What type of Electronically Stored Information ( ESI )
regarding your client may hurt or help your case?
What is ESI ?
Federal Rules Definition: Committee Notes - information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software . Electronically stored information is distinguished from information derived from "conventional" media, such as writing or images on paper, photographic images, & analog recordings.
Use Federal Rules in your State Case because GA Courts are trying to find their way now:
* Remove incriminating links, posts & photographs the day contract is signed .
* Review all social media sites used by your client
* Consider setting client’s social sites to “private.”
* Don’t forget blogs or forums.
New Jersey: Injured Plaintiff’s "symptoms and related health conditions" that had been "shared with others, including entries on Web sites such as Facebook or MySpace” were discoverable.
Critical Case: Lorraine v. Markel American Ins. Co .,241 F.R.D. 534 (D. Md. 2007)
Coverage dispute - whether lightning had caused damage to hull of plaintiff’s boat. Parties attached ESI (primarily emails and attachments) to motions for summary judgment, but Court denied motions because neither party laid proper foundation for admission of ESI. Court issued a 101 page decision setting out admissibility standards to authenticate ESI; (1)Relevancy (FRE 401); (2) Authenticity (Rule 901); (3) Hearsay/exceptions (Rules 801, 803, 804); (4) Best Evidence Rule & (5)Unfair prejudice (Rule 403)
Authentication of ESI: Websites • Hutchens v. Hutchens-Collins , 2006 WL 3490999 (D.Or. 2006)
– Defendant hired forensic vendor to download content of website pages to “write-only” CD-ROM’s. – Website freely available on internet. – Vendor tracked registered domain name to plaintiff’s corporation through publicly available WHOIS system. – Court held totality of circumstances