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.

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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

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