiver claim -plaintiff waited two years to respond -intentional waiver finding -court also suggests that process of extracting, processing and producing with a waiver claim is proper -risky business…. don’t we “seal and deal”-practically -respect the privilege subject to a fight -law firms should have protocols -protocols should include what to tell clients -clients not bound by ethical rules but court… but ability to obtain instructions may be affected
  • Transcript

    • 1. Email as Evidence
      JOHN D. GREGORY
      DANIEL J. MICHALUK
      February 9, 2010
    • 2. Email as Evidence
      Definitions
      Relevance
      Access
      Production
      Admissibility and Weight
      Case studies
      2
    • 3. Definitions
      Email and e-messages
      1970s
      Classic email (SMTP)
      1980s
      Bulletin boards, MUD, voice mail
      1990s
      Web mail, ICQ, computer-generated or –received faxes
      2000s
      IM, Social networks, Twitter, virtual worlds
      Remix of all of the above – e.g. notice of FB comments & replies
      VOIP (e.g. Skype = voice + image + IM)
      Multiplication of carriers : e-messages in the cloud
      3
    • 4. Relevance
      Why focus on email issues?
      • It’s still the killer app
      • 5. Everybody uses email and (more or less) understands it
      • 6. Can be particularly potent evidence – Gates, Black, Poindexter
      • 7. Information in transit: special issues
      • 8. Multiplicity of repositories
      • 9. Jurisdiction
      • 10. Communications/speech issues with content
      • 11. Impermanence
      • 12. Paradigm case
      • 13. Raises many issues in strong ways that appear elsewhere
      • 14. Evolves quickly – the answers keep changing
      4
    • 15. Access
      Stored communications on the corporate e-mail system
      Lotus Domino, Microsoft Exchange Server, Groupwise
      Blackberry Enterprise Server
      Workstations
      Handheld devices
    • 16. Access
      Hard to access stored communications
      Un-logged PIN-to-PIN messages (including Blackberry Messenger communications)
      Blackberry Internet Service messages
      SMS communications
      Very hard to access stored communications
      Communications on employee home computers
      Communications on “personal” cloud services
    • 17. Access
      The law – sources of rights
      Employee privacy legislation (federal plus three provinces)
      Criminal Code wiretap provision
      “Common law of the unionized workplace”
      Constructive dismissal claims by non-union employees
    • 18. Access
      Cases to watch
      University of British Columbia – BC Supreme Court
      R. v. Cole – Ontario Court of Appeal
      Quon – USSC
    • 19. Access
      Practical options for employers
      Do something now!
      Option #1 – Try harder to control expectations despite personal use
      But how far will notice take you?
      Option #2 – Give in, and implement privacy controls
      Proportional audit/surveillance framework
      Investigation standards (reasonable suspicion)
    • 20. Production
      The problem of volume - retention
      Retention policies are key
      Email is often on a ‘short’ list for retention
      At least pressure to move off server, sometimes auto-delete unless actively saved
      Limit: reasonably likely to need it in litigation
      This can be an e-discovery issue or a trial issue
      Remington case (1998) – is retention policy reasonable?
      Broccoli v Echostar (2005) – 21-day retention of emails
      10
    • 21. Production
      Privilege waiver – the internal counsel problem
      Generally one does not produce privileged information.
      What is privileged, in-house?
      If you copy counsel on all internal emails, all the emails do not become privileged.
      Separate business advice from legal advice
      How to sort it out? Air Canada v Westjet,
      There is no deemed undertaking rule for evidence led at trial.
      11
    • 22. Production
      Privilege waiver – employee emails on employer systems
      A practical problem for employer counsel among others
      Case law on privilege is different from case law on investigations, audits and surveillance
      Lots of U.S. developments, few Canadian cases
      What must you do to shield yourself from a “poisoned client”?
      12
    • 23. Admissibility and Weight
      Proving a digital object is different
      Vulnerability of information composed of presence or absence of electric current
      What happens when the power goes off? When the system crashes?
      Malleability of information
      Easy to change undetectably
      Presentation in the courtroom
      Printout vs native format (capacity to present etc)
      Mobility multiplies the issues
      13
    • 24. Admissibility and Weight
      The elements of documentary evidence: dealing with the differences
      • Authentication
      • 25. Is this record what it purports to me?
      • 26. Admissibility if foundation laid to support that conclusion
      • 27. The cutting edge of e-evidence including email evidence today
      • 28. Best evidence rule
      • 29. What is an original electronic document?
      • 30. Hearsay
      • 31. Does the medium matter?
      • 32. Exceptions wide (reliability) or focused (business records?)
      • 33. It’s not always hearsay (e.g. mechanical evidence)
      14
    • 34. Admissibility and Weight
      The Uniform Electronic Evidence Act (where enacted)
      “Solutions” to electronic application of these rules
      Authentication: codify
      Count on the witness under oath (not saying who)
      Challenge is in responding to challenges (expertise, availability of foundation evidence)
      Best evidence: system not document
      Presumptions in aid: it matters whose system it is
      Standards in aid
      Hearsay: do nothing
      Possible spillover effect of other rules
      Admissibility, nothing re weight
      15
    • 35. Case law
      Not much of interest on UEEA
      R. v. Bellingham (AB) needed evidence of what printouts were
      Leoppky v Meston (AB) – demonstrates several things:
      Court looks behind computer to actual sender
      A series of emails can satisfy Statute of Frauds
      Still had missing link i.e. legal rules still apply
      Nat. Business Solutions (ON) – email as course of conduct
      Singapore vs England: email headers OK or not OK as evidence capable of supporting Statute of Frauds
      Lorraine v Markel (NJ) – extreme demands (all obiter)
      Prove lots about system, manner of production, etc
      Admitted some shortcuts might exist e.g. notice of intent to use
      16
    • 36. An extreme case?
      • “The focus is not on the … creation of the record, but rather on the … preservation of the record during the time it is in the file”
      • 37. “The entity’s policies and procedures for the use of the equipment, database and programs are important. How access to the … database [and to the specific program are] controlled is important. How changes in the database are logged, as well as the structure and implementation of backup systems and audit procedures for assuring the continued integrity of the database, are pertinent.”
      • 38. In re VeeVinhee, US appeal court, 2005.
      17
    • 39. CGSB Standard
      Canadian General Standards Board: Standard on electronic records as documentary evidence
      • The key rule of the Standard: think about it!
      • 40.  In other words:
      • 41. Make a policy about how e-records are managed
      • 42. Communicate the policy
      • 43. Implement the policy
      • 44. Monitor compliance with the policy
      • 45. Adjust the policy as required by circumstances
      • 46. Have a policy manual that you can point to.
      • 47. Have someone responsible (CRO) (+ witness)
      18
    • 48. New e-messages: Challenges
      Webmail, Facebook/MySpace, Twitter
      As you go into the cloud, it is harder to:
      Authenticate (go to ISP not ASP)
      Figure out and prove the ‘system’ whose reliability one would like to count on (or at least appreciate)
      No standardization – every application is different (not like SMTP)
      Consumer oriented – so less rigorous than business systems
      Proprietary – so codes etc are not readily available
      Surrounded by TP apps – Tweetdeck, thousands of FB suppliers – who, where, what are they?
      Are clouds third party providers in ordinary course of business, i.e. should they be considered reliable?
      19
    • 49. Admissibility and Weight
      Email problem #1 – You didn’t send that
      Employee alleges termination on basis of pregnancy
      Email pre-dates her pregnancy by two months showing bona fide intent to terminate
      Proponent can testify
      20
    • 50. Admissibility and Weight
      • Email problem #2 – I didn’t send that
      • 51. Agreement to arbitrate executed through employer’s intranet
      • 52. Execution by entering SSN or employee ID number plus password
      • 53. Supervisors could reset passwords
      • 54. Supervisor resets password to help employee get access
      • 55. Email confirmation sent to employee
      • 56. Employee claims supervisor executed agreement and denies reading confirmation email
      21
    • 57. Email as Evidence
      JOHN D. GREGORY
      DANIEL J. MICHALUK
      February 9, 2010

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