Category Archives: Authentication

Daubert Analysis in Recent Federal Circuit Court Cases.

29 Thursday Jun 2017

Posted by in Authentication, Daubert Motion, Evidence, Litigation, Product Liability

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Daubert In Product Liability Cases: Mid-2017 Update, by Max Kennerly, Litigation & Trial

http://bit.ly/2s7ZL96

An excellent analysis of Daubert in 4 product liability cases from the federal circuit courts. -CCE

Today we’re going to review the state of the art, as it were, of Daubert in product liability cases by examining the four most recent published Court of Appeals opinions. Those opinions are:

  • Adams v. Toyota Motor Corp., No. 15-2507, 2017 WL 2485204 (8th Cir. June 9, 2017)
  • In re Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., 16-2247, 2017 WL 2385279 (3d Cir. June 2, 2017)
  • Wendell v. GlaxoSmithKline LLC, No. 14-16321, 2017 WL 2381122 (9th Cir. June 2, 2017)
  • Nease v. Ford Motor Co., 848 F.3d 219 (4th Cir. 2017)

Plaintiffs lost Zoloft and Nease, and won Adams and Wendell. But it would be foolish to look at these cases simply as a scorecard: the real issue here for future cases is how the courts decided the cases.

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New Federal Rules in Evidence in 2017 Will Affect The Hearsay Exception and E-Discovery.

22 Sunday Jan 2017

Posted by in Authentication, Discovery, E-Discovery, Evidence, Rule 803 Exception, Rule 902

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‘Ancient’ Data (and Documents): Prepare for Federal Changes to a Long-standing Hearsay Exception, by Carey Busen and Gilbert S. Keteltas, BakerHostetler, Discovery Advocate Blog

http://bit.ly/2jeUNW2

If you hadn’t heard, there are changes to the Federal Rules of Evidence that will become effective in 2017. Among the changes are rules on hearsay exception for “ancient documents” and rules specifically addressing electronic evidence. Because technology is never static, e-discovery has looked forward rather than backward. These new rules will address e-discovery older than 20 years. -CCE

If wish to do more research into this area, I recommend:  Gregg Kettles, Ancient Documents and the Rule Against Multiple Hearsay, 39 Santa Clara L. Rev. 719 (1999). http://bit.ly/2jOIujM

9th Circuit Rules Google Earth Coordinates Are Not Hearsay.

24 Wednesday Jun 2015

Posted by in Admissibility, Authentication, Evidence, Hearsay, Legal Technology

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How to Get Google Earth Images Admitted for Litigation, by Morgan C. Smith, Cogent Legal 

http://tinyurl.com/ngxpzxc

Many attorneys rely on Google Earth as the primary source for finding visual information for specific locations, all over the world, involved in litigation (see my prior post discussing how to use Google Earth for images and obtaining archival images). However, when finding great images, or determining precise locations based on GPS coordinates, the next question is always:

‘How do I get this into evidence?’

This is not an easy question to answer, yet a recent decision by the Ninth Circuit Court of Appeals helps resolve one issue of admissibility for such imagery: Google Earth coordinates are not hearsay. . . .

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“Read Receipt” Email Message Is Not Hearsay.

17 Friday Apr 2015

Posted by in Admissibility, Authentication, Evidence, Federal Rules of Evidence, Hearsay, Litigation, Summary judgment

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Court Rules that Automatically Generated Read Receipt is Not Hearsay: eDiscovery Case Law, by Doug Austin, eDiscoverydaily

http://tinyurl.com/ozbratn

In Fox v. Leland Volunteer Fire/Rescue Department Inc., 7:12-CV-354-FL. (E.D.N.C. Mar. 10, 2015), North Carolina District Judge Louise W. Flanagan ruled that a Read Receipt automatically sent from the defendant’s email address to the plaintiff (when the defendant opened an email sent by the plaintiff) was not hearsay.

Case Background

In this wrongful termination case, the court was considering the defendants’ motion for summary judgment, as well as the defendants’ motion to strike certain exhibits attached to plaintiff’s brief in opposition to summary judgment for failure to comply with Federal Rule of Civil Procedure 56(c) & (e). One of the items that the defendants sought to exclude was a read receipt sent from defendant Grimes email address to plaintiff, triggered when an email plaintiff sent defendant Grimes was opened, arguing that the Read Receipt was ‘unauthenticated hearsay’.

Judge’s Opinion

Judge Flanagan made a swift ruling on this issue when she stated ‘Defendants’ argument fails. The Read Receipt is not hearsay.’ . . .

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Seat Belt Use Evidence Now Admissible In Texas.

19 Thursday Feb 2015

Posted by in Admissibility, Authentication, Damages, Discovery, Evidence, Motor Vehicle, Negligence, Personal Injury, Product Liability, Relevance, Torts, Wrongful Death

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TX: Evidence of Seat Belt Non-Use is Admissible to Apportion Responsibility, by Christopher J. Robinette, Torts Prof Blog (with hat tip to Jill Lens (Baylor)!)

http://tinyurl.com/kmbeph9

For years, evidence of seat belt use was prohibited at trial. The Texas Supreme Court changed that rule of law with this case. This ruling will have a major impact on this area of the law. -CCE

The Texas Supreme Court case, which was announced on Friday, is Nabors Wells Services, Ltd. v. Romero. The case (pdf) is here:  Download TX Sup Ct = Seat Belt Admiss  From the opinion:

We hold relevant evidence of use or nonuse of seat belts, and relevant evidence of a plaintiff’s pre-occurrence, injury-causing conduct generally, is admissible for the purpose of apportioning responsibility under our proportionate-responsibility statute, provided that the plaintiff’s conduct caused or was a cause of his damages.

Basic Evidence Presentation Tips For Young Lawyers.

11 Tuesday Nov 2014

Posted by in Admissibility, Authentication, Evidence, Exhibits, Legal Technology, Presentations, Trial Tips and Techniques, Video

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Letter To Young Lawyers—Basic Tips And Presentation Of Evidence, by Hon. E. Kenneth Wright Jr.,YLD News, Illinois State Bar Association™, Vol. 55, No. 1 (August 2010)

Dear Attorney Jane Doe and Attorney John Doe:

As a young lawyer, you are in a place that I left some time ago. However, I have watched you step into jury courtrooms with a level of anticipation and excitement that is refreshing. While a few of you mask it well, I know there is also some anxiety lurking in the background. Don’t worry, because that anxiety strikes even the most seasoned litigators. Now I sit on the bench, and I sometimes wish I could call a time out during the trial to share with you some simple tips that will put you more at ease as you proceed with your case.

Being a member of the judiciary is an honor that comes with extraordinary powers and responsibilities. These powers do not include a coach’s ability to call for substitution of players, so in this note I want to briefly address some basic practical pointers to improve your overall practice as well as touch upon the specific issue of presentation of evidence to a jury. I hope by doing so I give you peace of mind and contribute, in a small way, to your growth as a fine attorney.

Basic Pointers

How quickly you acclimate yourself to courtroom practice depends in large part on you, your learning style, and how many opportunities you have to appear before the court. In the beginning, you may feel overwhelmed by the number of items you must remember, track and recall at a moment’s notice. In your haste, you may overlook a few very basic points that can actually help you. . . .

Philadelphia Legal Opinion on Duty to Preserve Social Media Evidence.

25 Thursday Sep 2014

Posted by in Admissibility, Authentication, Discovery, E-Discovery, Evidence, Litigation Hold, Metadata, Preservation, Social Media

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Lawyer’s Duty to Preserve Social Media Evidence, by Hayes Hunt and Jeffrey Monhait, From the Sidebar Blog

http://tinyurl.com/nn6tmor

Lawyers must take ‘appropriate’ steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar Association. However, lawyers may advise a client to restrict access to the client’s social media so long as the attorney neither instructs nor permits the client to permanently destroy that information. An attorney may even instruct a client to delete information from the client’s page if the attorney preserves that information, including metadata.

You Can Hide, But You Must Preserve
Changing social media settings to ‘private’ merely restricts who may access a web page. The opposing party can still access relevant and discoverable information through discovery or by issuing a subpoena. The committee concluded that this position satisfied Rule 3.4’s prohibition against altering or destroying evidence. As long as the attorney preserves the complete evidentiary record, including metadata, an attorney may advise a client to restrict access to the client’s social media evidence, or remove social media content entirely.

You ‘Must’ Produce Complete Social Media Content
To comply with discovery requests, a lawyer ‘must’ produce the client’s complete social media content if the attorney is aware of this content’s existence. This duty arises from Rule 4.1, which prohibits attorneys from making ‘a false statement of material fact or law to a third person,’ and Rule 8.4, which prohibits ‘conduct involving dishonesty, fraud, deceit, or misrepresentation.’ A lawyer that purposefully omits portions of social media content, or permits or directs the client to destroy social media content, violates these rules.

Also, a lawyer must take reasonable steps to obtain relevant information from the client when the lawyer ‘reasonably believes’ that the client possesses relevant information, such as photographs, links, or other social media content. Despite being obligated to take reasonable steps, a lawyer need not obtain information that was neither in the client’s possession nor the lawyer’s possession.
Frankly, this isn’t groundbreaking or a new duty, it merely reinforces the need for lawyers to better understand social media for purposes of litigation.

What Happens When No Written Notice Is Given To Offer An Exhibit?

30 Saturday Aug 2014

Posted by in 2nd Circuit Court of Appeals, Admissibility, Appellate Law, Authentication, Court Rules, Court Rules, Courts, Evidence, Federal District Court Rules, Rule 803 Exception, Rule 902

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Did You Notice That?: 2nd Circuit Excuses Lack of Written Notice Under Rule 902(11), by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog

http://tinyurl.com/o98a788

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, what happens if a party does not give reasonable written notice of its intent to offer a business record into evidence but there is evidence that the opposing party had actual notice of this intent? That was the question addressed by the Second Circuit in its recent opinion in United States v. Komasa, 2014 WL 4233396 (2nd Cir. 2014). . . .

Vehicular Black Box Is Admissible Evidence To Prove Speed.

11 Wednesday Jun 2014

Posted by in Admissibility, Authentication, Evidence, Forensic Evidence, Litigation, Motor Vehicle, Trial Tips and Techniques

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Vehicular Black Box: Superior Court of Pennsylvania Finds Event Data Recorder Evidence Admissible to Prove Speed, by Evidence ProfBlogger, edited by Colin Miller, EvidenceProf Blog

http://tinyurl.com/n6p96kp

Until reading this article from the Pittsburgh Post-Gazette, I wasn’t aware that a vehicle has an ‘event data recorder’ akin to an airplane’s ‘black box.’  And now, according to the Superior Court of Pennsylvania in Commonwealth v. Safka, such evidence is admissible to determine a car’s speed at the time of an accident. . . .

When Discovery Becomes Less About The Merits of the Case And More About Obstruction.

24 Saturday May 2014

Posted by in Admissibility, Authentication, Depositions, Discovery, Evidence, Federal Rules of Discovery, Federal Rules of Evidence, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions, Subpoena Duces Tecum, Trial Tips and Techniques

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Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery, by Max Kennerly, Esq., Litigation and Trial Blog

http://tinyurl.com/m7wk9mz

Please make sure to catch the reference and link to: Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013).  -CCE

‘If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.’ Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989). . . .

Craig Ball’s Lawyers’ Guide to Forms of Production.

19 Monday May 2014

Posted by in Adobe Acrobat, Authentication, Bates Numbers, Computer Forensics, Databases, Discovery, Document Review, E-Discovery, Emails, Evidence, Federal Judges, Federal Rules of Discovery, Federal Rules of Evidence, Forensic Evidence, Judges, Legal Forms, Legal Technology, Native Format

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A Guide to Forms of Production, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2014/05/19/a-guide-to-forms-of-production/

Craig Ball’s Lawyers’ Guide to Forms of Production! Although Mr. Ball says there is much he wants to re-organize and rewrite, I can’t wait to dive in.  You will find the hyperlink to the Guide when you go to the web site. Thank you, Craig Ball! -CCE

Semiannually, I compile a primer on some key aspect of electronic discovery.  In the past, I’ve written on computer forensics, backup systems, metadata and databases. For 2014, I’ve completed the first draft of the Lawyers’ Guide to Forms of Production, intended to serve as a primer on making sensible and cost-effective specifications for production of electronically stored information.  It’s the culmination and re-purposing of much that I’ve written on forms heretofore, along with new material extolling the advantages of native and near-native forms.

Reviewing the latest draft, there is much I want to add and re-organize; accordingly, it will be a work-in-progress for months to come.  Consider it a “public comment” version.  The linked document includes exemplar verbiage for requests and model protocols for your adaption and adoption.  I plan to add more forms and examples. . . .

Social Media Is Admissible Evidence, But Must Be Authenticated.

16 Sunday Mar 2014

Posted by in Admissibility, Authentication, Discovery, Evidence, Relevance, Social Media

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Social Media Sleuths Find Evidence, But Admissibility Requires Authentication, by Dave Stafford, The Indiana Lawyer.com

http://perma.cc/N638-D84L

What happens on Facebook stays on Facebook – forever – and attorneys conceivably run into risk if they fail to investigate pertinent posts, a judge suggested during a recent presentation about social media evidence. . . .