IRS Says It Did Not Back Up Email, But Relied on Employees To Archive Email On Personal Computers.

17 Tuesday Jun 2014

Posted by Celia C. Elwell, RP in Depositions, E-Discovery, Emails, Government, Internal Revenue Service, Legal Technology, Litigation Hold, Microsoft Office, Outlook, PC Computers, Preservation, Requests for Production

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Computer Backups, Computer Crash, Disaster Preparedness, Emails, Evidence, IRS, Lois Lerner, Outlook, POLITICOPro, Rachel Bade, Ways and Means

GOP: IRS Lost More Emails In Tea Party Affair, by Rachel Bade with contributions by Josh Gerstein and Brian Faler, POLITICOPro

http://tinyurl.com/k9ycgz6

This did not catch my eye because of the politics or that the involved party is the IRS. I was simply in awe that anyone in this day and age of litigation holds and e-discovery could – with a straight face – claim to have irretrievably lost so much computer data. -CCE

Republicans on Tuesday charged that the IRS has lost emails of a half dozen of its employees involved in the tea party targeting controversy, including a top aide to the now-fired acting IRS commissioner.

In addition to losing two years’ worth of emails sent and received by Lois Lerner, the central figure in the scandal, the IRS ‘cannot produce records from six other IRS employees involved in the targeting of conservative groups,’ Ways and Means Republicans said in a release.

* * *

Ways and Means does not say how the emails went missing or what time specific time periods are involved, though they say it includes the period at issue. In the case of Lerner, for example, her archived emails between 2009 and 2011 were washed away in a 2011 computer crash, the agency says.

* * *

The IRS says that at the time they did not keep records of or back up all emails. Rather, they relied on employees to archive them on their personal computers after they ran out of storage space in their Outlook inboxes. . . .

8th Circuit Motions of Limine and Offers of Proof.

07 Saturday Jun 2014

Posted by Celia C. Elwell, RP in Appellate Law, Evidence, Legal Analysis, Legal Writing, Motions, Motions in Limine, Rule 103

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Eighth Circuit, Evidence, EvidenceProf Blog, Federal Rules of Evidence, Legal Writing, Motion in Limine, Offer of Proof, Rule 103

Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling, by Colin Miller, Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pk2vzlt

As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative. . . .

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

19 Monday May 2014

Posted by Celia C. Elwell, RP 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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Adobe Acrobat, Ball in Your Court, Bates Numbering, Craig Ball, Databases, E-Discovery, E-Mail, ESI, Evidence, Lawyers' Guide to Forms of Production, Native Format, Redaction

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. . . .

Deposition Objections – How To Make And Defend Them.

18 Sunday May 2014

Posted by Celia C. Elwell, RP in Attorney-Client Privilege, Depositions, Discovery, Evidence, Objections

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Depositions, Evidence, Lawyerist Blog, Objections, Susan Minsberg

Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog (with hat tip to Evan Schaeffer!)

http://lawyerist.com/16801/proper-deposition-objections/

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .

Rhode Island Supreme Court Has No Problem With Impeachment.

11 Sunday May 2014

Posted by Celia C. Elwell, RP in Assault, Criminal Law, Evidence, Impeachment, Rhode Island Supreme Court

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Assault, Character Evidence, Colin Miller, Conviction, Evidence, EvidenceProf Blog, Impeachment, Motion in Limine, Police, Resisting Arrest, Rhode Island Supreme Court

Impeachable?: Supreme Court of Rhode Island Finds No Problem With Impeachment Via Old, Similar Conviction, Editor: Colin Miller, EvidenceProf Blog

http://bit.ly/1oEpyhi

[S]o, assume that a defendant is charged with resisting arrest, and the trial is held in 2012. Also, assume that the defendant has the following convictions: assault on a police officer (1987), a 1982 assault on a police officer (1982), and simple assault (1982). If the defendant files a motion in limine, seeking to preclude the prosecution from introducing evidence of these convictions into evidence, how should the court rule? . . . .

U.S. Supreme Court Amends Four Hearsay Evidence Rules.

05 Monday May 2014

Posted by Celia C. Elwell, RP in Court Rules, Evidence, Rule 801, Rule 803 Exception

≈ 1 Comment

Tags

Colin Miller, Evidence, EvidenceProf Blog, Hearsay Evidence, U.S. Supreme Court

Four Amendments: Supreme Court Amends Four Federal Rules of Evidence, by Evidence ProfBlogger, Editor: Colin Miller, EvidenceProf Blog

http://bit.ly/1ifPnD6

The Supreme Court has approved four amendments to the Federal Rules of Evidence that will take effect on December 1, 2014 unless Congress takes another action. The Rules altered? Federal Rule of Evidence 801(d)(1)(B) and Federal Rules of Evidence 803(6), (7), and (8).

Is Double Hearsay in 911 Call Admissible Evidence?

26 Saturday Apr 2014

Posted by Celia C. Elwell, RP in Court Rules, Evidence, Hearsay, Trial Tips and Techniques

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911, Colin Miller, Double Hearsay, Evidence, Evidence Rule 805, EvidenceProf Blog, Hearsay, Sexual Assault

Rescue 911: Court of Appeals of South Carolina Grapples With Double Hearsay Issue, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/le3j6kf

Similar to its federal counterpart, South Carolina Rule of Evidence 805 provides that

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

So, assume that a daughter reports to her mother that she was sexually assaulted and that the mother then calls 911 and relays what her daughter told her. Should the 911 call be admitted? According to the Court of Appeals of South Carolina in State v. Hendricks, 2014 WL 1614844 (S.C.App. 2014), the answer is ‘no.’ . . . .

How Not To Do E-Discovery.

15 Tuesday Apr 2014

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Litigation Hold, Preservation, Sanctions

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Back up tapes, E-Discovery, e-Discovery Team®, E-Mail, Evidence, Failure to Preserve, Ralph Losey, Sanctions

Fears and Loathing (and Pain) in Seattle: a Case Lesson in How NOT to Preserve and Produce Email – Part One, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/l8ujksu

If e-discovery is part of your life, you need to read this blog. Ralph Losey is not the only expert showcased here, but he is definitely one of the best. E-discovery is an area of law that is constantly evolving. If you do not work in it frequently, it is easy to get lost. Blogs such as these will help. -CCE

A recent case in Seattle provides a text-book example of how not to do e-discovery. It concludes with a sanctions order against the defendant, and the defendant’s law firm, Payne & Fears LLP. The law firm was fined $10,000, payable to the court, due to the conduct of two of its attorneys. The defendant, Corinthian Colleges, was fined another $25,000. Knickerbocker v Corinthian Colleges, Case No. C12-1142JLR, (WDWA, April 7, 2014). . . .

Using Animation At Trial.

12 Saturday Apr 2014

Posted by Celia C. Elwell, RP in Evidence, Exhibits, Jury Persuasion, Legal Technology, Litigation, Presentations, Trial Tips and Techniques

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Animation, Dr. Ken Broda-Bahm, Evidence, The Persasive Litigator, Trial Tips and Techniques

Animate: Give Your Jurors Three Dimensions, or More, by Dr. Ken Broda-Bahm, The Persasive Litigator

http://tinyurl.com/m75du78

[I]In trial, we know that demonstrative exhibits are often seen as playing a secondary role: second to evidence and second to the verbal explanation. The higher-end animations, however, are often an even more distant second (or third, or fourth) to exhibits that can be created more simply or more cheaply. Understanding that not all, or even most, cases will be able to afford or to merit the higher-end demonstrative animations, it is still worth it to pay attention to the state of the art and to think about how this technology can be brought to bear when it matters most. The good news is that creating sophisticated graphics is easier and cheaper than it has ever been before. Laptops now surpass what the best production workstations could have created in earlier times. A skilled computer animator can take an idea from design to execution in less time and expense than you might think. . . .

Take 4 on A New Theory of Hearsay.

23 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Evidence, Hearsay, Rule 803 Exception, Rule 807

≈ 2 Comments

Tags

Colin Miller, Evidence, Evidence ProfBlogger, Federal Rules of Evidence, Hearsay, Jeffrey Bellin, Rule 403, Rule 803, Rule 807, United States v. Boyce

A New Theory of Hearsay, Take 4: Further Thoughts on United States v. Boyce, by Colin Miller, Editor, EvidenceProf Blogger

http://tinyurl.com/mfgkmzr

It’s interesting that Jeff [Jeffrey Bellin] posted an entry about Judge Posner’s concurrence in United States v. Boyce yesterday [February 14, 2014]. My latest set of hearsay posts has come in connection with a CLE I’m conducting in which I argue, in essence, that Rule 807 should swallow much of Rules 801 through 806. So, it’s refreshing to see that such an esteemed jurist apparently holds a similar viewpoint. Here are some more thoughts on Boyce:

United States v. Boyce is a garden variety case in which a 911 call was admitted under the present sense impression to the rule against hearsay (Federal Rule of Evidence 803(1)) and/or the excited utterance exception (Federal Rule of Evidence 803(2)). They also again raise the question of why courts are not engaging in a Rule 403 balancing of such statements. . . .

How To – Investigating Traffic Accidents.

22 Saturday Mar 2014

Posted by Celia C. Elwell, RP in Damages, Evidence, Forensic Evidence, Litigation, Motor Vehicle, Personal Injury, Product Liability, Uninsured Motorist

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Car Accident, Dick Warrington, Documentation, Evidence, Evidence Collection, Fender Bender, Forensic Evidence, Forensic Magazine, High Speed Chase, Personal Injury, Product Liability, Traffic Accidents

Evidence Collection in a Traffic Investigation, by Dick Warrington, Forensic Magazine

http://tinyurl.com/nko5m2s

This post is an excerpt from Mr. Warrington’s post, Investigating the Fender Bender (http://tinyurl.com/o979zk5). I recommend it, and the links to more information on this subject that you will find at the end of the post. -CCE

Most of the time traffic accidents are fairly standard—the typical fender bender where one person runs into another. The officer on duty responds, assesses the situation, and completes the proper paperwork. But sometimes officers deal with much more serious, complex situations. Dealing with a hundred car pile-up, for example, is quite challenging, since it’s like carrying out multiple investigations simultaneously. When responding to multiple car accidents, hit and runs, fatalities, and high speed chases, officers can benefit by calling in Crime Scene Officers to assist with the investigation.

Because this type of case usually involves extensive damage to property, serious injuries, and/or fatalities, lawsuits will likely result. Questions of liability, product failure, etc. will also come up. Given these facts, it’s important to work together to conduct a thorough investigation. Since the CSO’s responsibilities include documentation, evidence identification, and evidence collection, we’ll look at each of those areas. . . .

Social Media Is Admissible Evidence, But Must Be Authenticated.

16 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Admissibility, Authentication, Discovery, Evidence, Relevance, Social Media

≈ 5 Comments

Tags

Dave Stafford, Discovery, Evidence, Facebook, Judge David Shaheed, Judge Tanya Walton Pratt, Lyn Mettler, Marion Superior Court Master Commissioner David Hooper, Relevancy, Social media, Step Ahead Social Research, The Indiana Lawyer.com

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. . . .

8th Circuit Decision Raises Evidence Questions.

16 Sunday Mar 2014

Posted by Celia C. Elwell, RP in Appellate Law, Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Assault, Speker evidence

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Child Molestation, Criminal Law, Evidence, Federal Rules of Evidence, Rule, Rule 403, Rule 412, Rule 413, Rule 414, Sexual Abuse, Sexual Assault, Speker evidence

Reversal of Fortune: Should Suspects be Able to Introduce Reverse 413/414 Evidence?, by Colin Miller, Editor, Evidence Prof Blogger

http://perma.cc/V3UM-C98B

[I]n United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence? . . . .

Craig Ball On Being A Digital Forensic Witness.

03 Monday Mar 2014

Posted by Celia C. Elwell, RP in Affidavits, Cross-Examination, Depositions, Direct Examination, Discovery, E-Discovery, Evidence, Exhibits, Expert Witness Report, Expert Witnesses, Experts, Forensic Expert Witness, Hearsay, Legal Technology, Legal Writing, Trial Tips and Techniques

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Affidavits, Ball In Your Court Blog, Craig Ball, Depositions, E-Discovery, Evidence, Expert Witness Report, Forensic Expert Witness, Trial Tips & Techniques

Becoming a Better Digital Forensics Witness, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/kgm8epj

I love to testify—in court, at deposition, in declarations and affidavits—and I even like writing reports about my findings in forensic exams.

I love the challenge—the chance to mix it up with skilled interrogators, defend my opinions and help the decision makers hear what the electronic evidence tells us. There is a compelling human drama being played out in those bits and bytes, and computer forensic examiners are the fortunate few who get to tell the story. It’s our privilege to help the finders of fact understand the digital evidence.[1]

This post is written for computer forensic examiners and outlines ways to become a more effective witness and common pitfalls you can avoid. But the advice offered applies as well to almost anyone who takes the stand. . . .

. . .

A New Theory of Hearsay – Part 2.

11 Tuesday Feb 2014

Posted by Celia C. Elwell, RP in 1st Circuit Court of Appeals, Admissibility, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses

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Colin Miller, Criminal Defendants, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rule of Evidence, Hearsay, Hearsay Exception, Impeach, Nonhearsay Purpose, Rule 609

A New Theory of Hearsay, Take 2: Rule 609(a)(1)(B) & Statements Offered For a Nonhearsay Purpose, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog

http://tinyurl.com/m8pcyw8

Dan is on trial for aggravated battery. He has a prior conviction for aggravated battery. After Dan testifies, the prosecution seeks to impeach him through evidence of his five year-old conviction for armed robbery. To be admissible, the evidence cannot simply satisfy Federal Rule of Evidence 403; instead, pursuant to Federal Rule of Evidence 609(a)(1)(B), the prosecution must affirmatively prove that the probative value of the conviction outweighs its prejudicial effect.

A defendant calls an alibi witness at trial. After the alibi witness testifies on direct examination, the prosecution seeks to impeach him with evidence of a prior inconsistent statement that tends to incriminate the defendant. The prior statement is hearsay and only admissible to impeach that alibi witness, not to prove the truth of the matter asserted. My question today is: Should courts apply the same modified Rule 403 analysis that they would apply in the case above?

A New Theory of Hearsay – Part 1.

11 Tuesday Feb 2014

Posted by Celia C. Elwell, RP in Admissibility, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses

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Character Evidence, Colin Miller, Evidence, Evidence ProfBlogger, EvidenceProf Blog, Federal Rules of Evidence, Hearsay, Hearsay Declarant, Hearsay Exceptions, Objections, Witness

A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog

http://tinyurl.com/m6fchaq

Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is ‘unavailable.’ As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule 403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?

Authenticating Electronic Evidence Not Always As Straightforward As It Seems.

11 Saturday Jan 2014

Posted by Celia C. Elwell, RP in Admissibility, Emails, Evidence, Legal Technology, Texas Supreme Court, Trial Tips and Techniques

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Colin Miller, Electronic Evidence, Email, Evidence, EvidProf Blog, Texas Court of Appeals

You’ve Got Mail: Court of Appeals of Texas Finds Alleged E-Mail From Victim’s Mother Improperly Authenticated, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/q8avp97

There are many ways to authenticate electronic evidence. But this, says the Texas Court of Appeals, is not one of them. -CCE

Increase Credibility With The Court By Writing Accurate Facts And Law.

18 Wednesday Dec 2013

Posted by Celia C. Elwell, RP in Brief Writing, Citations, Discovery, Evidence, Legal Writing, Motions

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(Lady) Legal Writer, Brief Writing, Evidence, Legal Writing, Megan E. Boyd

Commandment #7–Don’t “Fudge” the Facts or the Law, by Megan E. Boyd, (Lady) Legal Writer

http://tinyurl.com/n6qmvqe

Ms. Boyd excels at explaining how to present facts and applicable law to your client’s best advantage. She reminds us to use citations to depositions, discovery responses, and other resources to emphasize credibility, a detail sometimes overlooked. Definitely worth a read. – CCE

No Whining in Opening Argument.

13 Friday Dec 2013

Posted by Celia C. Elwell, RP in Evidence, Making Objections, Opening Argument, Trial Tips and Techniques

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Demonstrative Exhibits, Dr. Ken Broda-Bahm, Evidence, Objections, Opening Argument, Persuasive Litigator, Trial Tips & Techniques

Don’t Whine About ‘Argumentative’ Demonstratives (and Argue Back Against Whiners), by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/kb35ho4

Craig Ball Answers His Mail.

06 Friday Dec 2013

Posted by Celia C. Elwell, RP in E-Discovery, Emails, Evidence, Forensic Evidence, Legal Technology, Metadata, Trial Tips and Techniques

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Ball in Your Court, Craig Ball, E-Discovery, Email, ESI, Evidence, Metadata, Native Format

Good Questions!, by Craig Ball, Ball in Your Court Blog

http://ballinyourcourt.wordpress.com/2013/12/06/good-questions/

As always, Craig Ball delivers. Great answers to e-discovery terminology and best practices. -CCE

Email Preservation of Gmail Can be Tricky and Tedious, But Not Difficult.

17 Sunday Nov 2013

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Emails, Evidence, Trial Tips and Techniques

≈ Comments Off on Email Preservation of Gmail Can be Tricky and Tedious, But Not Difficult.

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Ball in Your Court, Craig Ball, Discovery, E-Discovery, Evidence

Collecting Gmail for Preservation, by Craig Ball, Ball in Your Court Blog

http://tinyurl.com/mcynpsl

As Mr. Ball points out in this excerpt below, Gmail preservation is tedious, but not difficult:

[T]hough collecting and validating the complete contents of a Gmail account can be tricky and tedious, it’s not all that difficult to do. Happily, unless you do something really dumb, it’s unlikely that even a botched Gmail collection effort will harm the contents of the account.