E-mail as Evdience
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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

E-mail as Evdience E-mail as Evdience Presentation Transcript

  • Email as Evidence
    JOHN D. GREGORY
    DANIEL J. MICHALUK
    February 9, 2010
  • Email as Evidence
    Definitions
    Relevance
    Access
    Production
    Admissibility and Weight
    Case studies
    2
  • 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
  • Relevance
    Why focus on email issues?
    • It’s still the killer app
    • Everybody uses email and (more or less) understands it
    • Can be particularly potent evidence – Gates, Black, Poindexter
    • Information in transit: special issues
    • Multiplicity of repositories
    • Jurisdiction
    • Communications/speech issues with content
    • Impermanence
    • Paradigm case
    • Raises many issues in strong ways that appear elsewhere
    • Evolves quickly – the answers keep changing
    4
  • Access
    Stored communications on the corporate e-mail system
    Lotus Domino, Microsoft Exchange Server, Groupwise
    Blackberry Enterprise Server
    Workstations
    Handheld devices
  • 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
  • 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
  • Access
    Cases to watch
    University of British Columbia – BC Supreme Court
    R. v. Cole – Ontario Court of Appeal
    Quon – USSC
  • 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)
  • 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
  • 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
  • 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
  • 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
  • Admissibility and Weight
    The elements of documentary evidence: dealing with the differences
    • Authentication
    • Is this record what it purports to me?
    • Admissibility if foundation laid to support that conclusion
    • The cutting edge of e-evidence including email evidence today
    • Best evidence rule
    • What is an original electronic document?
    • Hearsay
    • Does the medium matter?
    • Exceptions wide (reliability) or focused (business records?)
    • It’s not always hearsay (e.g. mechanical evidence)
    14
  • 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
  • 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
  • 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”
    • “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.”
    • In re VeeVinhee, US appeal court, 2005.
    17
  • CGSB Standard
    Canadian General Standards Board: Standard on electronic records as documentary evidence
    • The key rule of the Standard: think about it!
    •  In other words:
    • Make a policy about how e-records are managed
    • Communicate the policy
    • Implement the policy
    • Monitor compliance with the policy
    • Adjust the policy as required by circumstances
    • Have a policy manual that you can point to.
    • Have someone responsible (CRO) (+ witness)
    18
  • 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
  • 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
  • Admissibility and Weight
    • Email problem #2 – I didn’t send that
    • Agreement to arbitrate executed through employer’s intranet
    • Execution by entering SSN or employee ID number plus password
    • Supervisors could reset passwords
    • Supervisor resets password to help employee get access
    • Email confirmation sent to employee
    • Employee claims supervisor executed agreement and denies reading confirmation email
    21
  • Email as Evidence
    JOHN D. GREGORY
    DANIEL J. MICHALUK
    February 9, 2010