Divorce Cases and E-Discovery - media.straffordpub.com

Divorce Cases and E-Discovery Locating, Obtaining, Introducing and Restricting Admission of Electronic Evidence

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WEDNESDAY, FEBRUARY 27, 2013

Presenting a live 90-minute webinar with interactive Q&A

Jessica Hall Janicek, Attorney, KoonsFuller, Southlake, Texas

Heather L. King, Partner, KoonsFuller, Southlake, Texas

Honorable Scott Beauchamp, Associate Judge, 301st District Court, Dallas

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February 27, 2013

Electronic Discovery

6

Federal Rules of Civil Procedure

✤ Applicable Sections

✤ 16, 26, 29, 30, 31, 33, 34, 36, 37 and 45

7

Obtaining Information in Electronic or Magnetic Form

Requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced (Rule 34).

Rule 34 allows requesting party to choose format for production.

8

Sources of Electronic Data

✤ Computers (desktop or laptop)

✤ Hard drives or personal backups

✤ Removable media devices (floppy discs, tapes, CDs, ZIP drives)

✤ Optical discs

✤ Network storage (hard discs, remote internet storage or backups)

✤ Portable media (PDAs, cell phones, camera phones, iPods, iPads, MP3 Players, Tablets)

✤ Internet Service Providers and other types of computer systems

9

Common Data Types in Divorce Cases

✤ Voice Transmissions

✤ Audio tape

✤ Cell phones

✤ Voicemail

✤ Video messaging

10


✤ Mobile Devices (PDAs, Cell Phones, Tablet devices)

✤ Calendars

✤ Text messages (SMS/MMS)

✤ Notes

✤ Digital photos

✤ Address books

11


✤ Computer Generated Data

✤ Spreadsheets

✤ Computer simulation

✤ Emails

✤ Information downloaded from GPS devices

12


✤ Video Transmissions

✤ Cell phones

✤ Computers and web cameras

✤ VHS

✤ Surveillance cameras

✤ Video cameras

✤ Internet accounts (YouTube, etc.)

13

Other Types of Data

✤ Active/Online data

✤ Near-line data

✤ Archival or backup data

✤ Data on backup tapes

✤ Erased or damaged data

✤ Hidden data or metadata

14

What is Metadata?

✤ Metadata is data about data

✤ Noteworthy examples

✤ Change tracking, document revision

✤ Cell comments (Excel)

✤ Hidden text

✤ Could contain privileged information

15

16

Removing Metadata

Google “office find and remove hidden metadata”

17

Native Electronic Format

Refers to the file format which the application works during creation, edition, or publication of a file.

18

RFP Introductory Language

It shall include any data or electronic media stored in any computer system. Request is specifically made that data produced on a CD-ROM disc or flash drive in a version readable under Windows XP or higher, Windows Vista or higher, Notepad, or Wordpad.

19

RFP Introductory Language (cont.)

Request is made that you specify the said program under which the data may be accessed. In the event that the data cannot be produced in a form readable under one of the said programs specified above, request is made that said data be printed and be produced in a printed form.

20


“Item”, “document”, or “documents” also pertains to any data or electronic media including, but not limited to, electronically stored data on magnetic or optical storage media (such as hard drives, backup tapes, CD-ROMs, Zip drives, floppy drives, or cloud storage) as an “active” file or files (readily readable by one or more computer applications or forensics software);

21


Any “deleted” but recoverable electronic files on said media; any electronic file fragments (files that have been deleted and partially overwritten with new data); and slack (data fragments stored randomly from random access memory on a hard drive during the normal operation of a computer [RAM slack] or residual data left on the hard drive after new data has overwritten some but not all of previously stored data).

22


It shall include any data or electronic media stored in any computer system. “Computer” or “Computer system” shall include, but is not limited to network servers, desktops, laptops, notebook computers, employees’ home computers, mainframes, the PDAs of [party name] and its employees (personal digital assistants, such as PalmPilot, and other such handheld computing devices), iPhones, iPads, Tablets, digital cell phones and pagers.

23


Request is specifically made that said data be produced on a CD-ROM disc or DVD in a version readable under Windows XP or higher, Windows Vista or higher, Windows Notepad or Windows Wordpad. Request is made that you specify the said program under which the data may be accessed. In the event that the data cannot be produced in a form readable under one of the said programs specified above, request is made that said data be printed and be produced in a printed form.

24

RFP Example

All letters and correspondence, including electronic writings (for example, including, but not limited to, e-mail, text messages, instant messages, google chats or facebook messages), between WIFE and any of your agents or employees, whether that person or persons is employed directly by you or by an entity in which you own or claim to have owned or claimed an interest that are in your possession or in the possession of any of your agents or employees.

25

RFP Example

For the relevant time period to the present, all documents, correspondence, electronic writings, or other written memoranda, printouts, and screen shots pertaining to any social networking site where you have or have had an account or membership, including but not limited to twitter.com, myspace.com, match.com, eharmony.com, perfectmatch.com, Yahoo Personals, true.com and facebook.com.

26

RFP Example

Produce any and all voice messaging records including but not limited to caller message recordings, digital voice recordings, interactive voice response unit (IVR/VRV) recordings, unified messaging files, and computer-based voice mail files to or from [specified parties] for the period _____ to _____.

27

RFP Example

Produce any and all information related to newsgroups or chat groups, including but not limited to names and passwords for each and every service, newsgroup messages, text files and programs used to access messages.

28

Interrogatories

29

Interrogatories

✤ Number each party is permitted governed by stipulation, court order, or statute.

✤ Parties are generally limited to 25

✤ FRCP 33(a)(1).

30

Discrete subparts

✤ Each discrete subpart of an interrogatory is considered a separate interrogatory

✤ 33(a)(1)

✤ What is a discrete subpart?

✤ Most district courts ask whether the particular subparts are logically or factually related to the primary question. Madison v. Nesmith, No. 9: 9:06-CV-1488 ; 2008 WL 619171, at *3 (N.D.N.Y. Mar. 3, 2008)

31

Objections

The subparts contained herein ask for information logically and/or factually related to the primary interrogatory, therefore, an objection to any interrogatory herein under FRCP 33(a)(1) is not permissible.

32

More on Interrogatories

If the answer to an interrogatory may be derived or ascertained from a party’s business records, including electronically stored information, the responding party may answer the interrogatory by specifying and, if applicable, producing the records or allowing the other party to inspect and copy the records. (FRCP 33(d)).

Specifically applies to ESI.

33

Explaining it to your client

✤ Interrogatories are a form of formal written discovery you have a right to send to your spouse

✤ Purpose is to gain information that will assist you in evaluating settlement offers and preparing for trial

✤ This type of discovery is done in the normal course of business in most contested divorces

34

Explaining it to your client Sending Interrogatories

✤ Keeping in mind we only have 25...

✤ Look for questions you already know the answer to, or don’t care about the answer to (to delete or modify the question)

✤ Look for any questions that have not been asked (to add or find an alternative method to have the question answered)

✤ Advise me of any concerns you have about sending the discovery

35

Explaining it to your client Answering Interrogatories

✤ You are under oath

✤ Tell us if you...

✤ Don’t know the answer

✤ Can’t find the answer

✤ Think it will take longer than the deadline to find the answer

✤ Don’t know the answer, but your spouse does

✤ Can’t remember (Never Guess!)

36

Explaining it to your client Answering Interrogatories

✤ If you don’t want to answer the question

✤ Tell us why not, and tell us the answer

✤ We will decide if there is a legal objection that might protect you from answering the question, or limit your answer, but we can’t unless we know the full answer

✤ If you don’t understand the qustion

✤ Send us an email and tell us; we’ll respond to explain

37

Objections

38

Objections

Respondent specifically asserts Objections ___________ as set forth in the Key to Objections herein above, and without waiving said objection or Respondent’s right to present related evidence at trial, Respondent answers in part as follows:

39

Response

Inspection and copying of the requested documents not previously produced will be permitted and are attached herewith.

40

Respondent further incorporates in full as if fully set forth at length herein verbatim any and all information requested by this discovery which information has been provided in response to any other discovery responses provided by Respondent in this cause, including without limitation, Responses to Disclosure, Answers to Interrogatories, Production, Inventory and Appraisements, and Depositions made formally or informally in any manner, including being placed in evidence at hearing of this matter, prior or subsequent to the filing of this response or any amended or supplemental response hereafter.

41

Initial Disclosures—Rule 26

✤ Rule 26(1)

✤ Unlike some states, no initial request required to start this process.

✤ Requires “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment”

42

Initial Disclosures—Rule 26 (cont.) ✤ Rule 26(f)

✤ When is initial disclosure sent?

✤ Generally within 14 days of the Rule 26(f) conference, unless a different time is set by stipulation or court order, or unless a party objects during the Rule 26(f) conference that initial disclosures are inappropriate.

43

Initial Disclosures—Rule 26 (cont.) ✤ Rule 26(f)

✤ What happens at the initial discovery meeting?

✤ All parties are required to sit down together before the discovery process begins and agree on a discovery protocol.

✤ Issues of privilege, spoliation, and obtaining and delivering ESI are involved in this meeting.

✤ Failure to participate can result in sanction under Rule 37(f).

44

Other Methods of Discovering Electronic Evidence

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, ELECTRONIC PROTECTIVE ORDER AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE

TEMPORARY RESTRAINING ORDER, ELECTRONIC PROTECTIVE ORDER, AND ORDER ON EMERGENCY MOTION TO GAIN ACCESS TO IPAD AND IPHONE

45

Who Pays for ESI?

Zubulake

✤ As long as data is accessible, responding party bears the costs.

✤ When data becomes inaccessible, a cost-shifting analysis is applied, and the parties share the costs.

46

What Types of Data Are “Inaccessible” Under Zubulake?

✤ Online Data (hard disks)

✤ Near-line Data (optical disks)

✤ Offline Storage (magnetic tapes)

✤ Backup Tapes [INACCESSIBLE]

✤ Fragmented, Erased, and Damaged Data [INACCESSIBLE]

47

Cost Shifting Test Under Zubulake

✤ The extent to which the request is specifically tailored to discover relevant information;

✤ The availability of such information from other sources;

✤ The total cost of production, compared to the amount in controversy;

✤ The total cost of production, compared to the resources available to each party;

✤ The relative ability of each party to control costs and its incentive to do so;

✤ The importance of the issues at stake in the litigation; and

✤ The relative benefits to the parties of obtaining the information.

48

Spoliation Letters

✤ The “litigation hold”

✤ Instruct to preserve

✤ Preserve both paper and electronic form

✤ Include the length of time for the hold

✤ Any specific information necessary

49

Spoliation (cont.)

✤ Zubulake (sanctions for the destruction of evidence)

✤ FRCP Rule 37 (codifies Zubulake):

✤ “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

50

51

52

53

54

55

56

57

58

Facebook Subpoena

59

Facebook Subpoena

60

Other Social Media Subpoenas (AOL)

61

Other Social Media Subpoenas (Craigslist)

62

Other Social Media Subpoenas (MySpace)

63

Why Facebook has changed the

face of divorce

64

65

Tell your kids about your divorce before you post to Facebook!

66

More Facebook Fails

67

Text Messages

✤ Most carriers keep content for only mere hours

✤ Example:

✤ ATT—Does not retain content

✤ Verizon—3 days

✤ Sprint—Does not retain content

✤ T-Mobile—Does not retain content

68

Electronic Evidence

69

LORRAINE V. MARKEL AMERICAN INS. CO, 241 F.R.D. 534, (D. Md. 2007)

70

PREQUISITES TO ADMISSIBILITY OF ESI

Relevant

Authentic

Hearsay

Original or Duplicate

Probative Value vs. Unfair Prejudice

71

EMAILS

U.S. v. Safavian, 435 F. Supp. 2d 36 (U.S. D.C. 2006)

CERTAIN EMAILS ARE NOT HEARSAY

Statements attributable directly to the sender (party) are admissions by party opponent. TRE 801(e)(2)

Where it is demonstrated that the contents of the emails indicate that sender (party) manifested an adoption or belief in the truth of the statements of other people as he forwarded their emails – these emails are adoptive admissions. TRE 801(e)(2)(B)

72

U.S. V. SAFAVIAN, 435 F. SUPP. 2D 36 (U.S. D.C. 2006) EMAILS SHOWED STATE OF MIND OF PARTY AT THE TIME HE RECEIVED THEM OR AT SOME LATER TIME. TRE 803(3) EMAIL NOT HEARSAY BECAUSE NOT INTRODUCED TO PROVE THE TRUTH OF THE EMAIL’S CONTENTS. IT IS THE FACT OF THE DISCUSSIONS, RATHER THAN THE CONTENT (OR THE TRUTH OR ACCURACY THEREOF) THAT IS BEING OFFERED. AN INQUIRY IS NOT AN ASSERTION OF THE TRUTH AND CANNOT BE A HEARSAY STATEMENT.

73

Non-hearsay work” emails

Emails containing an imperative statement giving instructions, how to do something – are not offered to prove the truth of the matter asserted.

“Let’s do a meal so we can start getting business ideas moving”

Emails containing explicit or implicit requests for assistance.

“Do you know if that is doable, and how?”

Emails soliciting an opinion.

“What do you think about this?”

U.S. V. SAFAVIAN, 435 F. SUPP. 2D 36 (U.S. D.C. 2006)

74

Co-conspirator Hearsay Exception Theory. TRE 801(e)(2)(E)

In determining whether a conspiracy existed and whether both the defendant and the declarant participated in it, hearsay is admissible, so long as it does not exclusively rely on the co-conspirator statements.

75

CHAT ROOM LOGS

Criminal defendant complained of trial court’s admission of chat room logs b/c the logs were incomplete and undetectable material alter-ations could have been made.

76

The creator of the logs explained how they were created.

That the printouts were complete and accurate (accuracy goes to weight, not admissibility)

Connection was established between Defendant and print outs (it was his screen name, and at a meeting scheduled with that screen name, he showed up).

U.S. v. Tank, 200 F.3d 627.

77

EMAIL AUTHENTICATED BY DISTINCTIVE CHARACTERISTICS

Verkonyi v. State, 276 S.W.3d 27 (Tex. App. – El Paso 2008)

TRE 901(a) says that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what it’s proponent claims.

TRE 901(b) includes a list of non-exhaustive examples

78

VERKONYI V. STATE, 276 S.W.3D 27 (TEX. APP. – EL PASO 2008)

TRE 901(b)(4)

Distinctive characteristics and the like. Appearance, content, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.

An email is properly authenticated if its appearance, contents, substance, or other distinctive characteristics, taken in conjunction with the circumstances, support a finding that the document is what the proponent claims.

79

EMAIL AUTHENTICATED BY REPLY LETTER DOCTRINE

Verkonyi v. State, 276 S.W.3d 27 (Ct. App. – El Paso 2008)

A letter (email) received in the due course of mail (email) purportedly in answer to another letter (email) is prima facie genuine and admissible without further proof of authenticity.

A reply letter (reply email) needs no further authentication because it is unlikely that anyone other than the purported writer would know and respond the contents of the earlier letter (email) addressed to him.

80

WEBSITE

Breach of Contract.

Defendant attempted to put in evidence recording and writing from its website.

Attested true and correct copy of company overview printed from website and excerpts from news interview on website.

81

Didn’t establish the website was that of the Defendant.

“Most anyone can create a website”

It may be arguable that most information found on the internet is what it purports to be, “we cannot assume that all of it is.”

Burnette Ranches v. Cano Petroleum, 289 S.W.3d 862 (Ct. App. – Amarillo 2009).

OUT

82

Jessica Hall Janicek KoonsFuller [email protected] Heather L. King KoonsFuller [email protected] Honorable Scott Beauchamp 301st District Court [email protected]

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Divorce Cases and E-Discovery - media.straffordpub.com