HADDAD’S CIVIL TRIAL WEBBOOK

Judge William J. Haddad (Ret.)

Introducing Electronic Evidence

E-Discovery

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Introducing Electronic Evidence

 Hon. William J. Haddad

[Presented to The Tort Law Section of ther Illinois State Bar Association –“Technology to Know Now in Tort Litigation – INTRODUCING ELECTRONIC EVIDENCE. Friday, April 27, 2012]

Introduction

Electronic evidence has been broadly defined as “any information created or stored in digital form whenever a computer is used to accomplish a task. It may include information databases, operating systems, applications programs, computer-generated models, electronic and voice mail messages and records, emails, faxes, tape recordings or “instructions residing in an electronic medium.

Under the Federal Rules of Evidence, all documentary evidence otherwise found to be relevant must also be authenticated “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” See USCS Fed Rules Evid R 901(a). Authentication must be made through a knowledgeable witness who can identify the authorship as well as the document’s “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” USCS Fed Rules Evid R 901 (b) (4) See also, Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, at 415 (2005).  

Authentication of Electronic Evidence

1.         Emails

Common law methods of authentication include reply doctrine, distinctive characteristics, chain of custody, process or system similar to foundation with faxes. The consideration of authentication of “e-mail” or “electronic mail” began with the telegram. Nineteenth century cases discuss authentication “upon proof of delivery of the message for the purpose of transmission, properly addressed to the correspondent at his place of residence, or where he is shown to have been, a presumption of fact arises that the telegram reached its destination, sufficient at least to put the other party to his denial, and raise an issue to be determined.”  Electronic evidence can be transmitted through private, secure electronic delivery systems that use encryption, codes, and “e-signatures.” Oregon S.S. Co. v. Otis, 100 N.Y. 446; 3 N.E. 485, at 487 (N.Y. 1885); See also Tanner v. Hughes, 53 Pa. 289 (Pa. 1867) and United States v. Babcock, 24 F. Cas. 909, at 910 (1876 U.S. App. – Cir Ct, E.D. Missouri). To some degree, this resembles the enhanced security used with traditional manual delivery systems such as “proof of mailing,” certification, and private messenger services. However, litigants should not ignore Federal Rule 901(b)(9), which requires that the witness describe the “process or system used to produce” computer generated information. Additionally, because “[u]nder any computer storage method, the computer system ‘remembers’ the message even after being turned off,” whether or not the e-mail is eventually printed on paper or saved on the server, it remains an objectively observable and tangible record that such a confirmation exists. In the final analysis, new technology does not require new rules of authentication of e-mails. However, more substantiation for authentication of e-mails may be required where there is a factual basis – not a “mere possibility” – that the document is not what it purports to be. Excerpt from Haddad, Authenticating E-Mail Evidence, Illinois Bar Journal, May 2008.

By way of example, there are two cases mainly dealing with authentication of e-mails in Illinois, People v. Downin, 357 Ill. App. 3d 193 (Ill. App. Ct. 2005) and CCP Ltd. P’ship v. First Source Fin., Inc., 368 Ill.App.3d 476 (Ill. App. Ct. 2006). In Downin the court held that:

“The prosecution need only prove a rational basis upon which the fact finder may conclude that the exhibit did in fact belong to the defendant….The ultimate issue of authorship is for the trier of fact to determine.” People v. Downin, 203-204.

In Downin the court authenticated the e-mails by looking to evidence of recurring exchanges of e-mail messages. Also, the messages contained private information between identifiable parties who later acted in furtherance of the messages with a face to face meeting. By contrast in CCP Ltd. P’ship the court refused to authenticate an e-mail where the author and date of transmission was not identified, and there was “no evidence of an ongoing correspondence that might provide circumstantial evidence of authorship of the message”, even though it was “maintained in the ordinary course of business in [FSFP’s] computer system”. CCP Ltd. P’ship v. First Source Fin., Inc., 368 Ill. App. 3d 476, at 484 (Ill. App. Ct. 2006) 

2.         Text Messages and Fax Documents

“A document may be authenticated by direct or circumstantial evidence. People v. Towns, 157 Ill. 2d 90, 623 N.E.2d 269 (1993). Authorship of a document may include a showing that the writing contains knowledge of a matter sufficiently obscure so as to be known to only a small group of individuals. People v. Chromik, 408 Ill. App. 3d 1028, 1046-1048 (Ill. App. Ct. 3d Dist. 2011). In Chromik, the text messages “mirrored” phone records which corresponded to the date and time of transmission.

A trial court’s decision to admit documentary evidence will not be reversed absent an abuse of discretion. An adequate foundation is laid when a document is identified and authenticated. To “authenticate a document, evidence must be presented to demonstrate that the document   is what its proponent claims.” Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d 242, 247-48 (1991). A finding of authentication is merely a finding that there is sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not preclude the opponent from contesting the genuineness of the writing after the basic authentication requirements are satisfied. People v. Downin, 357 Ill. App. 3d 193 (2005). A document may be authenticated by direct or circumstantial evidence. Authorship of a document may include a showing that the writing contains knowledge of a matter sufficiently obscure so as to be known to only a small group of individuals. Downin, 357 Ill. App. 3d at 203. Factors  that courts use in authenticating writings and other items similarly apply to e-mail messages. Downin, 357 Ill. App. 3d at 203.

People v. Chromik, 408 Ill. App. 3d 1028, 1046-1047 (Ill. App. Ct. 3d Dist. 2011)

Authentication of faxed documents may require additional proof that the machinery was reliable and accurate through evidence describing the process or system which produced result, and that it was properly employed in this case usually through a witness who used it and tracking of documents sent and received. People v. Hagan, 145 Ill. 2d 287, 311 (Ill. 1991)

3.         Statutory authentication and public records.

This may includefoundations for introduction of breathalyzer exam per the Department of Public Health Uniform Standards and public records for driving are authenticated by operation of statute. See. 625 ILCS 5/2-123(g)6  Electronic evidence offered under the public records hearsay exception, however, enjoys a slightly different treatment. Federal Rule of Evidence 902(4) lists “certified copies of public records” as self-authenticating evidence, meaning that documents of this type do not require extrinsic proof of authenticity to be admissible at trial. As a result, the only authentication requirements for electronic evidence offered as a public record are found in the public record exception to the hearsay rule.

4.         Hospital Records and test results are generally admissible in civil proceedings under Supreme Court Rule 236.  If challenged, authentication can be accomplished through classic theories founded upon  “custom, usage, regular course of business” and personal reliance standards. See Knecht v. Radiac Abrasives, Inc. (1991), 219 Ill. App. 3d 979, 986, 579 N.E.2d 1248, 162 Ill. Dec. 434, citing M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 406.1 (5th ed. 1990).

5.         Computer generated printouts.

Electronic records are introduced if sufficient foundation is laid that the electronic computing equipment is recognized as standard, that the particular computer has produced accurate records when properly operated, the entries were made in regular course of business near the time of the event. Grand Liquor v. Dept of Revenue, 67 Ill. 2d 195 (1977) In Estate of Buddeke, 49 Ill App. 3d 431 (1977), the court held it error to allow computer printout of hospital patient’s account without supporting testimony of correctness of figures as to what was used to produce the figures. 

A signature case on authentication of electronic evidence is King v. ex rel Murdock Acceptance Corp., 222 So. 2d 393 (Miss. 1969) (recently cited in the Cumberland Law Review, 34 Cumb. L. Rev. 95, 103), where the Mississippi Supreme Court held admissible several electronic data processing printouts, saying that

Print-out sheets of business records stored on electronic computing equipment are admissible in evidence if relevant and material, without the necessity of identifying, locating, and producing as witnesses the individuals who made the entries in the regular course of business …” if certain authentication requirements are met.

The requirements under King are:

(1)    the electronic computing equipment is recognized as standard equipment; 

(2)    the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded; and

(3)   the foundation testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.

King’s  authentication requirements were nor very demanding and other jurisdictions have since added factors such as (1) the competency of the computer operator, (2) methods of data entries, and (3) mechanical operations of the machinery. 34 Cumb. L. Rev. 95, 103-104

Many courts have circumvented authentication requirements altogether, asking only that the foundation requirements of the applicable hearsay exception be proven. Indeed, at least one court has adopted the position that computer printouts of electronic evidence “have a prima facie aura of reliability.”  Canadyne-Georgia Corp. v. Bank of Am., N.A., 174 F. Supp. 2d 1337, 1343 (M.D. Ga. 2001) (quoting Olympic Ins. Co. v. H.D. Harrison, Inc., 418 F.2d 669, 670 (5th Cir. 1969)). “Computers are so widely accepted and used that the proponent of computer evidence need not prove those two elements of the foundation.” People v. Huehn, 53 P.3d 733, 736 (Colo. Ct. App. 2002)  Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence, 901(b)(9) [02], 901-134 (1990). Judge Weinstein contends:

A computer system with a print-out is no more obscure than a manual computation … . The data is simply stored electronically rather than manually. If the computer has been properly programmed and operated there is less likelihood of error by machine computations than there is by human figuring … . Since there is a chance that the computer output is inaccurate, the person offering computer print-outs in evidence should, in addition to explaining the programming methods used, give a description of the controls used to detect both human and machine errors. This precaution is not required as a foundation for admissibility but as a tactical precaution to forestall any doubt in the trier’s mind.

Others contend that authenticating electronic evidence simply requires that the witness show that the printout is a “correct reflection of what is in the machine, rather than … what is in the machine is correct.” Dean McCormick, McCormick on Evidence, 314 n.6 (Edward W. Cleary ed., 3d ed. 1984).  This reflects the view that courts are becoming increasingly reliant on the trustworthiness of electronic evidence. Original concerns about the authenticity of computer printouts of electronic evidence seem to be waning as courts repeatedly rely solely on the applicable hearsay exception as the foundational requirement to test the admission of electronic evidence. It is generally the burden of the opponents of electronic evidence to offer proof that the proponent’s computer system is fallible in some way.

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Practice Tips on Authentication and Admissibility of Computer Generated Evidence

1.         Challenges to authentication of electronic evidence are mirrored as computer print-outs may include some of these factors:

(1) the competency of the computer operators;

(2) the type of computer used and its acceptance in the field as standard and     

     efficient equipment;

(3) the procedure for the input and output of information, including controls, tests, and checks for accuracy and reliability;

(4) the mechanical operations of the machine; and 

(5) the meaning and identity of the records themselves.

2.         Challenges to authentication of electronic communications, such as e-mails, text messages, and faxes, may include:  

(1) authorship;

(2) authenticity;

(3) content;

(4) reliability of machinery;

(5) transmission and storage; and 

(6) alteration.

Where courts are concerned about alternation, fabrication and reliability, they may require more substantial foundation. However, the mere “possibility of alteration” of an e-mail should not bar its admission “any more than it can be the rationale for excluding paper documents” that are otherwise authenticated. See USCS Fed Rules Evid R 901, Notes of Advisory Committee on Rules and United States v Safavian, 435 F Supp 2d 36,42 (2006, DC Dist Col). Indeed, some Federal Courts have refused to bar authenticated e-mail evidence “absent specific evidence showing alteration”.”  See Haddad, Authenticating E-Mail Evidence, Illinois Bar Journal, May 2008. Be reminded that it is generally the burden of the opponents of electronic evidence to offer proof that the proponent’s computer system is fallible in some way.

3.         Hearsay and its Exceptions

Although the business records exception to hearsay is a  common way to

introduce computer records, other exceptions have been employed. For example, in United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997), the prosecution sought to introduce an e-mail from a Merrill Lynch employee to his supervisor  shortly after talking to the defendant, ending the email with an observation that ‘my mind is mush!”. After failing to introduce the E-mail under the business records exception or the excited utterance exceptions to hearsay, the government was able to introduce it  as a “presence sense impression” exception. Employing these multiple exceptions is a sound trial tactic. However, the most common exception employed to the hearsay objection is the business records exception. See United States v. Hayes, 861 F.2d 1225, 1228 (10th Cir. 1988).

In the final analysis, the most common way to initiate the introduction of computer records is through the business records exception to the hearsay rule. In People v. Huehn, 53 P.3d 733 (Colo. Ct. App. 2002), the defendant was charged with theft from an ATM machine. Evidence of a print-out  indicated the time when the machine was accessed was admitted based upon a technician’s testimony that he obtained the print-out from the ATM during his normal route. The print-out was allowed as a business record to prove the time of the theft. In upholding the admission of the print-out, the Colorado Appeals Court outlined the special foundation requirements that had to be met before electronic evidence of this type could be admitted into evidence as a business record, stating that such evidence would be admissible if:

(1) The computer entries are made in the regular course of business;

(2) Those participating in the record making were acting in the routine course of business;

(3) The input procedures were accurate;

(4) The entries were made within a reasonable time after the transaction involved; and

(5) The information was transmitted by a reliable person with knowledge of the event reported. 

Even more flexible cases can be found to satisfy the foundational requirements for introducing electronic business records. In re Newman, 58 S.W.3d 640 (Mo. Ct. App. 2001),  the Missouri Court of Appeals set out only three foundational requirements for the admission of electronic evidence under the business records exception:

(1)  the custodian or other qualified witness testifies to its identity  and the mode of its preparation;

(2)  it was made in the regular course of business, at or near the time of the act, condition or event; and

(3)  the sources of information, method and time of preparation justified its admission. 

See also, Birkenmeier v. Keller Biomedical, LLC, 312 S.W.3d 380, 386-387 (Mo. Ct. App. 2010)

One  pivotal question is whether the electronic evidence was created for purposes of litigation. Even so, if electronically stored evidence that has been created specifically for trial, it is not considered to have been “prepared for litigation” if the underlying information was stored in the regular course of business. In re Newman, 58 S.W.3d 640 (Mo. Ct. App. 2001)

Conclusion

In the final analysis, new technology does not require new rules of authentication of computer generated, electronic evidence. However, more substantiation for authentication may be required where there is a factual basis—not a “mere possibility”—that the document is not “what it purports to be”. See USCS Fed Rules Evid R 901, Notes of Advisory Committee on Rules and United States v Safavian, 435 F Supp 2d 36,42 (2006, DC Dist Col)

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