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How to Get Hearsay, Emails, Business Records, Social Media and More Into Evidence
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How to Get Hearsay, Emails, Business Records, Social Media and More Into Evidence
Authors
Sean Antone HuntThe Hunt Law Firm
Memphis, TN
Robert J. KasietaKasieta Legal Group, LLC
Madison, WI
Jeffrey O. MeunierJeffrey O. Meunier, Attorney at Law
Carmel, IN
David M PotteigerWalcheske & Luzi, LLC
Brookfield, WI
Brock J. SpechtNichols Kaster, PLLP
Minneapolis, MN
Presenters
SEAN ANTONE HUNT is the owner of the Memphis boutique commercial defense law firm, The Hunt Law Firm, where the two-person law firm brings a unique team format to in-house counsel and business clients for their litigation needs. He practices in the areas of Section 1983 litigation, construction litigation, products liability, personal injury, workers' compensation and insurance defense. Recently, Mr. Hunt has become a Rule 31 trained mediator as well. He is a member of the American, Tennessee, Memphis, and National (Ben F. Jones Chapter) bar associations; the State Bar of Georgia; and The Mississippi Bar. Mr. Hunt is licensed to practice law in Tennessee, Georgia and Mississippi. His firm provides defense for clients all over the state of Tennessee and parts of Mississippi and Georgia. He is currently the chair of the Memphis Bar Association's Technology Section, a member of the Memphis Bar Association's Communications Committee, where he writes the technology column and various other articles for the Memphis Lawyer Magazine. Mr. Hunt earned his B.S. degree, in civil engineering, from Tennessee State University and his J.D. degree from Vanderbilt University Law School.
ROBERT J. KASIETA is the founder of Kasieta Legal Group, LLC, in Madison, Wisconsin. He is a certified civil pretrial and trial specialist by the National Board of Trial Advocates. Mr. Kasieta practices in civil litigation, with an emphasis on plaintiff personal injury and employment cases, as well as commercial litigation. He has written and taught extensively in the areas of trial practice, personal injury law and insurance law, and is an instructor of trial practice at the University of Wisconsin Law School. Mr. Kasieta is admitted to practice before the U.S. Supreme Court, as well as the U.S. Court of Appeals for the 11th Circuit, U.S. Court of Appeals for the 7th Circuit, and all Wisconsin courts. He is a member of the Dane County Bar Association, State Bar of Wisconsin, and the American Association for Justice. Mr. Kasieta earned his B.S. degree, summa cum laude, from Northern Michigan University and his J.D. degree from Marquette University Law School.
JEFFREY O. MEUNIER is a sole practitioner with Jeffrey O. Meunier, Attorney at Law. He limits his civil litigation practice to personal injury, motor vehicle accidents, real estate, contracts, and business and commercial litigation. Mr. Meunier is admitted to practice in Indiana and before the U.S. District Court for the Northern and Southern districts of Indiana. He is a member of the Indianapolis Bar Association and the Hamilton County Bar Association. Mr. Meunier earned his B.A. degree from Indiana University and his J.D. degree from Indiana University School of Law.
BROCK J. SPECHT is a partner with Nichols Kaster, PLLP, in Minneapolis, Minnesota. Mr. Specht has a nationwide practice representing plaintiffs in complex, class-action lawsuits typically brought on behalf of workers, consumers, and retirees. His experience includes successfully representing clients in complex lawsuits in numerous federal courts across the country, in private arbitration, and before administrative agencies. Mr. Specht also has significant appellate experience arguing cases in both state and federal courts of appeals. Prior to joining Nichols Kaster, PLLP, he practiced with a major Minneapolis law firm for several years, representing both individuals and major corporations in nationwide litigation involving a wide variety of substantive areas of law. Mr. Specht's pro bono practice includes multiple appointments as a special assistant state public defender, representing clients before the Minnesota Court of Appeals. He has served as an adjunct professor of law at the University of St. Thomas School of Law, teaching appellate brief writing. Mr. Specht has been repeatedly recognized as a Rising Star and Super Lawyer by Minnesota Super Lawyers. He graduated with his B.A. degree from the University of Minnesota and he earned his J.D. degree, magna cum laude, from the University of St. Thomas School of Law.
I. Tools for Getting Your Evidence Admitted
A. Determining if Evidence is Admissible vs. Inadmissible
1st question: Is the proposed evidence relevant?
Rule 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
(a) the United States Constitution;
(b) the Indiana constitution;
(c) a statute not in conflict with these rules;
(d) these rules; or
(e) other rules applicable in the courts of this state.
Irrelevant evidence is not admissible
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.
B. Interrogatories, RFPs, RFAs and Depositions
Interrogatories:
Rule 33. Interrogatories to Parties
(D) Scope--Use at trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(B), and the answers may be used to the extent permitted by the rules of evidence.
An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion, contention, or legal conclusion, but the court may order that such an interrogatory be answered at a later time, or after designated discovery has been completed, or at a pre-trial conference.
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RFP
Documents and things produced in discovery are subject to the same evidentiary scrutiny as any
other document. The fact that a document has been produced does not self authenticate the
document or ensure its relevance or admissibility.
RFA
Rule 36. Requests for admission
(B) Effect of admission. Any matter admitted under this rule is conclusively established
Depositions
Rule 32. Use of depositions in court proceedings
(A) Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition, by or against any party who had reasonable notice thereof or by any party in whose favor it was given in accordance with any one [1] of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a party, or an agent or person authorized by a party to testify or furnish such evidence or of anyone who at the time of taking the deposition was an officer, director, or managing agent, executive officer or a person designated under Rule 30(B)(6) or 31(A) to testify on behalf of an organization, including a governmental organization, or partnership which is a party may be used by an adverse party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) that the witness is dead; or
(b) that the witness is outside the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(c) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
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(d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(e) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or
(f) upon agreement of the parties.
(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in context to be considered with the part introduced, and any party may introduce any other parts.
Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject-matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
C. Using Judicial Notice
Rule 201. Judicial Notice
(a) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice:
(1) a fact that:
(A) is not subject to reasonable dispute because it is generally known within the trial court’s territorial jurisdiction, or
(B) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(2) the existence of:
(A) published regulations of governmental agencies;
(B) ordinances of municipalities; or
(C) records of a court of this state.
(b) Kinds of Laws That May Be Judicially Noticed. A court may judicially notice a law, which includes:
(1) the decisional, constitutional, and public statutory law;
(2) rules of court;
(3) published regulations of governmental agencies;
(4) codified ordinances of municipalities;
(5) records of a court of this state; and
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(6) laws of other governmental subdivisions of the United States or any state, territory or other jurisdiction of the United States.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
D. Utilizing Affidavits
In most cases affidavits even though sworn are hearsay. Affidavits may be utilized to
authenticate medical or business records.
E. Accumulating Extrinsic Evidence
F. Negotiating and Using Stipulations
A stipulation is a formal legal acknowledgment and agreement made between opposing
parties before a pending hearing or trial. For example, both parties might stipulate to certain facts
and so not have to argue them in court. After the stipulation is entered into, it is presented to the
judge. Use of stipulations at trial are extremely useful to streamline presentation of evidence and
pinpoint issues for trial.
G. Using Motions in Limine
A motion in limine is an evidentiary motion that seeks a determination as to whether to
exclude (or admit) evidence before it is offered at trial. Motion’s in limine are powerful tools to
control what evidence is offered at trial and prevent irrelevant and inadmissible evidence from
being offered and potentially influencing a jury.
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H. Avoiding and Responding to Objections
Preparation, preparation, preparation. Be prepared and anticipate potential objections.
Critically look at your presentation and examine potential objections. If you are prepared to
combat the objection, the Judge will be impressed, and you will have a better chance of
prevailing. Have cases and citations to rules ready.
A trial brief where you address these evidentiary issues can be very helpful to educate the
Judge and to reduce clutter at trial. The less the jury has to watch evidentiary arguments and side
bar conferences the better.
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Hearsay: Common Pitfalls and How to Avoid Them
Submitted by Robert J. Kasieta and David M. Potteiger
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HEARSAY: TOP PROBLEMS AND PITFALLSDAVID M. POTTEIGER
A. Commonly overlooked threshold issues:
1. Hearsay is an out of court statement made to prove the truth of the matter asserted in the
statement.
a. A statement is a person’s oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion. FRE 801(a)
1. Question posed by non-testifying co-defendant to arresting officer following
apprehension of co-defendant, defendant, and others, asking how the police found
them so fast, was an “assertion,” under the hearsay rule; question was an
inculpatory assertion of defendant's participation in the crime, and was not designed
to elicit a response. U.S. v. Summers, 414 F.3d 1287 (10th Cir. 2005).
2. Testimony about an individual's pointing to list was not outside hearsay rule merely
because such individual used no words since the pointing was as much a
“communication” as a statement would have been. U.S. v. Ross, 321 F.2d 61 (2d
Cir. 1963).
b. Nonassertive conduct is admissible whether it is verbal or nonverbal. U.S. v. Perez, 658
F.2d 654 (9th Cir. 1981).
1. Evidence that declarant asked “Is this Kenny?” when police officer called telephone
number displayed on pager recovered from stolen car was not hearsay in carjacking
prosecution; declarant's question could not reasonably be construed to be an
intended assertion, either express or implied. U.S. v. Jackson, 88 F.3d 845 (10th
Cir. 1996).
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2. Markings on map which purportedly traced course of shrimping vessel allegedly
involved in marijuana smuggling conspiracy were not inadmissible hearsay in that
they were not assertions. U. S. v. Groce, 682 F.2d 1359 (11th Cir. 1982).
c. Offered to prove the truth of the matter asserted
1. If significance of out-of-court statement lies solely in fact that it was made, rather
than in veracity of out-of-court declarant's assertion, statement is not hearsay
because it is not offered to prove truth of matter asserted. U.S. v. Cantu, 876 F.2d
1134 (5th Cir. 1989).
2. The significance of the words was that they were said (i.e., that a “verbal act”
occurred) and how they affected McCoy, not the truth-value of what was said.
United States v. Robinzine, 80 F.3d 246 (7th Cir. 1996).
3. A statement offering to sell a product at a particular price is a verbal act, not
hearsay, because the statement itself has legal effect. Cloverland-Green Spring
Dairies, Inc. v. Pennsylvania Milk Marketing Bd., 298 F.3d 201 (3d Cir. 2002).
d. Exclusions from Hearsay
1. On cross-examination
a. Prior inconsistent statements given under penalty of perjury at a trial, hearing,
or other proceeding or in a deposition
b. Prior consistent statement offered to rebut an express or implied charge of
recent fabrication or improper influence/motive
c. Identifies a person as someone previously perceived
1. Statement made by a party opponent
a. Offered against an “opposing” party
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1. The distinctions between “confessions” and “admissions” are subtle and
questionable and admissions should receive the same cautious treatment
accorded confessions. U.S. v. Robinson, 459 F.2d 1164 (Fed. Cir. 1972).
2. Defendant's confession to police officer, “I know I did it. I know I got to
go down. I hit her in the head with an ax. I didn't mean to hit her in the
head with an ax. I meant to hit [another] in the head with an ax,” was
admissible under exception to hearsay rule for admissions by party
opponent. U.S. v. Penass, 997 F.2d 1227 (7th Cir. 1993).
b. Made by a party in an individual or representative capacity
c. Party adopted or believed to be true
1. A statement is attributable to a person, for purposes of admission of out-
of-court statements as nonhearsay admissions by party opponent, when he
or she stands silent in the face of its utterance if the natural response
would be to deny it if untrue. Rahn v. Hawkins, 464 F.3d 813 (8th Cir.
2006).
a. Made by a person authorized to make a statement on the subject
1. In many instances, out-of-court statement of an agent of a party will be
admissible as a vicarious or representative admission of his principal. U. S.
v. Pena, 527 F.2d 1356 (5th Cir. 1976).
2. Fact of agency may not be proved by alleged agent's extrajudicial
statements. U.S. v. Jones, 766 F.2d 412 (9th Cir. 1985).
3. Proponent of admission by party opponent must establish declarant's
competence; office or plant gossip does not become admissible simply
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because it is put into mouth of someone whose statements are not subject to
hearsay objection. Morisseau v. DLA Piper, 532 F.Supp.2d 595
(S.D.N.Y.2008).
e. Was made by a co-conspirator in furtherance of a conspiracy
B. Common mistakes attorneys make with respect to hearsay:
1. Testifying Witness as Declarant
a. Prior statement of a testifying witness, when offered for the truth, is hearsay. United
States v. Check, 582 F.2d 668 (2d Cir. 1978).
b. When the Declarant is also a witness, it is difficult to justify classifying as hearsay
evidence of his own prior statements. . . . The courts declare the prior statement to be
hearsay because it was not made under oath, subject to the penalty for perjury or to the
test of cross-examination. To which the answer might well be: “The declarant as a
witness is now under oath and now purports to remember and narrate accurately. The
adversary can now expose every element that may carry a danger of misleading the
trier of fact both in the previous statement and in the present testimony, and the trier
can judge whether both the previous declaration and the present testimony are reliable
in whole or in part.” Edmund Morgan, Hearsay Dangers and the Application of the
Hearsay Concept, 62 Harv. L. Rev. 177, 192-94 (1948).
2. Whether declarant is available/unavailable
a. Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness
if the declarant:
1. is exempted from testifying about the subject matter of the declarant's statement
because the court rules that a privilege applies;
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2. refuses to testify about the subject matter despite a court order to do so;
3. testifies to not remembering the subject matter;
4. cannot be present or testify at the trial or hearing because of death or a then-existing
infirmity, physical illness, or mental illness; or
5. is absent from the trial or hearing and the statement's proponent has not been able,
by process or other reasonable means, to procure:
a. the declarant's attendance, in the case of a hearsay exception under Rule
804(b)(1) or (6); or
b. the declarant's attendance or testimony, in the case of a hearsay exception under
Rule 804(b)(2), (3), or (4).
b. But this subdivision (a) does not apply if the statement's proponent procured or
wrongfully caused the declarant's unavailability as a witness in order to prevent the
declarant from attending or testifying.
3. When to bring a motion in limine
a. Motions in limine are common vehicles for preliminary rulings on anticipated hearsay
objections.
b. Brom v. Bozell, Jacobs, Kenyon & Eckhardt, Inc., 867 F. Supp. 686, 31 Fed. R. Serv.
3d 244 (N.D. Ill. 1994)(denying motion in limine to exclude hearsay remarks in age
discrimination suit because issue of whether remarks qualify as a party admission “can
only be resolved based upon consideration of the evidence presented at trial”).
4. Failure to sequester witnesses
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C. Objecting to Hearsay:
1. Should you object? Hearsay usually is weaker than live testimony, and defendants may
prefer the hearsay version rather than making an objection that would compel the
prosecution to produce a stronger witness. United States v. Moon, 512 F.3d 359, 361 (7th
Cir. 2008).
2. Are your objections specific? The Rules do not require that an objection be presented with
a pinpoint citation to the Rules or reference to a relevant precedent. United States v. David,
96 F3d 1477, 1480 (D.C. Cir. 1996); United States v. Whitaker, 127 F3d 595, 601 (7th Cir.
1997). An objection must state the specific grounds on which is based. United States v.
Swan, 486 F3d 260, 264 (7th Cir. 2007) (objection “hearsay” was insufficient to alert the
court to the claim that the speaker was not an agent of defendant).
3. Should I object at sidebar? “The side-bar conference was held off the record. Therefore, if
defense counsel did object, this court would have no way of knowing it.” United States v.
Reed, 227 F3d 763, 769 n.5 (7th Cir. 2000).
D. Providing foundation for exemptions, exceptions, and exclusions
1. Exemptions
a. Prior statements of witnesses
b. Admissions of party opponents
2. Exceptions when regardless of declarant’s availability - Fed. R. Evid. 803
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
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(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for--and is reasonably pertinent to--medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
(5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
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(8) Public Records. A record or statement of a public office if: (A) it sets out:
(i) the office's activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
(10) Absence of a Public Record. Testimony--or a certification under Rule 902--that a diligent search failed to disclose a public record or statement if:
(A) the testimony or certification is admitted to prove that (i) the record or statement does not exist; or (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice--unless the court sets a different time for the notice or the objection.
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it.
(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
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(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;(B) the record is kept in a public office; and (C) a statute authorizes recording documents of that kind in that office.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose--unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.
(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage--or among a person's associates or in the community--concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
(20) Reputation Concerning Boundaries or General History. A reputation in a community--arising before the controversy--concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.
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(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if: (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;(B) the conviction was for a crime punishable by death or by imprisonment for more than a year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. The pendency of an appeal may be shown but does not affect admissibility.
(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:
(A) was essential to the judgment; and (B) could be proved by evidence of reputation.
3. Exceptions when declarant is unavailable – Fed R. Evid. 804
(1) Former Testimony. Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.
(3) Statement Against Interest. A statement that: (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
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(4) Statement of Personal or Family History. A statement about: (A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.
4. Reasons why state hearsay rules may differ from federal rules: 1. Minor technical and verbal variations in terminology; 2. Traditional state practice; 3. Taking sides on controversial provisions; and 4. Breaking new ground.
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How to Get Hearsay, Emails, Business Records, Social Media, and More Into Evidence
Hearsay: Common Pitfalls and How to Avoid Them
(45 minutes)
1
2
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Common Pitfalls
▪ Not recognizing hearsay
▪ Not using motions in limine/pre‐hearing conferences
▪ Not making the declarant available
Avoiding Pitfalls
▪ Scour all evidence regarding hearsay
▪ Raise all hearsay concerns in motions in limine/pre‐hearing conferences
▪ Put key declarants on your witness list
3
4
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Using Hearsay for a Non‐Hearsay Purpose
It’s not hearsay
▪ Never say: “It’s not offered for the truth…”
▪ Consider all elements the hearsay might be relevant to prove–Excluding the truth of the matter asserted
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Hearsay within Hearsay
Find an exception to each item
▪ Example:
▪ Q: Mr. Jones, what happened next?
▪ A: Mr. Smith told me that the plaintiff said Plaintiff was not hurt.”
▪ Objection: hearsay
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Break it down
▪What Plaintiff told Smith
▪ “Plaintiff said plaintiff was not hurt”
▪ Admission by a party opponent
▪ By definition not hearsay– FRE 801(d)(2)(A) Statement by a party
Break it down
▪What Smith told Jones
▪ Is there a non‐hearsay purpose?– To show that Smith knows the witness
– To show that Smith communicated with the witness
– To show that Smith had knowledge of the case
▪ Is there an exception?– Business record? Excited utterance? Present sense impression?
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The Residual Exception
Rule 807 – Residual Exception
▪ (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
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Rule 807 – Residual Exception
▪ (1) the statement has equivalent circumstantial guarantees of trustworthiness;
▪ (2) it is offered as evidence of a material fact;
▪ (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
▪ (4) admitting it will best serve the purposes of these rules and the interests of justice.
Rule 807 – Residual Exception
▪ (b)Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
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Hearsay in Medical Records
Rule 803(4) – Exceptions
▪ (4) Statement Made for Medical Diagnosis or Treatment.A statement that:
▪ (A) is made for — and is reasonably pertinent to —medical diagnosis or treatment; and
▪ (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.
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See also
▪ Rule 803(6) Business records
▪ Rule 803(9) Records of vital statistics
▪ Rule 803(5) Recorded recollection
Hearsay and the Confrontation Clause in Criminal Matters
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Sixth Amendment: Confrontation
▪ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Touchstone
▪ Crawford v. Washington, 541 U.S. 36 (2004)
– “testimonial” hearsay statements to police are admitted only if
–Declarant is unavailable
–Defendant has had a meaningful prior opportunity to cross‐examine the accuser
–Traditional hearsay exception don’t apply
–Foundation rules still apply
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Applying Exceptions to the Hearsay Rule: Real-World Examples
Brock J. Specht
Nichols Kaster, PLLP
Hearsay Recap
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Hearsay Recap
Rule 801. Definitions That Apply to This Article; Exclusions fromHearsay(a) STATEMENT. ‘‘Statement’’ means a person’s oral assertion, writtenassertion, or nonverbal conduct, if the person intended it as anassertion.(b) DECLARANT. ‘‘Declarant’’ means the person who made thestatement.(c) HEARSAY. ‘‘Hearsay’’ means a statement that: (1) the declarantdoes not make while testifying at the current trial or hearing; and (2) aparty offers in evidence to prove the truth of the matter asserted inthe statement.
Hearsay Recap
Rule 802. The Rule Against HearsayHearsay is not admissible unless any of the following providesotherwise:• a federal statute;• these rules; or• other rules prescribed by the Supreme Court.
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Hearsay Recap
Other Relevant RulesRule 803: Exceptions to the Rule Against HearsayRule 804: Hearsay Exceptions; Declarant UnavailableRule 807: Residual Exception
Defining Unavailability of a Witness
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Defining Unavailability of a Witness
• Rule 804 contains several exceptions to the rule against hearsay incircumstances where the witness is unavailable to testify at trial.
• A witness can be “unavailable” for purposes of the rule for severalreasons, including:
• Asserting a valid privilege• Refusing to testify• Not remembering the subject matter• Is physically absent or unable to testify
Defining Unavailability of a Witness
• A declarant who dies before being called to testifyis clearly “unavailable” to testify at trial. See Hornev. Owens Corning Fiberglass Corp., 4 F.3d 276, 28283 (4th Cir. 1993)
• A witness can be physically present but still“unavailable” for purposes of the rule:
• Fifth Amendment: In re Inofin Inc., 219F.Supp.3d 265, 271 (D. Mass. 2016).
• Spousal Privilege: Emmi v. DeAngelo, 261F.Supp.3d 556, 560 61 (E.D. Penn. 2017).
• “[F]latly refuses to testify”: Pitre v. Griffin, 2016WL 7442653, *5 (E.D.N.Y. Dec. 26, 2016).
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Rule 803 Exceptions
Rule 803 Exceptions
• Rule 803 contains twenty three specific exceptionsto the rule against hearsay.
• Statements described by these exceptions “are notexcluded by the rule against hearsay, regardless ofwhether the declarant is available as a witness.”Fed. R. Evid. 803.
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Rule 803(2) Excited Utterance
Rule 803(2) Excited Utterance
“A statement relating to a startling event orcondition, made while the declarant was under thestress of excitement that it caused.” Fed. R. Evid.803(2).
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Rule 803(2) Excited Utterance
“The presence of three conditions are necessary before astatement may qualify as an excited utterance. To qualify,the proponent must establish (1) a startling event, (2) thedeclarant made the statement under the stress of theevent's excitement, and (3) a nexus exists between thecontent of the statement and the event.” United States v.Magnan, 863 F.3d 1284, 1292 (10th Cir. 2017).
“Admissibility hinges on a statement'scontemporaneousness with the excitement a startlingevent causes, not the event itself.” Id. at 1292–93.
Rule 803(2) Excited Utterance
Example: United States v. Magnan, 863 F.3d 1284,1292 (10th Cir. 2017).• The defendant was accused of shooting multiplepeople
• One victim, who later died, identified thedefendant as the shooter on “three separateoccasions ranging from approximately two to fivehours after the shooting.”
• On each occasion, there was evidence that thevictim was suffering mental and physical distressrelated to the shooting, supporting admission ofthe statements as excited utterances.
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Rule 803(1) Present Sense Impression
Rule 803(1) Present Sense Impression
“A statement describing or explaining an event orcondition, made while or immediately after thedeclarant perceived it.” Fed. R. Evid. 803(1).
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Rule 803(1) Present Sense Impression
“Immediately after” can be several minutes after theevent in question:
Rule 803(1) Present Sense Impression
“Immediately after” can be several minutes after theevent in question:• United States v. Ferber, 966 F. Supp. 90, 99 (D.Mass. 1997) (email sent shortly after meetingoccurred).
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Rule 803(1) Present Sense Impression
“Immediately after” can be several minutes after theevent in question:• United States v. Ferber, 966 F. Supp. 90, 99 (D.Mass. 1997) (email sent shortly after meetingoccurred).
• Canatxx Gas Storage Ltd. v. Silverhawk CapitalPartners, LLC, CIV.A. H 06 1330, 2008 WL 1999234,at *14 (S.D. Tex. May 8, 2008) (email memorializingphone call that “just” occurred).
Rule 803(1) Present Sense Impression
“Immediately after” can be several minutes after theevent in question.But some close temporal connection is necessary:
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Rule 803(1) Present Sense Impression
“Immediately after” can be several minutes after theevent in question.But some close temporal connection is necessary:• E.g. Herster v. Bd. of Supervisors, CV 13 139 JJBSCR, 2015 WL 5443673, at *5 (M.D. La. Sept. 15,2015) (Facebook comments and tweets notpresent sense impressions because “it isimpossible to know whether the comments weremade while or immediately after” the eventoccurred).
Rule 803(3) Present State of Mind
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Rule 803(3) Present State of Mind
“A statement of the declarant’s then existing state ofmind (such as motive, intent, or plan) or emotional,sensory, or physical condition (such as mentalfeeling, pain, or bodily health)….” Fed. R. Evid.803(3).
Rule 803(3) Present State of Mind
Example: Packgen v. Berry Plastics Corp., 847 F.3d 80(1st Cir. 2017):
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Rule 803(3) Present State of Mind
Example: Packgen v. Berry Plastics Corp., 847 F.3d 80(1st Cir. 2017):• Commercial contract dispute betweenmanufacturer and parts supplier.
Rule 803(3) Present State of Mind
Example: Packgen v. Berry Plastics Corp., 847 F.3d 80(1st Cir. 2017):• Commercial contract dispute betweenmanufacturer and parts supplier.
• Manufacturer claimed lost sales due to defectiveparts provided by supplier.
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Rule 803(3) Present State of Mind
Example: Packgen v. Berry Plastics Corp., 847 F.3d 80(1st Cir. 2017):• Commercial contract dispute betweenmanufacturer and parts supplier.
• Manufacturer claimed lost sales due to defectiveparts provided by supplier.
• President allowed to testify that prior to productfailures, numerous prospective customers told himthey intended to buy the product.
Rule 803(3) Present State of Mind
Example: Packgen v. Berry Plastics Corp., 847 F.3d 80(1st Cir. 2017):• Commercial contract dispute betweenmanufacturer and parts supplier.
• Manufacturer claimed lost sales due to defectiveparts provided by supplier.
• President allowed to testify that prior to productfailures, numerous prospective customers told himthey intended to buy the product.
• Jury awarded $7.2 million; admission of statementsupheld on appeal under 803(3).
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Rule 803(5) Recorded Recollection
Rule 803(5) Recorded Recollection
“A record that:(A) is on a matter that the witness once knew aboutbut now cannot recall well enough to testify fully andaccurately;(B) was made or adopted by the witness when thematter was fresh in the witness’s memory; and(C) accurately reflects the witness’s knowledge.If admitted, the record may be read into evidencebut may be received as an exhibit only if offered byan adverse party.” Fed. R. Evid. 803(5).
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Rule 803(5) Recorded Recollection
Example: Equal Empl. Opportunity Commn. v.Staffmark Inv. LLC, 67 F. Supp. 3d 885, 892–93 (N.D.Ill. 2014):
Rule 803(5) Recorded Recollection
Example: Equal Empl. Opportunity Commn. v.Staffmark Inv. LLC, 67 F. Supp. 3d 885, 892–93 (N.D.Ill. 2014):• Case involved allegation of disability discriminationin employment.
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Rule 803(5) Recorded Recollection
Example: Equal Empl. Opportunity Commn. v.Staffmark Inv. LLC, 67 F. Supp. 3d 885, 892–93 (N.D.Ill. 2014):• Case involved allegation of disability discriminationin employment.
• Parties disputed the facts surrounding the plaintiff’stermination from a project.
Rule 803(5) Recorded Recollection
Example: Equal Empl. Opportunity Commn. v.Staffmark Inv. LLC, 67 F. Supp. 3d 885, 892–93 (N.D.Ill. 2014):• Case involved allegation of disability discriminationin employment.
• Parties disputed the facts surrounding the plaintiff’stermination from a project.
• Contents of emails sent at the time of theemployee’s discharge admissible when senderscould not fully recall the events described in theemails.
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Rule 803(17) Commercial Publications
Rule 803(17) Commercial Publications
“Market quotations, lists, directories, or othercompilations that are generally relied on by thepublic or by persons in particular occupations.” Fed.R. Civ. P. 803(17).
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Rule 803(17) Commercial Publications
“Market quotations, lists, directories, or othercompilations that are generally relied on by thepublic or by persons in particular occupations.” Fed.R. Civ. P. 803(17).
Example: Mortgage Electronic Registration System(“MERS”), an “electronic database that providesinformation for registered mortgages” and is“generally relied upon by the members of [themortgage underwriting] profession.” U.S. Bank, Nat'lAss'n v. UBS Real Estate Sec. Inc., 205 F. Supp. 3d 386,441 (S.D.N.Y. 2016).
Rule 803(18) Learned Writings
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Rule 803(18) Learned Writings
“A statement contained in a treatise, periodical, orpamphlet if:(A) the statement is called to the attention of anexpert witness on cross examination or relied on bythe expert on direct examination; and(B) the publication is established as a reliableauthority by the expert’s admission or testimony, byanother expert’s testimony, or by judicial notice.If admitted, the statement may be read into evidencebut not received as an exhibit.” Fed. R. Evid. 803(18).
Rule 803(18) Learned Writings
Example: In re C.R. Bard, Inc., MDL. No. 2187, PelvicRepair Sys. Prod. Liab. Litig., 810 F.3d 913, 925 (4thCir. 2016):
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Rule 803(18) Learned Writings
Example: In re C.R. Bard, Inc., MDL. No. 2187, PelvicRepair Sys. Prod. Liab. Litig., 810 F.3d 913, 925 (4thCir. 2016):• District Court admitted Material Safety Data Sheet(“MSDS”) as a learned “pamphlet” under 803(18).
Rule 803(18) Learned Writings
Example: In re C.R. Bard, Inc., MDL. No. 2187, PelvicRepair Sys. Prod. Liab. Litig., 810 F.3d 913, 925 (4thCir. 2016):• District Court admitted Material Safety Data Sheet(“MSDS”) as a learned “pamphlet” under 803(18).
• On appeal, Fourth Circuit found an abuse ofdiscretion, noting that no expert was asked aboutthe MSDS on cross, and one expert attacked itduring direct exam.
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Rule 803(18) Learned Writings
Example: In re C.R. Bard, Inc., MDL. No. 2187, PelvicRepair Sys. Prod. Liab. Litig., 810 F.3d 913, 925 (4thCir. 2016):• District Court admitted Material Safety Data Sheet(“MSDS”) as a learned “pamphlet” under 803(18).
• On appeal, Fourth Circuit found an abuse ofdiscretion, noting that no expert was asked aboutthe MSDS on cross, and one expert attacked itduring direct exam.
• Appellate court also noted that no expertestablished the MSDS as a reliable authority.
Rules 803(19) (21) Reputation
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Rules 803(19) (21) Reputation
(19) Reputation Concerning Personal or Family History. Areputation among a person’s family by blood, adoption, ormarriage—or among a person’s associates or in thecommunity—concerning the person’s birth, adoption,legitimacy, ancestry, marriage, divorce, death, relationship byblood, adoption, or marriage, or similar facts of personal orfamily history.
(20) Reputation Concerning Boundaries or General History. Areputation in a community—arising before the controversy—concerning boundaries of land in the community or customsthat affect the land, or concerning general historical eventsimportant to that community, state, or nation.
(21) Reputation Concerning Character. A reputation among aperson’s associates or in the community concerning theperson’s character.
Rules 803(19) (21) Reputation
Example: Pueblo of Jemez v. United States, F.Supp.3d, 2018 WL 6002913 (D.N.M. Nov. 15, 2018):
• Dispute between and American Indian tribe and theUnited States regarding the tribe’s right to aboriginaltitle in certain lands.
• After a lengthy analysis of the reputation exceptionsand their application to American Indian oral traditions,the court held that the proffered oral traditionevidence was not generally admissible but could beadmitted for limited purposes strictly tied to theexceptions, including personal and family history,history regarding land use, and personal character
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Rules 803(22) (23) Judgments
Rules 803(22) (23) Judgments
(22) Judgment of a Previous Conviction. Evidence of afinal judgment of conviction if: (A) the judgment wasentered after a trial or guilty plea, but not a nolocontendere plea; (B) the conviction was for a crimepunishable by death or by imprisonment for more than ayear; (C) the evidence is admitted to prove any factessential to the judgment; and (D) when offered by theprosecutor in a criminal case for a purpose other thanimpeachment, the judgment was against the defendant.
(23) Judgments Involving Personal, Family, or GeneralHistory, or a Boundary. A judgment that is admitted toprove a matter of personal, family, or general history, orboundaries, if the matter: (A) was essential to thejudgment; and (B) could be proved by evidence ofreputation.
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Rules 803(22) (23) Judgments
Example: Chartis Prop. Cas. Co. v. Huguely, 243 F.Supp. 3d 615, 626–27 (D. Md. 2017), aff'd 734 F.App'x 184 (4th Cir. 2018):
Rules 803(22) (23) Judgments
Example: Chartis Prop. Cas. Co. v. Huguely, 243 F.Supp. 3d 615, 626–27 (D. Md. 2017), aff'd 734 F.App'x 184 (4th Cir. 2018):
“Here, Plaintiff alleges that Defendant's liability in the CivilCase arises out of his commission of the criminal act ofsecond degree murder. It was essential to Defendant'sconviction for second degree murder for the jury to findthat he had committed a malicious killing. The evidence ofhis conviction is being admitted to prove that hecommitted that same criminal act. … Defendant’sconviction is admissible in this court [under Rule803(22)].”
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Rules 803(8) (10) Public Records
Rules 803(8) (10) Public Records
803(8) Public Records.
803(9) Public Records of Vital Statistics.
803(10) Absence of a Public Record.
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Rules 803(8) (10) Public Records
Example: Fritz v. Islamic Republic of Iran, 320 F. Supp.3d 48, 59 n.3 (D.D.C. 2018):
Rules 803(8) (10) Public Records
Example: Fritz v. Islamic Republic of Iran, 320 F. Supp.3d 48, 59 n.3 (D.D.C. 2018):• Private action seeking damages for Iran’s allegedinvolvement in the deaths of four Americans.
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Rules 803(8) (10) Public Records
Example: Fritz v. Islamic Republic of Iran, 320 F. Supp.3d 48, 59 n.3 (D.D.C. 2018):• Private action seeking damages for Iran’s allegedinvolvement in the deaths of four Americans.
• Investigative reports created by the U.S. Army andthe Department of Defense regarding Iranianactivity in the Middle East were admissible aspublic records under 803(8).
Rule 804 Exceptions
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Rule 804(b)(1) Former Testimony
Rule 804(b)(1) Former Testimony
“Testimony that:
(A) was given as a witness at a trial, hearing, orlawful deposition, whether given during the currentproceeding or a different one; and
(B) is now offered against a party who had — or, in acivil case, whose predecessor in interest had — anopportunity and similar motive to develop it bydirect, cross , or redirect examination.”
Fed. R. Evid. 804(b)(1).
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Rule 804(b)(1) Former Testimony
• This exception clearly includes testimony given indepositions and trials in prior lawsuits.
Rule 804(b)(1) Former Testimony
• This exception clearly includes testimony given indepositions and trials in prior lawsuits.
• Also includes sworn testimony in otherproceedings—for example, an arbitration hearing.See, e.g., Amobi v. Brown, 317 F. Supp. 3d 29, 39(D.D.C. 2018) (“The Court finds that therequirements of Rule 804(b)(1) are satisfied withrespect to Nguyen's prior testimony in thearbitration proceeding, because Nguyen providedrelevant testimony under oath, and was crossexamined….”)
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Rule 804(b)(2) Dying Declarations
Rule 804(b)(2) Dying Declarations
“In a prosecution for homicide or in a civil case, astatement that the declarant, while believing thedeclarant’s death to be imminent, made about itscause or circumstances.”
Fed. R. Evid. 804(b)(2).
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Rule 804(b)(2) Dying Declarations
• The fact that the declarant ultimately diedfollowing the statement is not, standing alone,sufficient to allow admission of a hearsaystatement under this rule—there must be evidencethat declarant “believed his death was imminent”at the time of the statement.
United States v. Shields, 497 F.3d789, 793 (8th Cir. 2007).
Rule 804(b)(4) Personal/Family History
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Rule 804(b)(4) Personal/Family History
“A statement about:(A) the declarant’s own birth, adoption, legitimacy,ancestry, marriage, divorce, relationship by blood,adoption, or marriage, or similar facts of personal orfamily history, even though the declarant had no wayof acquiring personal knowledge about that fact; or(B) another person concerning any of these facts, aswell as death, if the declarant was related to theperson by blood, adoption, or marriage or was sointimately associated with the person’s family thatthe declarant’s information is likely to be accurate.”
Fed. R. Evid. 804(b)(4).
Rule 804(b)(4) Personal/Family History
Example:Mwaipungu v. Yates, 2017 WL 386543, *7(E.D. Mo. Jan. 27, 2017):
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Rule 804(b)(4) Personal/Family History
Example:Mwaipungu v. Yates, 2017 WL 386543, *7(E.D. Mo. Jan. 27, 2017):• Plaintiff claimed to be a U.S. citizen by birth.
Rule 804(b)(4) Personal/Family History
Example:Mwaipungu v. Yates, 2017 WL 386543, *7(E.D. Mo. Jan. 27, 2017):• Plaintiff claimed to be a U.S. citizen by birth.• In support of his claim, Plaintiff offered affidavit ofhis father, which attested to the fact that Plaintiffwas born in New York City.
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Rule 804(b)(4) Personal/Family History
Example:Mwaipungu v. Yates, 2017 WL 386543, *7(E.D. Mo. Jan. 27, 2017):• Plaintiff claimed to be a U.S. citizen by birth.• In support of his claim, Plaintiff offered affidavit ofhis father, which attested to the fact that Plaintiffwas born in New York City.
• Court found that “Plaintiff’s father is unavailableand the affidavit contains statements of familyhistory pursuant to Federal Rule ofEvidence 804(b)(4).”
Rule 804(b)(3) Decl’n Against Interest
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Rule 804(b)(3) Decl’n Against Interest
“A statement that:(A) a reasonable person in the declarant’s position would havemade only if the person believed it to be true because, whenmade, it was so contrary to the declarant’s proprietary orpecuniary interest or had so great a tendency to invalidate thedeclarant’s claim against someone else or to expose thedeclarant to civil or criminal liability; and(B) is supported by corroborating circumstances that clearlyindicate its trustworthiness, if it is offered in a criminal case asone that tends to expose the declarant to criminal liability.”
Fed. R. Evid. 804(b)(3).
Rule 804(b)(3) Decl’n Against Interest
Example: United States v. Ojudun, F.3d , 2019 WL489051, *9 (2d Cir. Feb. 8, 2019):
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Rule 804(b)(3) Decl’n Against Interest
Example: United States v. Ojudun, F.3d , 2019 WL489051, *9 (2d Cir. Feb. 8, 2019):• District court admitted lengthy confession by thedefendant’s alleged co conspirator related to criminalactivity of both.
Rule 804(b)(3) Decl’n Against Interest
Example: United States v. Ojudun, F.3d , 2019 WL489051, *9 (2d Cir. Feb. 8, 2019):• District court admitted lengthy confession by thedefendant’s alleged co conspirator related to criminalactivity of both.
• On appeal, the First Circuit concluded that “most of [thedeclarant’s] statements, made to a law enforcementofficial, were designed to minimize his involvement in theplanned fraud and to deflect responsibility onto [thedefendant].”
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Rule 804(b)(3) Decl’n Against Interest
Example: United States v. Ojudun, F.3d , 2019 WL489051, *9 (2d Cir. Feb. 8, 2019):• District court admitted lengthy confession by thedefendant’s alleged co conspirator related to criminalactivity of both.
• On appeal, the First Circuit concluded that “most of [thedeclarant’s] statements, made to a law enforcementofficial, were designed to minimize his involvement in theplanned fraud and to deflect responsibility onto [thedefendant].”
• Accordingly, these portions of the confession were notstatements against the declarant’s penal interests, butinstead tended to exculpate the declarant from criminalliability.
Rule 804(b)(6) Forfeiture by Wrongdoing
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Rule 804(b)(6) Forfeiture by Wrongdoing
“A statement offered against a party that wrongfullycaused—or acquiesced in wrongfully causing—thedeclarant’s unavailability as a witness, and did sointending that result.”
Fed. R. Evid. 804(b)(6).
Rule 804(b)(6) Forfeiture by Wrongdoing
• This exception applies “only if the defendant has inmind the particular purpose of making the witnessunavailable.” Giles v. California, 554 U.S. 353, 367(2008) (quotation omitted).
• Thus, the exception does not apply in cases where“the defendant had caused a person to be absent,but had not done so to prevent the person fromtestifying—as in the typical murder case involvingaccusatorial statements by the victim.” Id. at 361.
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Rule 804(b)(6) Forfeiture by Wrongdoing
Example: United States v. Pratt, F.3d , 2019 WL489053, *7 (4th Cir. Feb 8, 2019):
Rule 804(b)(6) Forfeiture by Wrongdoing
Example: United States v. Pratt, F.3d , 2019 WL489053, *7 (4th Cir. Feb 8, 2019):• Defendant made threating calls to witness fromjail.
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Rule 804(b)(6) Forfeiture by Wrongdoing
Example: United States v. Pratt, F.3d , 2019 WL489053, *7 (4th Cir. Feb 8, 2019):• Defendant made threating calls to witness fromjail.
• Threats suggested “that [the defendant] wouldhurt [the witness] in the future if she disobeyed[him] and testified against him,” which wassufficient to allow for the admission of thewitness’s hearsay statements under a forfeiture bywrongdoing theory.
Rule 801(d) Exclusions
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Rule 801(d) Exclusions
• Rule 801(d) excludes from the definition of hearsaytwo types of statements, sometimes called“admissions”:
• Under Rule 801(d)(1), the prior testimony of awitness is not hearsay when it is inconsistentwith the witness’s present testimony, or when itis consistent with the present testimony andoffered to rebut a claim of recent fabrication.
• Under Rule 801(d)(2), any prior statement by aparty is not hearsay when it is offered againstthat party.
801(d)(1) Prior Inconsistent Testimony
Example: United States v. Dean, 823 F.3d 422, 427(8th Cir. 2016):
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801(d)(1) Prior Inconsistent Testimony
Example: United States v. Dean, 823 F.3d 422, 427(8th Cir. 2016):
• In prosecution for unlawful possession of afirearm, a witness testified in grand juryproceeding that she saw defendant firing a gun.
801(d)(1) Prior Inconsistent Testimony
Example: United States v. Dean, 823 F.3d 422, 427(8th Cir. 2016):
• In prosecution for unlawful possession of afirearm, a witness testified in grand juryproceeding that she saw defendant firing a gun.
• At trial, witness testified that she could notremember whether she saw a gun.
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801(d)(1) Prior Inconsistent Testimony
Example: United States v. Dean, 823 F.3d 422, 427(8th Cir. 2016):
• In prosecution for unlawful possession of afirearm, a witness testified in grand juryproceeding that she saw defendant firing a gun.
• At trial, witness testified that she could notremember whether she saw a gun.
• Court held that lack of memory was sufficient tocreate inconsistency, noting that the testimonyneed not be “diametrically opposed … evasiveanswers, inability to recall, silence, or changes ofposition” are generally sufficient.
801(d)(2) Statement of Party Opponent
Broad Exclusion Includes:• Statement made by party• Statement adopted by party• Statement made by authorized spokesperson• Statement made by agent or employee withinthe scope of the relationship
• Statement made by a co conspirator infurtherance of the conspiracy
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801(d)(2) Statement of Party Opponent
Examples:• United States v. Lewisbey, 843 F.3d 653, 658 (7thCir. 2016) (hearsay objection a “nonstarter”when text messages sent by the defendant were“his own statements and as such are excludedfrom the definition of hearsay by Rule801(d)(2)(A).”).
801(d)(2) Statement of Party Opponent
Examples:• Van Westrienen v. Americontinental CollectionCorp., 94 F. Supp. 2d 1087, 1109 (D. Or. 2000)(rejecting argument that material fromdefendant corporation’s website was hearsay,holding instead that “representations made bydefendants on website are admissible asadmissions of the party opponent under FRE801(d)(2)(A).”).
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801(d)(2) Statement of Party Opponent
Examples:• United States v. Browne, 834 F.3d 403, 415 (3dCir. 2016) (four Facebook chats “that [thedefendant] himself participated in,” were“properly admitted as admissions by a partyopponent under Rule 801(d)(2)(A).”).
801(d)(2) Statement of Party Opponent
Examples:• Sea Land Serv., Inc. v. Lozen Intern., LLC., 285F.3d 808, 821 (9th Cir. 2002) (employee ofplaintiff “incorporated and adopted thecontents” of an email by forwarding the email tothe defendant with a cover note that“manifested an adoption or belief in the truth”of the information).
• United States v. Safavian, 435 F. Supp. 2d 36,43–44 (D.D.C. 2006) (similar holding).
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III. Applying Exceptions to the Hearsay Rule: Real-World Examples
Brock J. Specht, Nichols Kaster, PLLP
- - -
Hearsay can be a trial lawyer’s best friend, and worst enemy. It’s one thing to
assemble a great record in discovery; it’s another thing to get that material into evidence
at trial—or to prevent your adversary from getting their evidence admitted. The rule
against hearsay, which generally prohibits the admission into evidence of out-of-court
statements, and the many exceptions to that rule, are powerful tools that every trial
lawyer must master to successfully present their best case to the judge and jury.
The definition of “hearsay” under the Federal Rules of Evidence is cumbersome.
“Hearsay” is “a statement that: (1) the declarant does not make while testifying at the
current trial or hearing and; (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” Fed. R. Evid. 801(c). For purposes of this definition, a
“declarant” is “the person who made the statement”; and a “statement” is “a person’s oral
assertion, written assertion, or nonverbal conduct, if the person intended it as an
assertion.” Fed. R. Evid. 801(a), (b). However, if the declarant is also a witness, his or her
prior out-of-court statements may not be hearsay if they meet the conditions in Fed. R.
Evid. 801(d)(1), and an opposing party’s out-of-court statements are almost never
hearsay under Fed. R. Evid. 801(d)(2).
The Federal Rules of Evidence provide that hearsay “is not admissible unless one
of the following provides otherwise: a federal statute; these rules; or other rules
prescribed by the Supreme Court.” Fed. R. Evid. 802. The Rules then go on to list
twenty-three specific exceptions to the rule against hearsay that apply regardless of
whether the declarant is available to testify, several additional exceptions that apply when
the declarant is unavailable to testify, and a general “residual exception” that could apply
in any number of circumstances. Fed. R. Civ. P. 803, 804, 807. A comprehensive review
of these exceptions would fill a treatise, but a survey of real-world examples should
provide a helpful starting point for litigators looking to apply the sometimes-abstract
hearsay concepts to actual hearings and trials.
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A. Defining Unavailability of a Witness
Rule 804 contains several hearsay exceptions that apply only if the declarant is
“unavailable as a witness.” Fed. R. Evid. 804(a). The Rule provides a variety of
circumstances that render a person “unavailable,” including if the person refuses to
testify, claims not to remember the subject matter, or is physically absent or unable to
testify. See id. Most of these conditions are fairly straightforward—for example, a
declarant who has died prior to being called to testify is clearly “unavailable” to provide
live testimony as a witness at trial. See Horne v. Owens-Corning Fiberglass Corp., 4 F.3d
276, 282-83 (4th Cir. 1993). More interesting circumstances arise when a witness is
physically present at the proceeding but refuses to answer questions on a topic. For
example, invoking a testimonial privilege, such at the Fifth Amendment right against
self-incrimination, In re Inofin Inc., 219 F.Supp.3d 265, 271 (D. Mass. 2016), or the
spousal privilege, Emmi v. DeAngelo, 261 F.Supp.3d 556, 560-61 (E.D. Penn. 2017), is
generally sufficient to render a person “unavailable” as a witness. However, the assertion
of a legally valid privilege is not necessary, as any person “who flatly refuses to testify is
deemed unavailable.” Pitre v. Griffin, 2016 WL 7442653, *5 (E.D.N.Y. Dec. 26, 2016).
B. Excited, Contemporaneous or Spontaneous Utterances
Rule 803(2) provides that a “statement relating to a startling event or condition,
made while the declarant was under the stress of excitement that it caused,” is not
excluded by the rule against hearsay. Fed. R. Evid. 803(2). “The presence of three
conditions are necessary before a statement may qualify as an excited utterance. To
qualify, the proponent must establish (1) a startling event, (2) the declarant made the
statement under the stress of the event's excitement, and (3) a nexus exists between the
content of the statement and the event.” United States v. Magnan, 863 F.3d 1284, 1292
(10th Cir. 2017). However, it is not necessary that the statement be made spontaneous
with the events described in the statement. “Admissibility hinges on a statement's
contemporaneousness with the excitement a startling event causes, not the event itself.”
Id. at 1292–93.
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Magnan provides a good, albeit tragic, example of this exception. In that case, the
defendant was accused of shooting several individuals. Id. at 1287. One of the victims
was heard identifying the defendant as the shooter on “three separate occasions ranging
from approximately two to five hours after the shooting.” Id. Although the statements
were not contemporaneous with the shooting itself, the court found ample evidence to
support their admission as excited utterances given “the horrific nature of the
circumstances [the declarant] personally encountered and her critical medical condition.”
Id. at 1295. Key to the court’s finding of admissibility was evidence that at the time of
each of the statements, the declarant outwardly exhibits signs of mental and physical
distress resulting from her traumatic experience and severe wounds. Id. at 1293 (moaning
in pain, difficult breathing, unstable vital signs), 1294 (unstable vital signs, appeared to
be in shock), 1295 (hospitalized in critical condition, scared and anxious appearance).
C. Present Sense Impressions
Rule 803(1) provides that a “statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it,” is not excluded by
the rule against hearsay. Fed. R. Evid. 803(1). This exception slightly differs from the
excited utterance exception in that the statement offered must “describ[e] or explain[]”
the event in question, rather than merely “relat[e] to” the event, and there is no
requirement that the declarant be “under the stress or excitement” of the event, as there is
in Rule 803(2). The present sense impression exception also requires that the statement
be made “while or immediately after” the event, although several courts have held that
“immediately after” can be many minutes after the event. See United States v. Ferber,
966 F. Supp. 90, 99 (D. Mass. 1997). Thus, emails sent shortly after an event may still
qualify for the present sense impression exception. Id.; see also Canatxx Gas Storage
Ltd. v. Silverhawk Capital Partners, LLC, CIV.A. H-06-1330, 2008 WL 1999234, at *14
(S.D. Tex. May 8, 2008) (holding that because the “email itself states that Blackmon had
“just called.”… [t]he email is admissible as a present-sense impression.”). However,
when dealing with electronic communications, courts typically require some foundation
establishing that the statement was made during or shortly after the event in question
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before admitting the statement under the present sense impression exception. See, e.g.,
Herster v. Bd. of Supervisors, CV 13-139-JJB-SCR, 2015 WL 5443673, at *5 (M.D. La.
Sept. 15, 2015) (holding that Facebook comments and tweets are inadmissible hearsay
and did not fall under the present sense impression exception because “it is impossible to
know whether the comments were made while or immediately after” the event occurred).
D. Declarations of Present State of Mind
Rule 803(3) provides that a “statement of the declarant’s then-existing state of
mind (such as motive, intent, or plan)” is not excluded by the rule against hearsay. Fed.
R. Evid. 803(3). In the right circumstances, this exception can be powerful. For example,
Packgen v. Berry Plastics Corp., 847 F.3d 80 (1st Cir. 2017), involved a contract dispute
between a manufacturer and a parts supplier where the manufacturer claimed that faulty
parts obtained from the supplier caused its products to fail, which resulted in lost sales to
end-user customers. Id. at 84-86. As proof of the lost sales, the manufacturer’s president
testified that prior to the product’s failure, numerous customers had told him that they
intended to purchase the product in the future. Id. at 84-85. This testimony was admitted
over a hearsay objection, with the district court concluding that the statements qualified
for the present state of mind exception to the rule against hearsay. Id. at 90. The First
Circuit agreed, and upheld a $7.2 million jury verdict that was based in part on the
challenged statements.
E. Past Recollection Recorded
Under Rule 803(5), a written record is not excluded by the rule against hearsay
when it:
(A) is on a matter the witness once knew about but now cannot recall well
enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
(C) accurately reflects the witness’s knowledge.
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Fed. R. Civ. P. 803(5). If these conditions are met, the record may be “read into
evidence” but the record itself will not be admitted unless it is “offered by an adverse
party.” Id.
In the context of electronic communication, this has been applied to emails sent
by defendants when the senders thereafter claim they cannot recall the events described
in the emails. See Equal Empl. Opportunity Commn. v. Staffmark Inv. LLC, 67 F. Supp.
3d 885, 892–93 (N.D. Ill. 2014) (holding that emails were admissible under the recorded
recollection exception, as they were on matters that the parties once knew well but could
no longer recall, and were made when the issue was fresh in the mind of the parties.).
However, because this exception requires a showing that the record concerns something
the witness “now cannot recall well enough to testify fully and accurately,” its
applicability tends to be a matter that can be determined only at trial. Skyline Potato Co.,
Inc. v. Hi-Land Potato Co., Inc., CIV 10-0698 JB/RHS, 2013 WL 311846, at *24
(D.N.M. Jan. 18, 2013) (whether one lacks sufficient memory to testify to the emails
contents can only be determined at trial).
F. Learned Writings and Commercial Publications
While general periodicals such as newspapers and magazines are typically
considered to be “rank hearsay that do not fit a hearsay exception,” Am. Home Assur. Co.
v. Greater Omaha Packing Co., 819 F.3d 417, 429 (8th Cir. 2016) (quotation omitted),
Rules 803(17) and 803(18) allow for the admission of statements from certain types of
publications that are established to be authoritative. Specifically, Rule 803(17) allows for
the admission of “[m]arket quotations, lists, directories, or other compilations that are
generally relied on by the public or by persons in particular occupations.” Fed. R. Evid.
803(17). Similarly, Rule 803(18) allows for the admission of statements contained in “a
treatise, periodical, or pamphlet” if there is expert testimony establishing that the
publication is “a reliable authority.” Fed. R. Evid. 803(18).
One example of the type of commercial publications found to be admissible under
Rule 803(17) is the Mortgage Electronic Research System (“MERS”). “MERS is an
electronic database that provides information for registered mortgages.” U.S. Bank, Nat'l
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Ass'n v. UBS Real Estate Sec. Inc., 205 F. Supp. 3d 386, 441 (S.D.N.Y. 2016). It is
“available to the general public” and “generally relied upon by the members of [the
mortgage underwriting] profession.” Id.
The use of learned writings is more complicated. Even when admissible, the
statement “may be read into evidence but not received as an exhibit.” Fed. R. Evid.
803(18). But before that happens, the statement must first be “called to the attention of an
expert witness on cross-examination or relied on by the expert on direct examination,”
and the publication must be “established as a reliable authority” either by expert
testimony or by judicial notice. Fed. R. Civ. P. 803(18). If these requirements are not
followed, the learned writing is not admissible. See In re C.R. Bard, Inc., MDL. No. 2187,
Pelvic Repair Sys. Prod. Liab. Litig., 810 F.3d 913, 925 (4th Cir. 2016) (“[W]e find that
the district court abused its discretion by admitting it under Rule 803(18) because the
reliability of the evidence was not established according to the rule's requirements.”).
Moreover, although a court can take judicial notice of the fact that a publication is a
reliable authority in lieu of expert testimony on that issue, in practice courts may be
hesitant to do so. See, e.g., Milward v. Acuity Specialty Prod. Grp., Inc., 969 F.Supp.2d
101, 113 (D. Mass. 2013) (refusing to take judicial notice of a publication’s reliability in
the absence of expert assistance), aff'd sub nom. Milward v. Rust-Oleum Corp., 820 F.3d
469 (1st Cir. 2016).
G. Judgment and Reputation
Rules 803(19), (20), and (21) contain exceptions for certain types of “reputation”
evidence, including matters related to personal or family history (paragraph 19),
boundaries of land or general historical events (paragraph 20), and personal character
(paragraph 21). These exceptions are rarely addressed in modern decisions, but there is
an extensive discussion of them in Pueblo of Jemez v. United States, --- F.Supp.3d ----,
2018 WL 6002913 (D.N.M. Nov. 15, 2018), where the court applied the reputation
exceptions to trial testimony concerning American Indian oral traditions. The case
involved a dispute between and American Indian tribe and the United States regarding
the tribe’s right to aboriginal title in certain lands. After a lengthy analysis of the
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reputation exceptions and their application to American Indian oral traditions, the court
held that the proffered oral tradition evidence was not generally admissible but could be
admitted for limited purposes strictly tied to the exceptions, including personal and
family history, history regarding land use, and personal character. *23-24.
Rules 803(22) & (23) allow for the admission of certain evidence related to
judgments. Rule 803(22) relates to judgments of criminal convictions, and requires that
the judgment of conviction result from a trial or guilty plea, be for a crime punishable by
death or imprisonment for more than one year, and be offered to prove a fact essential to
the judgment. Among other things, this exception is a useful tool in a civil tort action
where the defendant has been convicted of a crime arising from the same tortious
conduct. The reasoning is as follows:
Here, Plaintiff alleges that Defendant's liability in the Civil Case arises out of his commission of the criminal act of second degree murder. It was essential to Defendant's conviction for second degree murder for the jury to find that he had committed a malicious killing. The evidence of his conviction is being admitted to prove that he committed that same criminal act. … Defendant’s conviction is admissible in this court [under Rule 803(22)].
Chartis Prop. Cas. Co. v. Huguely, 243 F. Supp. 3d 615, 626–27 (D. Md. 2017), aff'd sub
nom. Love v. Chartis Prop. Cas. Co., 734 F. App'x 184 (4th Cir. 2018).
Rule 803(23), on the other hand, goes beyond criminal convictions and allows the
admission of judgments “to prove a matter of personal, family, or general history, or
boundaries” if the matter was “essential to the judgment” and could be “proved by
evidence of reputation.” Fed. R. Evid. 803(23). Examples of this exception in modern
caselaw are virtually nonexistent, and it has been described as “quite possibly the most
obscure hearsay exception in the federal rules.” 30B FEDERAL PRACTICE & PROCEDURE §
6953 (2018 ed.). “One is hard pressed to find an example of the successful invocation of
Rule 803(23) in any published opinion of the federal courts.” Id.
H. Child Statements, Police Reports, Public Records and Reports
Rules 803(8) – (10) create broad leeway for the admission of statements contained
in—or absent from—public records and reports. Specifically, Rule 803(8) allows for the
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admission of statements in public records and reports that are generated as part of the
office’s legal duties, so long as the opponent has not shown a “lack of trustworthiness” in
the record. Fed. R. Evid. 803(8). Thus, in private civil litigation against the government
of Iran seeking to hold Iran liable for the deaths of several Americans, the court admitted
statements from investigative reports created by the U.S. Army and Department of
Defense under Rule 803(8). Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 59 n.3
(D.D.C. 2018). Importantly, however, “in a criminal case, a matter observed by law-
enforcement personnel” (i.e. statements in police reports) are explicitly not admissible
under this rule. Id.
The hearsay statements of children and persons with certain developmental
disabilities are frequently admitted under Rule 807’s “residual exception” when those
statements relate to abuse suffered by the declarant. See, e.g., Doe. v. Darien Bd. of
Educ., 110 F.Supp.3d 386, 401 (D. Conn. 2015). This practice is common enough that
some state rules of evidence have been amended to include specific hearsay exceptions
explicitly allowing for the admission of such statements. See, e.g., Fla. Stat. § 90.803(23).
I. Former Testimony and Dying Declarations
Rules 804(b)(1) and (b)(2) are two rules that apply only when the declarant is
unavailable to testify in the current proceeding. Rule 804(b)(1) allows for the admission
of testimony of a witness in a prior proceeding when it is offered against a party who had
an opportunity to question the witness in that proceeding. Prior proceedings clearly
include depositions and trials in prior lawsuits, but also include depositions given during
arbitration proceedings, which can be used in subsequent civil litigation provided the
other requirements of the rule are satisfied. See Amobi v. Brown, 317 F. Supp. 3d 29, 39
(D.D.C. 2018) (“The Court finds that the requirements of Rule 804(b)(1) are satisfied
with respect to Nguyen's prior testimony in the arbitration proceeding, because Nguyen
provided relevant testimony under oath, and was cross-examined….”).
Rule 804(b)(2) is the “dying declaration” exception, which allows for the
admission of statements made by an unavailable witness “[i]n a prosecution for homicide
or in a civil case, a statement that the declarant, while believing the declarant’s death to
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be imminent, made about its cause or circumstances.” The fact that the declarant
ultimately died following the statement is not, standing alone, sufficient to allow
admission of a hearsay statement under this rule—there must be evidence that declarant
“believed his death was imminent” at the time of the statement. United States v. Shields,
497 F.3d 789, 793 (8th Cir. 2007).
J. Statements of Personal or Family History
Another exception that applies only when the declarant is unavailable as a witness
is a statement of personal or family history. This exception includes statements about “the
declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by
blood, adoption, or marriage, or similar facts of personal or family history” as well as
statements about “another person concerning any of these facts, as well as death, if the
declarant was related to the person by blood, adoption, or marriage or was so intimately
associated with the person’s family that the declarant’s information is likely to be
accurate.” Fed. R. Evid. 804(b)(4).
Recent cases involving this exception tend to involve immigration matters. For
example, in Bermea v. Limon, the plaintiff sought a declaration that he was a United
States citizen under a statute granting citizenship to children of United States citizens “if
the parent was physically present in the United States for ten years before the person’s
birth, five of which must have been after the parent’s fourteenth birthday.” No. 1:15-CV-
097, 2018 WL 4103011, at *1 (S.D. Tex. July 17, 2018) (citing 8 U.S.C. § 1401(a)(7)).
The plaintiff claimed that his mother satisfied these requirements, but she was
unavailable to testify so he offered an out-of-court statement to prove these facts, arguing
that it was an admissible statement of personal or family history under Fed. R. Evid.
804(b)(4). Id. The court found the exception inapplicable, noting that the statement
regarding the history of the plaintiff’s mother’s place of residence “is not of the kind that
falls within the ambit of the rule.” Id. at *2. In contrast, in Mwaipungu v. Yates, the court
admitted an affidavit from the plaintiff’s father stating that the plaintiff was born in the
United States, finding that “Plaintiff’s father is unavailable and the affidavit contains
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statements of family history pursuant to Federal Rule of Evidence 804(b)(4).” No. 4:14-
CV-1996 JAR, 2017 WL 386543, at *7 (E.D. Mo. Jan. 27, 2017).
K. Declarations Against Interest
Rule 804(b)(3) provides an exception for statements of an unavailable declarant
that are “contrary to the declarant’s proprietary or pecuniary interest” or would have a
tendency “to expose the declarant to civil or criminal liability.” In addition, if the
statement is offered in a criminal case and could expose the declarant to criminal liability,
the statement must be “supported by corroborating circumstances that clearly indicate its
trustworthiness” Fed. R. Evid. 804(b)(3)(B). This exception can be confusing, even for
experienced trial judges. One example of such potential confusion is found in United
States v. Ojudun, --- F.3d ----, 2019 WL 489051, *9 (2d Cir. Feb. 8, 2019). In that case,
the trial court admitted under Rule 804(b)(3) a lengthy confession by the defendant’s
alleged co-conspirator related to criminal activity that the declarant and defendant jointly
participated in. Id. On appeal, the First Circuit concluded that “most of [the declarant’s]
statements, made to a law enforcement official, were designed to minimize his
involvement in the planned fraud and to deflect responsibility onto [the defendant].” Id.
Accordingly, these portions of the confession were not statements against the declarant’s
penal interests, but instead tended to exculpate the declarant from criminal liability. Id.
Further, to the extent the statements did tend to incriminate the declarant, the appellate
court found nothing in the record indicating “that the district court made any inquiry as to
whether there were corroborating circumstances” as required under 804(b)(3)(B). Id.
Given the importance of the statements to the defendant’s conviction, the First Circuit
vacated the judgment and remanded the matter for further proceedings. Id.
L. Forfeiture by Wrongdoing
A party who “wrongfully caused—or acquiesced in wrongfully causing—the
declarant’s unavailability as a witness, and did so intending that result,” forfeits the right
to object to the admission of the declarant’s statements on hearsay grounds. Fed. R. Evid.
804(b)(6). This exception applies “only if the defendant has in mind the particular
purpose of making the witness unavailable.” Giles v. California, 554 U.S. 353, 367
93
(2008) (quotation omitted). Thus, the exception does not apply in cases where “the
defendant had caused a person to be absent, but had not done so to prevent the person
from testifying—as in the typical murder case involving accusatorial statements by the
victim.” Id. at 361. In contrast, United States v. Pratt, involved threatening phone calls
from the defendant that suggested “that [the defendant] would hurt [the witness] in the
future if she disobeyed [him] and testified against him,” which was sufficient to allow for
the admission of the witness’s hearsay statements under a forfeiture by wrongdoing
theory. --- F.3d ----, 2019 WL 489053, *7 (4th Cir. Feb. 8, 2019).
M. Admissions Exceptions
Finally, Rule 801(d) contains two important categories of statements—in the form
of admissions by either witnesses or opposing parties—that under the rule are defined as
“not hearsay.” First, under 801(d)(1), a witness’s prior testimony given under oath is not
hearsay to the extent the prior testimony is either inconsistent with the witness’s present
testimony or, if the testimony is consistent, is offered (i) to rebut a charge that the witness
recently fabricated the testimony or (ii) to rehabilitate the witness’s credibility when
attacked on another ground. This convoluted rule is most commonly utilized when a
witness provides testimony on direct examination that is inconsistent with prior sworn
testimony, such as testimony taken in a deposition or grand jury proceeding. In such
cases, the subsequent inconsistent testimony need not be “diametrically opposed” to the
former testimony in order for the former testimony to be admissible; “evasive
answers, inability to recall, silence, or changes of position” are generally sufficient.
United States v. Dean, 823 F.3d 422, 427 (8th Cir. 2016) (quotation and emphasis
omitted).
The second type of admission that is not hearsay is a statement by a party
opponent under Rule 801(d)(2). This rule covers out-of-court statements offered against
parties where the statements were made by individual litigants or their representatives in
an extraordinarily broad fashion, including a statement that:
was made by the party in an individual or representative capacity;
is one the party manifested that it adopted or believed to be true;
94
was made by a person whom the party authorized to make a statement on the
subject;
was made by the party’s agent or employee on a matter within the scope of
that relationship and while it existed; or
was made by the party’s coconspirator during and in furtherance of the
conspiracy.
Fed. R. Evid. 801(d)(2). Additionally, although lawyers and judges often describe such
statements as “admissions,” this description is not entirely accurate. “The term
‘admissions’ is confusing because not all statements covered by the exclusion are
admissions in the colloquial sense—a statement can be within the exclusion even if it
‘admitted’ nothing and was not against the party’s interest when made.” Fed. R. Evid.
801 (2011 committee notes).
Application of this rule is fairly straightforward when dealing with statements
made by a party or, for corporate entities, officers and official spokespersons for the
entity that would typically speak on the entity’s behalf. See, e.g., United States v.
Lewisbey, 843 F.3d 653, 658 (7th Cir. 2016) (hearsay objection a “nonstarter” when text
messages sent by the defendant were “his own statements and as such are excluded from
the definition of hearsay by Rule 801(d)(2)(A).”); United States v. Browne, 834 F.3d 403,
415 (3d Cir. 2016) (four Facebook chats “that [the defendant] himself participated in,”
were “properly admitted as admissions by a party opponent under Rule 801(d)(2)(A).”);
Van Westrienen v. Americontinental Collection Corp., 94 F. Supp. 2d 1087, 1109 (D. Or.
2000) (rejecting argument that material from defendant corporation’s website was
hearsay, holding instead that “representations made by defendants on website are
admissible as admissions of the party-opponent under FRE 801(d)(2)(A).”); Sea-Land
Serv., Inc. v. Lozen Intern., LLC., 285 F.3d 808, 821 (9th Cir. 2002) (employee of
plaintiff “incorporated and adopted the contents” of an email by forwarding the email to
the defendant with a cover note that “manifested an adoption or belief in the truth” of the
information); United States v. Safavian, 435 F. Supp. 2d 36, 43–44 (D.D.C. 2006)
(similar holding).
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Trickier cases deal with statements that a party may have “adopted” or were
arguably made by a party’s agent. For example, courts are split on whether statements
made by a party’s retained expert are attributable to the party and therefore admissible
under this rule. Federal Circuit Court Judge William Bryson, sitting by designation in the
District of Delaware, recently conducted an extensive overview of this split in authority,
with an exhaustive list of cases finding that prior statements by experts are, or are not,
admissible against a party in subsequent litigation. See Pernix Ireland Pain Dac v.
Alvogen Malta Operations Ltd., 316 F. Supp. 3d 816, 819 (D. Del. 2018) (citing cases
and noting that “[t]here is substantial case law dealing with the admissibility under Rule
801(d)(2) of the testimony, depositions, or reports of an expert against the party that
retained the expert. The case law on this subject is mixed, however, with courts reaching
different results under a variety of different factual circumstances”). After an extensive
analysis, Judge Bryson concluded that the statements at issue in that case were not
admissible under applicable Third Circuit law. Id. at 828.
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GETTING BUSINESS RECORDS ADMITTED
SEAN ANTONE HUNT, ESQ.
THE HUNT LAW FIRM
TRUE IMPEDIMENT TO BUSINESS RECORDS
RECORDS HEARSAYRule 802
1
2
99
RULE 803 EXCEPTIONS
Regular Conducted Activity
RECORDED RECOLLECTION
Establish Witness’ Lack of Memory
Identify and Authenticate Statement
Read the Statement to the Judge/Jury
3
4
100
REGULARLY CONDUCTED ACTIVITY
Made at or near the Time of the Event
Kept in the Ordinary Course
Regular Practice to Make Record
APPLYING THE EXCEPTION
Admissible
Trustworthy
Records Exception
5
6
101
SIGNS OF UNTRUSTWORTHINESS
• Person with knowledge• Complete and IntegratedTrustworthy
• Person with NO knowledge• Too much left outUntrustworthy
AMBIGUOUS, INACCURATE OR INCOMPLETE RECORDS
Be Aware
Translate
Explain
Correct
7
8
102
SELF-AUTHENTICATING BUSINESS RECORDS
Certified Records
Data from Electronics
Electronic Process
Public Records Acknowledged Documents
GETTING BUSINESS RECORDS ADMITTED
SEAN ANTONE HUNT, ESQ.
9
10
103
IV. Getting Business Records Admitted
A. How to Lay a Foundation for a Business Record
ny discussion of the admission of evidence needs to start with Rule 402 of the
Tennessee Rules of Evidence which provides that “Relevant evidence is
admissible unless any of the following provides otherwise: the United States
Constitution; a federal statute; these rules; or other rules prescribed by the Supreme
Court. Irrelevant evidence is not admissible.” Fed. R. Evid. 402. The basic import of
this rule is that anything that is likely to have a bearing on the issues is admissible unless
something makes it inadmissible. Generally, that is not the way that most practitioners
view the rules. Instead, we often look for ways that evidence should be admitted or could
be admitted rather than assuming that it is admissible unless something provides that it is
not. In principle, this means that establishing the foundation for your evidence is highly
important and an art form that we should all practice.
Keep in mind that the true impediment to business records, in most situations, is
going to be the hearsay rule. That is, most business records will fall within the definition
of hearsay found at Rule 801. So, the necessity is to establish that your business records
fall within one of the exceptions to the hearsay rule found under Rule 803, or some other
rule. Most commonly, however, most practitioners are attempting to get their business
records into evidence through Rule 803(5), 803(6), 803(8) 803(15), 803(16), 803(22)
and/or 803(23). These rules provide as follows:
The following are not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness:
* * * *
(5) Recorded Recollection. A record that:
A
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(A) is on a matter the witness once knew about but now cannot
recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh
in the witness's memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be
received as an exhibit only if offered by an adverse party.
(6) Records of a Regularly Conducted Activity. A record of an
act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling, whether
or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) the opponent does not show that the source of information or
the method or circumstances of preparation indicate a lack of
trustworthiness.
* * * *
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(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by law-
enforcement personnel; or
(iii) in a civil case or against the government in a criminal case,
factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.
* * * *
(15) Statements in Documents That Affect an Interest in
Property. A statement contained in a document that purports to
establish or affect an interest in property if the matter stated was
relevant to the document's purpose--unless later dealings with the
property are inconsistent with the truth of the statement or the
purport of the document.
(16) Statements in Ancient Documents. A statement in a
document that was prepared before January 1, 1998, and whose
authenticity is established.
* * * *
(22) Judgment of a Previous Conviction. Evidence of a final
judgment of conviction if:
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(A) the judgment was entered after a trial or guilty plea, but not a
nolo contendere plea;
(B) the conviction was for a crime punishable by death or by
imprisonment for more than a year;
(C) the evidence is admitted to prove any fact essential to the
judgment; and
(D) when offered by the prosecutor in a criminal case for a purpose
other than impeachment, the judgment was against the defendant.
The pendency of an appeal may be shown but does not affect
admissibility.
(23) Judgments Involving Personal, Family, or General
History, or a Boundary. A judgment that is admitted to prove a
matter of personal, family, or general history, or boundaries, if the
matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
Fed. R. Evid. 803. But, each of these exceptions comes with its own problems and
controversies. Below, we talk about a couple of them.
1. Recorded Recollection
The notes to Paragraph 5 of the Federal Rules of Evidence provides us this
discussion of the principal controversy regarding a record of a person’s recorded
recollection. “The principal controversy attending the exception has centered, not upon
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the propriety of the exception itself, but upon the question [of] whether a preliminary
requirement of impaired memory on the part of the witness should be imposed. The
authorities are divided. If regard be had only to the accuracy of the evidence, admittedly
impairment of the memory of the witness adds nothing to it and should not be required.
McCormick § 277, p. 593; 3 Wigmore § 738, p. 76; Jordan v. People, 151 Colo. 133, 376
P.2d 699 (1962), cert. denied 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d 699; Hall v. State,
223 Md. 158, 162 A.2d 751 (1960); State v. Bindhammer, 44 N.J. 372, 209 A.2d 124
(1965). Nevertheless, the absence of the requirement, it is believed, would encourage the
use of statements carefully prepared for purposes of litigation under the supervision of
attorneys, investigators, or claim adjusters. Hence the example includes a requirement
that the witness not have ‘sufficient recollection to enable him to testify fully and
accurately.’”
As stated, one of the first requirements of the rule is that the witness lacks
sufficient memory to “testify fully and accurately” to the matter at hand. Most
practitioners have essentially utilized this particular record concept to simply refresh the
witness’ memory. But the exception, under the federal rules, allows for the record to be
read into evidence, even if it is not received as a document. Nevertheless, the problem
with allowing the document to be read into evidence is the possibility that the mere fact
that a document was created and read to the jury might provide it more weight and
credibility then the testimony would have received if it simply come from the witness’
testimony on examination. With this thought in mind, the simple requirement that the
witness lacks sufficient memory to testify fully and accurately to the information in the
record does not discourage the use of “statements carefully prepared for purposes of
litigation under the supervision of attorneys, investigators, or claims adjusters.” Certainly,
a witness could be coached, inappropriately, of course, to indicate that they lack full and
accurate information on a given subject to allow the statement to be read into evidence.
Nevertheless, the steps to get in this particular piece of evidence are simple:
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Question the witness as to the matter and subject of the statement;
Establish that the witness does not have sufficient memory to testify fully and
accurately to the subject matter of the statement; and
Identify and authenticate the statement as required by the rule and either read the
statement to the jury as the questioning attorney or have the witness read the
statement themselves.
2. Records of a Regularly Conducted Activity
While this is the most common and most widely used business records exception,
it, too is not without some criticisms and shortcomings. One problem with this rule is the
same as the documents above. The concern is that these records will be carefully
prepared for the purposes of litigation under the supervision of attorneys, investigators or
claim adjusters. Then, the admissibility of these records would be sought by practitioners
under the “business records exception.” Often this is the case within businesses who have
common and anticipated exposure to litigation in certain areas of their practice. For
Witness Lacks Memory
Authenticate Statement
Read to Judge/Jury
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example, internal memos and evaluations of products could be carefully scripted to avoid
later litigation associated with a products liability case dealing with the product.
Therefore, for example, in the state of Tennessee, the Tennessee version of this rule also
has a requirement that there be a “business duty to record or transmit” the subject
information. The advisory comment on the Tennessee rule notes that “without that duty, a
business record with lack the trustworthiness necessary to carve out a hearsay exception.”
Nevertheless, under the Federal Rules of Evidence the practitioner need only
establish the following:
The record was made at or near the time of the event by someone with
knowledge;
The record was kept in the ordinary course of business; and
It was the regular practice of the business to make this record.
At Time of the Event
Kept in Ordinary Course
Regular Practice to Make
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B. Applying the Business Records Exception
ssuming that even the proper foundation has been laid for a business record
under the Rule 803 exception, the inquiry does not stop there for the opposing
party, that is. Most of these hearsay exceptions, still come with the caveat that
if there is a genuine issue as to the lack of trustworthiness of a particular record, the
record may be challenged. For example, under Rule 803(6)(E) of the Federal Rules of
Evidence, the rule makes clear that for the rule to apply there must not be evidence from
the opponent that the “source of information or the method or circumstances of
preparation indicate a lack of trustworthiness” of the subject record. Thus, in theory a
record made by a business is admissible, but its admissibility is not guaranteed. In that
circumstance, both the opponent and the proponent should be aware of the circumstances
under which the record was prepared.
Let’s take, for example, a common business record for most businesses, an
accident report or a first report of work injury. These forms, usually held or kept by the
Admissible
Trustworthy
Records Exception
A
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business to record accidents and/or injuries for the purposes of federal reporting,
Worker’s Compensation, and more, come with a business duty to make and keep the
record. But, by their very nature, they also come with the possibility of some admitted
liability. Thus, the impetus to create a record that is overly favorable to the business when
preparing this record is not only present, but of paramount concern. In that situation,
witness statements and/or circumstances recorded or not recorded could easily be
manipulated by the person involved with preparing the record to make sure that the
record is most favorable to the business.
In those circumstances, it may take extrinsic evidence to show that the record
itself is untrustworthy. But the practitioner should be wary and not automatically accept
such a record. Instead, question the witness who offers the record about its authenticity,
about the author of the record, and about additional information that may have been left
out of the record. In other words, who decided what information should be included and
excluded from the record. Obviously, numerous exclusions of relevant information make
the record more susceptible to suspicion and possibly untrustworthiness.
• Person with knowledge
• Complete & IntegrateTrustworthy
• Person with no knowledge
• Too much left outUntrustworthy
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C. Handling Ambiguous, Inaccurate or Incomplete Records
bviously, since the lack of trustworthiness is a hallmark to getting most of
your business records into evidence through the business records exception,
identifying and determining ambiguous, inaccurate or incomplete records
means that there will be problems with the admissibility of those records. Putting aside,
for the moment, any issues regarding spoliation, which might also provide the proponent
of certain records problems, there is the obvious problem of simply being unable to get
the pertinent business records admitted. While there are no catchall concepts for dealing
with problem records, there are a few key components that the average practitioner
should be placing within their toolkit. Here are some concepts.
Make sure to be aware of any ambiguities, inaccuracy or missing components
from your records. This means review the records carefully and compare them
with other copies of records for any inconsistencies. The last thing any
practitioner wants is to be the only one, in the room, who does not know that there
is a difference in the records.
Be prepared to have witnesses explain in ambiguous, inaccurate or incomplete
information. For example, doctors who consistently, within their medical records,
go back and forth between left and right when talking about parts of the body,
need to explain why their records are not consistent about which side of the body
is being treated. If the explanation is inadequate, further witnesses and
information should be sought.
Have witnesses translate and/or interpret records that appear to be ambiguous
from the very beginning. Do not wait until cross-examination and the need to
rehabilitate a witness or a record before asking about information that’s
ambiguous. Remember, ambiguity simply means that the language use is capable
of two perfectly reasonable interpretations. The English language is fraught with
ambiguity. Therefore, there is no shame in having an ambiguous record. The
O
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average practitioner just needs to recognize it and have the record properly
interpreted from the beginning.
If a record can be amended or corrected, have the record amended and corrected
prior to beginning the litigation or, at least, prior to providing the record to the
opposing party. In that, however, do not make the mistake of withholding the
inaccurate record that has been corrected. That simply gives more credibility to
the inaccuracies and makes it more likely that the record will be considered
untrustworthy. Instead, be candid and upfront about the inaccuracy and the
correction of the same.
Be Aware
Translate
Explain
Correct
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D. Self-Authenticating Business Records
emember, under rule 901, to satisfy the requirement of authentication of a
record, or any other item of evidence for that matter, the proponent must
produce evidence sufficient to support a finding that the item “is what the
proponent claims it is.” This can be accomplished in several ways including testimony of
witness with knowledge, non-expert opinion regarding handwriting, comparison by an
expert witness or the trier of fact and more. But, under rule 902, certain records are self-
authenticating. The practitioner should be familiar with all of these self-authenticating
records as they provide an opportunity to easily obtained the admission of a record.
Under the federal rules, the following categories of records are self-
authenticating:
Domestic Public Documents That Are Sealed and Signed
Domestic Public Documents That Are Not Sealed but Are Signed and Certified
Foreign Public Documents
Certified Copies of Public Records
Official Publications
Newspapers and Periodicals
Trade Inscriptions and the like
Acknowledged Documents
Commercial Paper and Related Documents
Presumptions under Federal Statute
Certified Domestic Records of Regularly Conducted Activity
Certified Foreign Records of the Regularly Conducted Activity
Certified Records Generated by an Electronic Process or System
Certified Data Copied from an Electronic Device, Storage Medium, or File
R
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Remember, however, this rule simply negates the necessity of authentication of a
record, in other words, having the witness testified that it is what it is. It does not,
however, satisfy the requirements of, for example, the hearsay rule. But, note that a
certification of a record under this rule allows the practitioner to take a business record
with the certification of the custodian, or another qualified person, an offer that into
evidence without more. The obvious import of this is to prevent the parties from having
to take of deposition of a records custodian simply for the purposes of offering a business
record. On the other hand, note that the rule does indicate that the proponent must give an
adverse party reasonable written notice of the intent to offer the record and make the
record available for inspection. This allows, as we mentioned above, the opposing party
to determine if there is any indication of untrustworthiness associated with the record. It
also allows them to be prepared to make that objection. The rule does not specify how an
objection should be made. But, obviously a motion in limine would satisfy this
requirement.
Take notice of the comment to Paragraph 14 of Rule 902 of the Federal Rules of
Evidence which provides as follows:
Today, data copied from electronic devices, storage media,
and electronic files are ordinarily authenticated by “hash
value.” A hash value is a number that is often represented as
a sequence of characters and is produced by an algorithm
based upon the digital contents of a drive, medium, or file.
If the hash values for the original and copy are different, then
the copy is not identical to the original. If the hash values for
the original and copy are the same, it is highly improbable
that the original and copy are not identical. Thus, identical
hash values for the original and copy reliably attest to the
fact that they are exact duplicates. This amendment allows
self-authentication by a certification of a qualified person
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that she checked the hash value of the proffered item and that
it was identical to the original. The rule is flexible enough to
allow certifications through processes other than comparison
of hash value, including by other reliable means of
identification provided by future technology.
Fed. R. Evid. 902 (Note to Paragraph 14). This provides the reality of why certain
electronic data is considered to be self-authenticating. It is because that data, when it has
been changed or altered, is easier to recognize by persons with knowledge of the
technology. Thus, the committee determined that the expense and inconvenience of
producing an authenticating witness for this evidence was often unnecessary. As a result,
this rule was promulgated in 2017.
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Texts, Social Media, Emails and More:
Getting Yours in and Keeping Theirs Out
Submitted by Sean Antone Hunt
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TEXTS, SOCIAL MEDIA, EMAILS AND MORE
GETTING YOURS IN AND KEEPING THEIRS OUT
COLLECTION AND PRESERVATION
Authenticity
Program
Data Access
• Consider Differing Data Types• Tools for Access Data• Understanding Data• Authenticating Data
1
2
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KEEPING OUT OPPONENT’S EVIDENCE
Look for Embedded HearsayLook for Embedded Hearsay Look for AlterationsLook for Alterations
TEXTS, SOCIAL MEDIA, EMAILS…NOTHING NEW!
7
8
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V. Texts,SocialMedia,EmailsandMore:GettingYoursin
andKeepingTheirsOut
A. Collection and Preservation – How to Safeguard Authenticity
bviously, the best way to obtain data from the opposing party is to utilize a data
retrieval specialist. There are many companies that actually perform this
particular service and will provide you with information in a format that you can
easily evaluate and use. But, if your case does not justify the expense or, for some reason,
you are just determined to do it yourself, here are some considerations for your quest.
1. Types of Data, Production Specifications and Formats - in Detail
Unfortunately, the types of data and the format of the data will vary quite a bit
depending upon the device utilized to create the data. For example, photographs on a
computer may have photographs in one of the 3 common photographic formats, i.e.,
JPEG, PNG or GIF. But, there are numerous other formats that may be associated with a
particular program. Moreover, photographs on a tablet, iPhone or android phone may
have a completely different format as well. The reason for this is that each of these
programs is utilizing its own coding system to encode the photograph and utilize space on
its internal storage. While there are some commonalities and standards, manufacturers of
these devices and their software coders don’t always feel obliged to utilize the customary
format. Thus, when you go looking for this type of information, be prepared to look for
various formats. Here are some of the common formats that you might find for
photographs/images alone:
O
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Name Common Filename
Extensions
Description
Joint
Photographic
Experts Group
(JPEG)
.jpg, .jpeg, .jpe, .jif, .jfif,
.jfi
A commonly used method for
compression for digital images,
particularly those images produced by
digital photography. The degree of
compression can be adjusted, allowing
a selectable trade-off between storage
size and image quality. JPEG typically
achieves 10:1 compression with little
perceptible loss in image quality.
Portable
Network
Graphics (PNG)
.png A dotmatrix type image group file
format that supports lossless data
compression. Reportedly, PNG was
created as an improved, non-patented
replacement for Graphics Interchange
Format (GIF) and is the most widely
used lossless image compression
format on the Internet
Graphics
Interchange
Format
.gif A bitmap image format that was
developed by a team at CompuServe in
1987. It has since come to be one of the
most popular format used on the
Internet due to its wide support and
portability. As a bit of trivia, the
compression technique used to
compress GIF images was patented in
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Name Common Filename
Extensions
Description
1985 and controversy over the
licensing agreement spurred the
development of the PNG format. But,
by 2004, all relevant patents had
expired.
Bitmap Image
File (BMP)
.bmp, .dip A dotmatrix type image file format
used to store bitmap digital images,
independently of the display device
(such as a graphics adapter) especially
on Windows and Mac operating
systems. The BMP file format is
capable of storing two-dimensional
digital images both in monochrome and
color.
Picture
Exchange
(PCX)
.pcx PCX is an image file format developed
by the now-defunct ZSoft Corporation.
It was the native file format for PC
Paintbrush and became one of the first
widely accepted DOS imaging
standards although it has since been
succeeded by more sophisticated image
formats such as BMP, JPEG and PNG.
Tagged Image
File Format
(TIFF)
.tiff, .tif A computer file format for storing
dotmatrix type images, popular among
graphic artists, the publishing industry
and photographers. Tif is widely
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Name Common Filename
Extensions
Description
supported by scanning, faxing, word
processing, optical character
recognition, image manipulation,
desktop publishing, and page layout
applications. There additionally have
been several extensions and technical
notes published with minor extensions
or variations to the format which was
originally created by Aldus
Corporation and later updated by
Adobe Systems.
Encapsulated
Postscript (EPS)
.eps, .epsf, .epsi A postscript is a page description
language in the electronic publishing
and desktop publishing business.
Encapsulated postscript is a standard
postscript document which is intended
to be usable as a graphics file format.
EPS files are more or less self-
contained, and reasonably predictable
postscript documents that describe an
image or drawing. An EPS file is a
postscript program, saved as a single
file that includes a low level resolution
preview encapsulated inside it which
allows some programs to display a
preview on the screen.
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Name Common Filename
Extensions
Description
Portable
Document
Format (PDF)
.pdf Although this format is quite familiar
and developed in the 1990s to present
entire documents including text
formatting and images, it can’t be
forgotten that this format can
encapsulate images, graphics, and
more. The format is based on the
postscript language and each PDF file
encapsulates a complete description of
a fixed layout flat document, including
the text, fonts, vector graphics, raster
images and other information needed to
display it.
And, keep in mind, this is only a few of the possible image file formats that the
practitioner might encounter. In fact, often many programs and applications create their
own image file format and/or compression standard for their own uses. Thus, the number
of file formats is nearly unlimited. Likewise, this also only includes image files and does
not include items such as video, documents, SMS messages, MMS messages, and more.
With all of that said, if the average practitioner does not obtain an expert to obtain
the documents themselves, the next best thing will be to have the opposing party to
produce printouts of the subject information. In other words, proud of the Facebook page,
or a text message conversation, eliminates the need to know what file format is being
used and how to access that file format. Note that Rule 34 of the Tennessee Rules of Civil
Procedure allows a party to request “electronically stored information (including
writings, drawings, graphs, charts, photographs, sound recordings, images, phonorecords,
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and other data and data compilations stored in any medium from which information can
be obtained either directly or, if necessary, after translation by the respondent into a
reasonably usable form).” So, unless you have some suspicion that the opposing party is
not producing all of the relevant information, it is probably best to have them produce the
information in a format that is directly obtainable and usable by your expert, staff, etc.
2. ObtainingEvidence:Smartphones,PCsandTablets,Third
Parties,FlashDrivesandExternalHardDrives,CloudStorage
Obtaining evidence from smart phones, PCs and tablets can be quite tricky and
encompassing. Unlike the current digital thieves of the day, most practitioners do not
have with them the devices necessary to of the average smart phone, PC or tablet. But
such devices are available. For example, cnet.com in 2008 reported of a device that it
calls a CSI Stick or Cellular Seizure Investigation Stick. Purportedly developed primarily
for law enforcement surveillance, the device was also available to the public.
Manufactured by a company called Paraben, they created a device that was a self-
contained module about the size of a cigarette lighter. The device plugs directly into most
Motorola and Samsung cell phones to capture all data they contain. An updated and
slightly modified version of that device marketed as a Paraben Phone Recovery Stick is
available through Amazon but hasn’t mixed reviews about the ability to recover deleted
data. I suspect, however, that
the use of this device to
recovered current data that has
not been deleted would be
seamless. Nevertheless, paying
the price tag of $119 to test it
may not be worth the effort.
Instead, I would suggest for this purpose, you contact the service such as Verity
Digital Forensics out of Memphis for recovery of electronic evidence. A service such as
Figure 1. Available at Amazon.com
130
this will provide you expert assistance in preserving, recovering, examining and
presenting the electronic evidence from your case. Plus, it will also satisfy the needs of
your case regarding any chain of custody and/or authentication requirements.
But, if you must obtain the information yourself, once you’ve obtained the
electronic data from the smart phone, PC or tablet, remember that you must authenticate
that information in order to get it into evidence. That is, Rule 901 of the Tennessee Rules
of Evidence provides the guidelines in Tennessee for the authentication and identification
of evidence in order for it to be admissible at trial. It provides, in pertinent part, “the
requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to the court to support a finding by the trier of fact that
the matter in question is what its proponent claims.” Thus, while this is open ended, it
still can be quite challenging when we are talking about obtaining information off of a
smart phone, PC or tablet. One possible way of authenticating that information is to
simply get the party from whom it was taken to identify and authenticate the existence of
the information. But a crafty opposing party will likely defeat even the most well-
intentioned practitioner trying to authenticate the evidence in that fashion. Thus, it may
be incumbent upon you to actually show that the information was taken from the
opponent smart phone, PC or tablet and show the timing, creation, and author of the
information.
One court has stated that this can be done using metadata. The court stated
“[a]nother way in which electronic evidence may be authenticated under Rule 901(b)(4)
is by examining the metadata for the evidence.” Lorraine v. Markel Am. Ins. Co., 241
F.R.D. 534, 547 (D. Md. 2007). As discussed more fully below, metadata is “data about
data” and provides information about how, when, and by whom the data set or document
was collected, created, accessed or modified. This will allow the practitioner to avoid
spurious allegations such as the opponent maintaining that the image, document, or other
data taken from the smart phone or tablet has been modified or changed in some fashion.
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But, once you have overcome the problems with obtaining and authenticating data
you received from a smart phone, PC or tablet, it becomes another matter altogether to
obtain similar type data from 3rd parties and/or cloud storage. Thanks to the Stored
Communications Act (18 USC §§2701-2712), getting this information from the Internet
Service Provider, Facebook, twitter, etc. can be quite challenging. Purportedly, the
purpose behind the Stored Communications Act was to create 4th amendment like privacy
protection for email and other digital communications stored on the Internet. However,
since the 4th amendment applies to governmental entities, it shouldn’t apply to
nongovernmental parties who are part of a lawsuit. But, social media providers such as
Facebook have taken a different position. For example, Facebook on its help center page,
in response to the frequently asked question “May I obtain any account information or
account contents using a subpoena” answers by stating “Federal law does not allow
private parties to obtain the content of communications (example: messages, timeline
posts, photos) using subpoenas. See the Stored Communications Act, 18 U.S.C. § 2701 et
seq.”
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Although the skeptic in us might have a different view of this, this particular
position appears to have merit. 18 USC S §2702 provides that an entity providing
“electronic communication service” or an entity providing “remote computing service” to
the public may not divulge to any person or entity the contents of any communication
that the service has. Ignoring for now the definitions of electronic communication service
and remote computing service, it is important to note that at least one court has held that
the Act “requires that entities such as YouTube who provide ‘remote computing service
to the public shall not knowingly divulge to any person or entity the contents’ of any
electronic communication stored on behalf of their subscribers, and ECPA § 2702
contains no exception for disclosure of such communications pursuant to civil
discovery requests.” Viacom Int'l Inc. v. YouTube Inc., 253 F.R.D. 256, 264 (S.D.N.Y.
2008). The concept seems to be quite established, notwithstanding the obvious argument
that the 1986 statute was enacted at a time when social media did not exist. Take for
example what the federal court in Crispin v. Christian Audigier, Inc. stated:
Congress passed the Stored Communications Act in 1986 as part of the
Electronic Communications Privacy Act. "The SCA was enacted because
the advent of the Internet presented a host of potential privacy breaches that
the Fourth Amendment does not address." Quon v. Arch Wireless Operating
Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008) (citing Orin S. Kerr, A User's
Guide to the Stored Communications Act, and a Legislator's Guide to
Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004)). The SCA
prevents "providers" of communication services from divulging private
communications to certain entities and individuals. Kerr, supra, at 1213. It
"creates a set of Fourth Amendment-like privacy protections by statute,
regulating the relationship between government investigators and service
providers in possession of users' private information." Id. at 1212. First, the
statute limits the government's right to compel providers to disclose
information in their possession about their customers and subscribers. 18
U.S.C. § 2703. "Although the Fourth Amendment may require no more than
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a subpoena to obtain e-mails, the statute confers greater privacy protection."
Kerr, supra, at 1212-13. Second, the statute limits the right of an Internet
Service Provider ("ISP") to disclose information about customers and
subscribers to the government voluntarily. 18 U.S.C. § 2702.
The statute distinguishes between a remote computing service ("RCS")
provider and an electronic communication service ("ECS") provider,
establishing different standards of care for each. Quon, 529 F.3d at 900. The
SCA defines an ECS provider as "any service which provides to users
thereof the ability to send or receive wire or electronic communications."
18 U.S.C. § 2510(15). With certain enumerated exceptions, it prohibits an
ECS provider from "knowingly divulg[ing] to any person or entity the
contents of a communication while in electronic storage by that service."
Id., §§ 2702(a)(1), (b). The SCA defines [RCS as "the provision to the
public of computer storage or processing services by means of an electronic
communications system," id., § 2711(2), and in turn defines an electronic
communications system (as opposed to an electronic communication
service) as "any wire, radio, electromagnetic, photooptical or
photoelectronic facilities for the transmission of wire or electronic
communications, and any computer facilities or related electronic
equipment for the electronic storage of such communications," id., §
2510(14). The SCA prohibits an RCS provider from "knowingly
divulg[ing] to any person or entity the contents of any communication
which is carried or maintained on that service." Id., § 2702(a)(2). "[A]
person who does not provide an electronic communication service [or a
remote communication service] can disclose or use with impunity the
contents of an electronic communication unlawfully obtained from
electronic storage." Wesley College v. Pitts, 974 F.Supp. 375, 389 (D. Del.
1997) (citing 18 U.S.C. § 2702(a)).
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An ECS provider is prohibited from divulging only "the contents of a
communication while in electronic storage by that service." 18 U.S.C. §
2702(a)(1). "Electronic storage" is "(A) any temporary, intermediate storage
of a wire or electronic communication incidental to the electronic
transmission thereof; and (B) any storage of such communication by an
electronic communication service for purposes of backup protection of such
communication." Id., § 2510(17). By contrast, an RCS provider may not
divulge the content of any communication received by electronic
transmission that is carried or maintained on its service for a customer or
subscriber "solely for the purpose of providing storage or computer
processing services to [the] subscriber or customer, if the provider is not
authorized to access the contents of [the] communications for purposes of
providing . . . services other than storage or computer processing." Id., §
2702(a)(2).
* * *
Although some courts have considered the SCA's application to certain
types of providers, none appears to have addressed whether social-
networking sites fall within the ambit of the statute. In Quon, the Ninth
Circuit considered whether a party providing text-messaging pager services
was an ECS provider or an RCS provider. The Ninth Circuit concluded that
defendant provided a "service" that enabled the plaintiff and others to "send
or receive . . . electronic communications," namely text messages, i.e., that
it was an ECS. Quon, 529 F.3d at 901. By contrast, an RCS provider must
provide "computer storage or processing services." Although the pager
service archived text messages on its server, and was therefore storing the
messages, Congress contemplated that an ECS provider would provide
some storage as well. Id. (citing 18 U.S.C. § 2510(17), which states that an
ECS provider may provide storage of communications for backup purposes
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and describes a temporary, intermediate storage of communications
incidental to the electronic transmission thereof). The Ninth Circuit
concluded that the text-messaging pager service "served as a conduit for the
transmission of electronic communications from one user to another, and
stored those communications 'as a "backup."'" and as a consequence, held
that it constituted an ECS provider. Id. at 902 (quoting Theofel v. Farey-
Jones, 359 F.3d 1066, 1070 (9th Cir. 2004)).
* * *
Judge McDermott cited Quon for the proposition that a company is an ECS
provider if it "served as a conduit for the transmission of electronic
communications from one user to another, and stored those communications
as a backup for the user." Applying this definition, Judge McDermott held
that for Facebook, MySpace, or Media Temple to be considered ECS
providers, they had to "provide internet access or operate as conduits for the
transmission of data from one location to another." Because the websites'
messaging services are used solely for public display, he found that they
did not meet this definition.
The court concludes that, although largely sound, Judge McDermott's
reading of Quon and the SCA is contrary to law in certain respects. First,
Judge McDermott interpreted the descriptive language in Quon as a broadly
applicable definition of an ECS provider rather than as a description of a
particular type of provider, i.e., a text-messaging pager service. Treating
Quon's formulation as the exclusive definition of ECS provider, however,
improperly limits the reach of the statute, which extends to "any service
which provides to users thereof the ability to send or receive wire or
electronic communications." 18 U.S.C. § 2510(15) (emphasis supplied).
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Judge McDermott also found that Facebook, MySpace, or Media Temple
engaged in public messaging only and concluded that this fact was
dispositive. In reaching this conclusion, Judge McDermott apparently
misconstrued the information plaintiff provided concerning the nature of the
services the third-party companies provided. It is clear, for instance, that
Media Temple provides "webmail," which is a "service that allows users to
view email messages." In addition plaintiff stated that both Facebook and
MySpace provided "private messaging services."
Recognizing that all three sites provide private messaging or email services,
the court is compelled to apply the voluminous case law cited above that
establishes that such services constitute ECS. Moreover, the information the
parties gave Judge McDermott establishes that Facebook wall postings and
the MySpace comments are not strictly "public," but are accessible only to
those users plaintiff selects. The court therefore finds relevant, if not
controlling, the authority regarding private electronic bulletin board
services ("BBS").
Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 971-80 (C.D. Cal. 2010). As a
result, at least one federal district court has held that the protections of the Stored
Communications Act applies to social media companies and prevents an individual from
sending out a simple subpoena to them to obtain that information. In general, it seems
that the idea is that the providers of that information shouldn’t have access to the
information themselves and therefore should not have the ability to divulge that
information to any other 3rd party. It appears, however, that the issue, although far from
completely settled, has pretty much been decided by this previous decision. That means,
for the average practitioner, sending out a subpoena for Facebook, text, and other
information from the provider is not going to work.
Note, however, that this does not protect the opposing party from disclosing their
own communications and Facebook or other social media postings. Instead, this statue
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stands for the sole proposition that the platform provider, i.e., Facebook, cannot be
compelled, by subpoena or otherwise, to provide this information under the Stored
Communications Act.
In short, just the discussion of this topic alone, which appears to be quite
unsettled, could take up the space of an entire book. But for practical purposes, just be
aware that in order to get information from 3rd parties or cloud storage, the average
practitioner will need permission from the owner. It means asking the owner for
permission or for the information specifically.
3. MetadataExplained
In order to understand how to safeguard the authenticity of your electronic
evidence, i.e., text messages, social media, emails etc., the practitioner has to have a
working understanding of metadata. As you will see, metadata is the way that the parties
can determine if electronic information has been modified and is no longer authentic.
With the right expert testimony, an expert can tell whether or not a picture, an email, a
text message, etc. has been modified from its original version by utilizing metadata.
Wikipedia defines metadata as “data [information] that provides information
about other data.” There are 3 distinct types of metadata, descriptive metadata, structural
metadata and administrative metadata. Descriptive metadata describes a resource for the
purposes of identification and discovery. It includes elements such as title, abstract,
author and keywords. Structural metadata is metadata about containers of data and
indicates how compound objects are put together, for example, how pages are ordered to
form chapters. It describes the types, versions, relationships and other characteristics of
digital materials. Administrative metadata provides information to help manage a
resource, such as when and how it was created, file type and other technical information,
and who can access it.
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This concept is not foreign to most of us. In fact, we’ve probably used it for many
years. Take, for example, the card catalog that libraries used prior to online cataloging of
books and information. The cards in the Dewey decimal system format made the original
form of metadata. Now, however, in digital forms, metadata quite often goes along with
the actual file itself. Because the metadata is not always readily apparent and viewable in
the application, most of us forget about its existence. Nevertheless, this type of data is
still there. Again, according to Wikipedia “[t]here are different metadata standards for
each different discipline (e.g., museum collections, digital audio files, websites, etc.).
Describing the contents and context of data or data files increases its usefulness. For
example, a web page may include metadata specifying what software language the page
is written in (e.g., HTML), what tools were used to create it, what subjects the page is
about, and where to find more information about the subject.”
Knowing this fact opens up a proverbial Pandora’s box. It provides infinite
possibilities as well as infinite problems. That is, metadata, for example, may be written
into digital photograph files to identify who owns it, copyright information, contact
information, brand of camera or model of camera used to create it and more. Metadata is
also particularly useful in video where the information about its contents such as
transcripts of conversations and text descriptions of the scenes can be inserted into the
exact same file as the video.
The concept of metadata is not foreign or complex. What is somewhat complex
and problematic, however, is the idea of accessing and obtaining the metadata. Metadata
requires the user to utilize the specific language in standard of the metadata in order to
read it. In other words, if the data is in HTML or XML, an application that understands
and processes these languages will be necessary for the average individual to view the
metadata. Thus, again, the possibilities are endless and, as a result, points the average
practitioner back to an expert in order to obtain the metadata. Although there are online
metadata viewers, providing that information to an unknown third-party may be
problematic, ethically speaking. In other words, you would be providing sensitive and
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confidential client information to an unknown website. This, of course, is not the optimal
solution. Therefore, if you insist upon doing this type of search of metadata yourself, then
I suggest that you invest in software specific for viewing metadata. Wikipedia provides
an excellent comparison chart and table of several metadata viewing/editing programs at
the following link: https://en.wikipedia.org/wiki/Comparison_of_metadata_editors.
B. How to Authenticate Electronic Evidence and Get It Admitted
1. EmailMessages,ChainsandAttachments
Once you have gotten over the hurdle of attaining the electronically stored
information you desire, your next question is going to be is that information complete and
authentic. In other words, has the information somehow been changed, abridged or
otherwise modified? For example, with the use of the tools available to the average
person, such as Photoshop, photographs can be modified in such a way that changes to
the photograph, visually, are nearly imperceptible. So how do you determine if the
information you received is authentic.
This is where metadata becomes your friend. As you may recall, metadata is data
about data. As result, the metadata for certain electronically stored information will
provide you with a brief look at the history of the ESI including its creation, its
modification and more. But getting to this information, under normal circumstances, is
not easily done without expert help. While Photoshop, for example, will show you the
metadata associated with the photograph, if you download the photograph from a social
media site, it may be nearly impossible to tell, from the metadata alone, if the photo has
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been modified. This is because the original metadata may have been overwritten by the
social media site.
So, the best option to determine the authenticity of any particular evidence is to
obtain that evidence in its native format. In other words, obtaining a CD or flash drive
version of data is preferable to getting a print out of the exact same data. With the CD or
flash drive version, the metadata will be available for review. With the printout, of
course, there is no metadata to review.
Therefore, when it comes to authenticating email messages, for example, it helps
to remember Rule 901 of the Federal Rules of Evidence. It provides, as you may recall,
“[t]o satisfy the requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Assuming that the metadata that you received with the email does
not indicate any modifications, simply having a witness testified that the email is what it
said it was or is from the person it purports to be is adequate enough to get the email
admitted. And recall that Rule 1003 provides that a “duplicate is admissible to the same
extent as the original unless a genuine question is raised about the original's authenticity
or the circumstances make it unfair to admit the duplicate.” That means that your email is
admissible the moment it has been identified by a witness with knowledge, assuming that
the email is not hearsay or inadmissible for other reasons.
The same is true for an email trail or chain and the attachments. These are also
admissible upon authentication by a person with knowledge. The easiest way to
authenticate these is simply to get the person who sent the email to identify it or the
person who receive the email to identify it and its attachments.
2. SocialMedia,InstantMessagesandBlogs
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Because the authentication of social media, instant messages and blogs still falls
under Rule 901, there authentication and admission are essentially the same as email
messages and attachments. Therefore, we need not reiterate those points here. However,
there are some considerations for social media and blogs that are not considerations for
emails and attachments. Social media, for example, is subject to hacking quite often.
Thus, it may be possible for someone to actually log into someone’s social media account
and post something on their timeline or as a part of their twitter feed without the person’s
actual knowledge or permission. In that situation, it might be possible to authenticate the
message, but the message itself might not be from the person who owns the account. The
same is true for blogs and comments to blogs as well. In these situations, recall that Rule
1003 requires a genuine question be raised about the original’s authenticity. Here a
genuine question can be raised by the owner of the social media account or blog
testifying that their accounts have been hacked.
Keep in mind, that with the appropriate expert assistance, the opposing party can
actually determine if the account owner actually is sincere about having their social
media account hacked or, on the other hand, if they are simply being disingenuous. For
one thing, once the social media account has been hacked, it has certain characteristics
that can be tracked. That is, rarely do hackers gain access to the account owner’s account
simply to post a single posting. Instead, most often, they post multiple postings and grab
information about friends, contacts, etc. Finding that on a social media account will help
to confirm that the social media account has actually been hacked.
3. TextsandOtherSmartPhoneEvidence
More often than not, the issue of whether or not a text message or other smart
phone evidence is authentic depends more on where the evidence was obtained. If the
evidence has been obtained through some expert, then the expert can testify that the text
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message or phone log, etc. actually came from the phone that they were provided. In
other words, they can usually testify to the chain of custody of the smart phone to show
that the smart phone they were given, assuming it was one belonging to one of the parties
or someone else at interest, actually contained the information they pulled.
But, again, remember that authenticity can be obtained for these items directly
from the party who provided the evidence. Again, simply asked the owner if the text
message, phone log, etc. belongs to them.
4. Voicemail,VideoandAudioRecordings
Finally, voicemail, video and audio recordings are similar in their authenticity
when considered under Rule 901. But keep in mind that Rule 1001 specifically mentions
recordings and photographs and places them under the purview of Rule 1003. This means
that unless there is a genuine issue as to the authenticity of these items, even a duplicate
of the items is admissible. Likewise, consider the fact that subdivision (b)(5) of Rule 901,
for example, specifically talks about a way of authenticating a person’s voice as in the
voice of an individual on a voicemail message. Likewise, subsection (b)(6) talks about a
telephone conversation as well.
C. Getting Their Electronic Evidence Thrown Out of Court
As we all know, Rule 402 of the Federal Rules of Evidence provides that
“[r]elevant evidence is admissible unless any of the following provides otherwise: the
United States Constitution; a federal statute; these rules; or other rules prescribed by the
Supreme Court.” Thus, we can start with the assumption that most of your opponent’s
evidence will be admissible unless some rule provides that it is not. Therefore, the most
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direct ways of getting your objections to any evidence, before it is offered to the trier of
fact, is to simply file a motion in limine prior to trial.
For obvious reasons, crucial evidence which may be controversial should be
tested for admissibility in a motion in limine prior to trial. For example, in a defamation
case where the plaintiff has alleged defamatory statements made by one of his creditors to
one of the national credit reporting agencies by reporting one of his credit accounts
involved in a bankruptcy, the question of admissibility of the fact that the plaintiff's wife
had in fact filed bankruptcy may not be easily seen at the beginning of the case. If, in this
example, the plaintiff had a bankruptcy reported on his credit account, but he had not
filed for bankruptcy, the fact that his wife filed for bankruptcy and had privileges on his
credit cards may or may not be admissible. As a result, the best method for obtaining the
admission of this evidence or, for that matter, it’s exclusion, is to seek the guidance of the
court prior to trial with a motion in limine.
D. Applying the Hearsay Rule
1. IsComputer‐GeneratedandCellPhoneInformationHearsay?
Any discussion of whether computer-generated or cell phone information is
hearsay needs to start with a valid and good understanding of hearsay. The Tennessee
appellate courts have dealt with this very issue and have provided a fairly universal
concept for hearsay. Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” State v. Meeks, 867 S.W.2d 361, 375 (Tenn. Crim. App. 1993).
Essentially, if you understand the role of this rule, its primary purpose is to limit the
factfinder’s consideration to reliable evidence received from witnesses who are under
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oath and subject to cross-examination. In fact, rule 801 of the Tennessee rules of
evidence defines a statement and a declarant, subject to the hearsay rule as follows:
(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal
conduct of a person if it is intended by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
Tenn. R. Evid. Rule 801.
The federal rule is similar and states as follows:
(a) Statement. “Statement” means a person's oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
Fed. R. Evid. 801. Thus, the true question becomes, with computer-generated
information, who is the “person” who makes the statement? Who is the “person” who
intends the statement to be an assertion? Thus, the court in State v. Meeks was faced with
the question of whether a printout, which contained the date, day and time of a call, the
number called and the number from which the call was made, was admissible
notwithstanding the hearsay rule. The court noted that “[a]lthough a computer printout of
information from a databank programmed into the computer by a person may be viewed
as a person's statement for hearsay purposes, the printout of a telephone trace does not
necessarily represent evidence of computer stored declarations other than the fact that a
certain telephone number exists.” State v. Meeks, 867 S.W.2d at 375. The Meeks court
stated:
The leading case regarding hearsay and computer generated telephone
tracing systems appears to be State v. Armstead, 432 So.2d 837 (La.1983)
in which the court stated the following:
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From our understanding of the record, however, we are not dealing
with computer stored human statements or assertions which have
been retrieved from the computer and introduced into evidence in
printout form. The invention of electronic switching systems in
telecommunications has eliminated the need for manual
involvement in a telephone trace. Since the computer is actually
responsible for making the telephone connection, the computer can
be programmed to record the source of any incoming call. Thus, the
printout of a telephone trace in this type of system does not represent
evidence of computer stored declarations. The computer generated
data by recording the source of various telephone connections as it
was making them. Therefore, the evidence in this case was
generated solely by the electrical and mechanical operations of the
computer and telephone equipment, and was not dependent upon the
observations and reporting of a human declarant.
Id. at 839–840. The court considered the printout to be a “self-generated
record of its operations, much like a seismograph can produce a record of
geophysical occurrences, a flight recorder can produce a record of physical
conditions onboard an aircraft, and an electron microscope can produce a
micrograph, which is a photograph of things too small to be viewed by the
human eye.” Id. at 840 (footnote omitted).
* * *
In this case, the record reflects that persons with special knowledge about
the operation of the computer system gave evidence about the accuracy and
reliability of the computer tracing so as to justify the admission of the
computer printouts. The rule against hearsay is not implicated.
State v. Meeks, 867 S.W.2d at 375–76 (emphasis added).
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In essence, whether there is an argument regarding computer-generated
information and cell phone information being hearsay depends upon the type of
information. If the information is simply stored recollections of human statements or
assertions, then the argument above does not apply. On the other hand, if the information
is simply a stored record of computer interactions, then the rule against hearsay is not
implicated.
2. AdheringtotheHearsayRule
Now that we have established that certain information, generated by computers
and so on, is not hearsay. The next question becomes: what about the information that is
a recorded recollection of a human statement or assertion? In other words, information
from Facebook, Twitter, Instagram, etc. are clearly assertions and statements of human
beings. How do you adhere to the hearsay rule but still managed to offer into evidence
the statements?
In this situation, the practitioner must follow the general rules of hearsay in order
to obtain the admission of their proposed evidence. Thus, if the practitioner has a
Facebook post from an individual or a witness, and the post is offered for the truth of the
matters stated in the post itself, then the practitioner must endeavor to meet one of the
hearsay exceptions. Most often, the hearsay exception that will apply is Rule 803 (1.2)
which is an admission by a party opponent. That is, most often you will be using the
statements of the opponent against them.
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3. ApplyingHearsayExceptionstoEmail,TextandSocialMedia
Rules 801 and 803 of the Federal Rules of Evidence provide for the exceptions to
the hearsay rule. The rules, collectively, provide for 25 different exceptions to the general
hearsay exclusionary rule. But, most likely only 4 will be useful to the average
practitioner in most circumstances. These are: 801(d)(2) An Opposing Party’s Statement;
803(1) Present Sense Impression; 803(3) Then-Existing Mental, Emotional or Physical
Condition; and 803(5) Recorded Recollection. Most social media, email and text
messages will fall into one of these 4 categories.
801(d) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay:
* * * *
(2) An Opposing Party's Statement. The statement is offered against an
opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the
subject;
(D) was made by the party's agent or employee on a matter within the scope of
that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the
conspiracy.
This is the most obvious of the hearsay exceptions that might apply to email, text
messages or social media. In most situations using a post or email against another party
opponent will be the most relevant and efficient use of the evidence in any event. That is,
an email from an opposing party admitting or denying something relevant to the litigation
is likely to be the most useful information you have. As I mentioned earlier, in a previous
case, I was able to use posts from a workers’ compensation claimant to show that the
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workers compensation claimant, whose job was to drive a forklift, had admitted that she
was attending, competing and traveling to a motorcycle convention in another state. Her
own statements in her Facebook posts were the best evidence of her capabilities in the
workers compensation case.
803(1) Present Sense Impression. A statement describing or explaining an
event or condition, made while or immediately after the declarant perceived
it.
and
803(3) Then-Existing Mental, Emotional, or Physical Condition. A
statement of the declarant's then-existing state of mind (such as motive,
intent, or plan) or emotional, sensory, or physical condition (such as mental
feeling, pain, or bodily health), but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the
validity or terms of the declarant's will.
These two exceptions might also apply. Although it will be difficult to find a situation
where the existing mental or emotional condition of an individual is recorded in a social
media, text message or other email where it is not also an admission by a party opponent,
there are some possibilities. For example, a practitioner may find that they want to utilize
their own’s client’s social media, text messaging or emails to assert a mental, emotional
or physical condition. In that case, utilizing this particular exception will be most useful.
Take for example a lawsuit where your client needs to prove that the client was not aware
of a certain particular fact. You may find yourself offering emails, social media or text
messages that suggest facts that were contrary to that knowledge. In other words, you
might be able to prove that your client did not know, for example, of the existence of a
defect on their property at the time a premises liability plaintiff encounters the defect and
gets injured.
803(5) Recorded Recollection. A record that:
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(A) is on a matter the witness once knew about but now cannot recall
well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh
in the witness's memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an
exhibit only if offered by an adverse party.
Of course, for this exception to be utilized, the witness must be on the stand and unable to
remember some particular fact that they did, in fact, know earlier. As you may recall,
common law rules allow a witness to have the recollection refreshed by the written
contents of the document. However, the document itself is not admissible under the
common law rule. Under this rule, however, the document can be use and adopted by the
witness and, if admitted, the record can be read into evidence, but not received as an
exhibit. Thus, utilizing this rule, text message and/or an email could be utilized by a party
to not only refresh the memory of a witness but also to establish the contents of that
email, text message and, possibly, social media post.
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VI. Expert Witnesses: How to Apply the Rules
A. Determining the Admissibility of Expert Witness Testimony
(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (B)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(a) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (B)(4)(c) of this rule, concerning fees and expenses as the court may deem appropriate.
(b) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(B) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means,
(c) Unless manifest injustice would result,
(i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivision (B)(4)(a)(ii) and (B)(4)(b) of this rule; and
(ii) with respect to discovery obtained under subdivision (B)(4)(a)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (B)(4)(b) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception; and
(b) helpful to a clear understanding of the witness's testimony or to a determination of a fact in issue.
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Rule 702. Testimony by Expert Witnesses
(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.
Rule 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.
Rule 704. Opinion on an Ultimate Issue
(a) In General—Not Automatically Objectionable. Testimony in the form of an opinion or inference otherwise admissible is not objectionable just because it embraces an ultimate issue.
(b) Exception. Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.
Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion
Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross examination.
B. Expert Witness Reports - Spotting Red Flags
The content of an expert witness report will depend on the specific facts of the case and the
expert’s planned testimony. However, many expert reports – even from very different disciplines – share
similar organizational features. For instance, most include statements of:
ꞏ Qualifications
ꞏ The assignment given to the expert (i.e. evaluating medical records / recreating
accident conditions)
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ꞏ Documents reviewed and research undertaken
ꞏ The expert’s opinions
ꞏ Any necessary disclaimers
ꞏ Signature and date
Most reports also include a section for attachments containing relevant documents, like
the expert’s CV. When working with an expert witness, it’s wise to provide a basic outline like
this one. Advise the witness to keep comments short and to the point within each section.
Once you review your opponent’s expert’s report, you’ll want to analyze all the
information that both supports and undercuts the opposing expert’s opinion. Be sure to closely
review and scrutinize the expert’s report, with an eye to every single error or inconsistency.
When you have a complete and thorough understanding of both the expert’s testimony and
report, you can start to identify some of the foundational weaknesses outlined below, and build
an effective cross-examination strategy around them.
In a foundational attack, your cross-examination should chiefly exploit the following
areas:
1. the opposing expert’s investigation of the case at hand,
2. the opposing expert’s methodology, and
3. the opposing expert’s conclusions.
There are several ways to approach weaknesses in each of these areas. Which ones you
choose to use will depend on the idiosyncrasies of your case and the opposing expert.
C. Attacking Credibility
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Exploring prior testimony of the expert can be helpful. If the witness always testifies on
one side that can be used to undermine credibility. Obviously attacking the credentials of the
expert undermines credibility.
To challenge the expert’s investigation of the case, you can exploit deficiencies in the
opposing expert’s understanding of the facts. Or you can highlight problems with the how the
investigation was conducted.
One of the benefits of attacking the facts of the opposing expert’s opinion is that it lets
you stay on familiar ground during cross examination, since you already know the facts inside
out. Additionally, you can avoid getting mired in a complex argument about the science; which
can be a potentially confusing line of questioning for the jury.
Alternatively, if you can’t challenge the facts, you can challenge the investigation itself.
You will want to exploit any differences between the opposing expert’s investigation and
standard procedures by asking questions that compare his or her investigation against model
investigatory protocol. Be sure to highlight investigatory measures that might have been more
appropriate for the case at hand that the expert did not follow.
D. Establishing (or Challenging) Character and Competency
E. Impeaching an Expert Witness
Impeachment of an expert is the same as impeaching any witness. Prior inconsistent
statements and showing of bias. One attack is premised on assumptions. Where the adverse
expert’s conclusions are premised on certain assumptions, a skillful cross can begin with an
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agreement that the quality of the opinion depends on the correctness of the assumptions. Here,
the list of potential cross-examination points includes:
the danger for experts of relying on assumptions
assumptions made in this case
the concession that if the assumed facts are wrong then the opinion might be
wrong as well
F. Dealing with Hearsay
Rule 703. Bases of an Expert’s Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.
Experts may in certain circumstances rely on inadmissible evidence including hearsay.
G. Handling Court-Appointed Expert Witnesses
Court appointed experts are still experts and treatment of hem should not be significantly
altered by that status. A little more care is required and obviously the attack based upon them
being a “hired gun” is no longer available.
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Tips for Getting Demonstrative, Physical, Scientific and Other Evidence Admitted
Submitted by Robert J. Kasieta
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How to Get Hearsay, Emails, Business Records, Social Media, and More Into Evidence
Tips for Getting Demonstrative, Physical, Scientific, and Other Evidence Admitted
(30 minutes)
1
2
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Key Considerations
▪ Seek stipulations
▪ Provide source/supporting data
▪ Seek prior court approval–Motions in limine are not just for limiting
▪ Use the right sponsoring witness
▪ Don’t forget judicial notice
Thank you for your kind attention.
3
4
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Ethical Considerations for HandlingEvidence in Litigation
Brock J. Specht
Nichols Kaster, PLLP
Handling Evidence in Litigation
• Zealous representation of the client is almost always the litigator’s primary objective.
• The ethical rules surrounding the handling of evidence can occasionally conflict with this objective.
• Litigators need to balance zealous advocacy with their ethical obligations and the right to a “just, speedy, and inexpensive determination.” FRCP 1.
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Sources of Authority
• ABA Model Rules of Professional Conduct
• State Ethics Rules
• Restatement of the Law Governing Lawyers
• ABA Standing Committee on Ethics and Professional Responsibility
Key Rules• Model Rule 1.1: Competence
• Model Rule 1.6: Confidentiality
• Model Rule 3.3: Candor
• Model Rule 3.4: Fairness
• Model Rule 3.6: Publicity
• Model Rule 4.2: Comm’s w/ Represented
• Model Rule 4.3: Dealing w/ Unrepresented
• Model Rule 4.4: Rights of Third Persons
• Model Rule 5.1: Supervision of Others
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Competence
Competence
• Model Rule 1.1:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
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Competence & Technology
• The duty of competence requires knowledge of “the benefits and risks associated with relevant technology.”
ABA Model Rule 1.1, cmt. 8.
• The days of ignoring technology are long gone.
Competence & Technology
• State Bar of California’s Formal Opinion 2015-193:• Requires every attorney to assess potential e-discovery
issues at the outset• If counsel lacks the e-discovery skills necessary to
competently handle the matter, counsel must:• Acquire sufficient skill;• Associate with an expert; or• Decline the matter.
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Competence & Technology
• Other states impose varying requirements:• Minnesota Lawyers Prof. Resp. Bd. Opinion No. 22 (Mar.
26, 2010):Lawyer must understand what metadata is, how it is transmitted and accessed, and what actions can be taken to prevent or minimize transmission.
Competence & Technology
• Delegation is allowed, but:
• In-house:• Model Rules 5.1 & 5.3: Duty to supervise
• Outsourced:• Model Rule 1.2: Allocation of authority• Model Rule 1.5: Fee sharing• Model Rule 1.6: Confidentiality
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Chain of Custody
Chain of Custody
• Basic standards of conduct:• A lawyer may not falsify documentary or other evidence.• A lawyer may not alter such material in any way that
impairs its evidentiary value for other parties.• A document, such as an affidavit or declaration, prepared
by a lawyer for verification by another person must include only factual statements that the lawyer reasonably believes the person would make if testifying in person before the factfinder.
Restatement (Third) of the Law Governing Lawyers § 118 & cmt. b.
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Chain of Custody
• Specific Examples:• Back-dating documents• Removing a document to another file• Deleting or adding language or other information• Materially changing the physical appearance of a
document or file
Restatement (Third) of the Law Governing Lawyers § 118 & cmt. b.
Chain of Custody
• Electronically Stored Information (“ESI”)• Model Rule 3.4 also prohibits a lawyer from “alter[ing],
destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.”
• Comment 2 makes clear that this rule “applies to evidentiary material generally, including computerized information.”
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Chain of Custody
• Metadata:• Author• Date created• Date last saved• Date accessed• Last saved by• Last printed
Chain of Custody
• Metadata:• Author• Date created• Date last saved• Date accessed• Last saved by• Last printed
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Confidentiality
Confidentiality
• Model Rule 1.6(a):“A lawyer shall not reveal information relating to therepresentation of a client unless the client givesinformed consent, the disclosure is impliedlyauthorized in order to carry out the representation orthe disclosure is permitted by [certain enumeratedexceptions].”
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Confidentiality
• Deliberate, unauthorized disclosures of confidentialinformation are clear violations of Rule 1.6(a)
• Inadvertent disclosures are also within the scope ofRule 1.6
HACKERS!
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Confidentiality
• Model Rule 1.6(c):“A lawyer shall make reasonable efforts to prevent theinadvertent or unauthorized disclosure of, orunauthorized access to, information relating to therepresentation of a client.”
Confidentiality
Inadvertent & Unauthorized Disclosures:• “The unauthorized access to, or the inadvertent orunauthorized disclosure of, information relating tothe representation of a client does not constitute aviolation of paragraph (c) if the lawyer has madereasonable efforts to prevent the access ordisclosure.”
Model Rule 1.6, cmt. 18.
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Confidentiality
Inadvertent & Unauthorized Disclosures:• “The unauthorized access to, or the inadvertent orunauthorized disclosure of, information relating tothe representation of a client does not constitute aviolation of paragraph (c) if the lawyer has madereasonable efforts to prevent the access ordisclosure.”
Model Rule 1.6, cmt. 18.
Reasonable Efforts to Prevent InadvertentDisclosure
• Factors include, among other things:• the sensitivity of the information• the likelihood of disclosure if additional safeguards arenot employed
• the cost of employing additional safeguards• the difficulty of implementing the safeguards• the extent to which the safeguards adversely affect thelawyer’s ability to represent clients (e.g., by making adevice or important piece of software excessively difficultto use)
Model Rule 1.6, cmt. 18.
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Reasonable Efforts to Prevent InadvertentDisclosure
• Lawyers and law firms are required to possess a significantlevel of technical competence:“[T]hose providing legal services now regularly use a varietyof devices to create, transmit and store confidentialcommunications, including desktop, laptop and notebookcomputers, tablet devices, smartphones, and cloudresource and storage locations. Each device and eachstorage location offer an opportunity for the inadvertent orunauthorized disclosure of information relating to therepresentation, and thus implicate a lawyer’s ethicalduties.”
ABA Formal Opinion 477.
Reasonable Efforts to Prevent InadvertentDisclosure
• The Model Rules Allow for a Flexible Standard:“A client may require the lawyer to implement special securitymeasures not required by this Rule or may give informed consentto forgo security measures that would otherwise be required bythis Rule.”
ABA Model Rule 1.6, cmt. 18.
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Receiving Inadvertently Disclosed Material
• Model Rule 4.4(b):“A lawyer who receives a document or electronically storedinformation relating to the representation of the lawyer'sclient and knows or reasonably should know that thedocument or electronically stored information wasinadvertently sent shall promptly notify the sender.”
Supervision of Others
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Supervision of Others
• Model Rule 5.1(a):“A partner in a law firm, and a lawyer who individuallyor together with other lawyers possesses comparablemanagerial authority in a law firm, shall makereasonable efforts to ensure that the firm has in effectmeasures giving reasonable assurance that all lawyersin the firm conform to the Rules of ProfessionalConduct.”• Model Rule 5.3 includes similar requirements forsupervising non lawyers
Supervision of Others
• Modern e Discovery Requires Sophisticated Training& Skills Development:
“Unlike paper documents kept in storage cabinets,which can be sorted readily by a conscientiousattorney (or paralegal), e discovery requiressophisticated knowledge—both of a party’s specificsystems and operations, and of preservation, search,and retrieval techniques.”
Debra Lyn Bassett, E Pitfalls: Ethics and EDiscovery, 36 N. Ky. L. Rev. 449, 461–62 (2009).
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Spoliation & RelatedIssues
Spoliation
Spoliation refers to the “destruction or materialalteration of evidence or to the failure to preserveproperty for another’s use as evidence in pending orreasonably foreseeable litigation.”
Micron Tech., Inc. v. Rambus Inc.,645 F.3d 1311 (Fed. Cir. 2011).
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Spoliation
• Model Rule 3.4:“A lawyer shall not … unlawfully obstruct another party’saccess to evidence or unlawfully alter, destroy or conceal adocument or other material having potential evidentiaryvalue.”
Spoliation
• ESI Challenges:“Simply turning on a personal computer can destroy ‘slack’ and‘temporary’ files, cause electronically stored information to beoverwritten, or alter metadata (for example, data showing when a filewas created or modified),” and clicking on a file can change its “lastaccessed” date.
1 eDiscovery & Digital Evidence § 11:1; see also The Sedona Conference,Commentary on Ethics & Metadata 9 (2013).
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Spoliation
Social Media
Spoliation
Social Media• Q. Can a lawyer advise a client to removepotentially damaging content from social mediaaccounts?
• A. No consensus, but most ethics opinions seemto suggest that you can, provided the content isotherwise preserved for litigation.
• Note: other civil or criminal rules may apply.
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Concealing Evidence
• A lawyer may not:• “conceal a document or other material having potentialevidentiary value.” ABA Model Rule 3.4.
• “knowingly withhold a document that has been properlyrequested in discovery unless the lawyer does so inprocedurally proper form,” Restatement (Third) of the LawGoverning Lawyers § 118(2), cmt. c.
• “mix responsive and nonresponsive documents together ina way designed to obstruct detection of responsivedocuments.” Restatement (Third) of the Law GoverningLawyers § 118(2), cmt. c.
Concealing Evidence
Metadata• Q. When producing ESI, is a lawyer required to produceany corresponding metadata?
• A. The federal rules do not impose a bright line obligation:“Whether this information should be produced may beamong the topics discussed in the Rule 26(f) conference.”Fed. R. Civ. P. 26 (2006 comm. notes).
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Communicating withCustodians
Client Communications
Model Rule 3.3(a):“A lawyer shall not knowingly … offer evidence that thelawyer knows to be false.”“If a lawyer, the lawyer’s client, or a witness called bythe lawyer, has offered material evidence and thelawyer comes to know of its falsity, the lawyer shalltake reasonable remedial measures, including, ifnecessary, disclosure to the tribunal.”
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Client Communications
Model Rule 3.3(a):• Because of the potential for abuse related to ESI,lawyers dealing with unsophisticated clients mayneed to discuss their obligation of candor at theoutset of the representation.
Non Client CommunicationsRepresented Persons
Model Rule 4.2:“In representing a client, a lawyer shall not communicateabout the subject of the representation with a person thelawyer knows to be represented by another lawyer in thematter, unless the lawyer has the consent of the otherlawyer or is authorized to do so by law or a court order.”
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Non Client CommunicationsRepresented Persons
Sanctions for Violating Rule 4.2 Can IncludeDisqualification or a New Trial:• Rowe v. Vaagen Bros. Lumber, Inc., 996 P.2d 1103 (Wash. App. 2000)(ordering new trial due to defense counsel’s ex parte contact withplaintiff's expert witness).
• Weeks v. Independent Sch. Dist. No. I 89, 230 F.3d 1201 (10th Cir.2000) (upholding disqualification of plaintiff’s attorney due to exparte communications with defendant’s employees).
Non Client CommunicationsUnrepresented Persons
Model Rule 4.3:“In dealing on behalf of a client with a person who is notrepresented by counsel, a lawyer shall not state or imply thatthe lawyer is disinterested.”“When the lawyer knows or reasonably should know that theunrepresented person misunderstands the lawyer’s role in thematter, the lawyer shall make reasonable efforts to correct themisunderstanding.”
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Non Client CommunicationsUnrepresented Persons
Model Rule 4.3, comment 1:“In order to avoid a misunderstanding, a lawyer willtypically need to identify the lawyer’s client and, wherenecessary, explain that the client has interests opposedto those of the unrepresented person.”
Challenging PrivilegeunderFRE 502(d)
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Challenging Privilege—Rule502(d)
Fed. R. Evid. 502(d):“A federal court may order that the privilege orprotection is not waived by disclosure connectedwith the litigation pending before the court — inwhich event the disclosure is also not a waiver in anyother federal or state proceeding.”
“Quick Peek” Challenge under 502(d):• Fairholme Funds, Inc. v. United States, 134 Fed.
Cl. 680, 686–87 (2017) (ordering production ofpotentially privileged documents, with no waiverof privilege, for “quick peek” review by opposingcounsel, as a means of expediting discovery).
• Winfield v. City of New York, 2018 WL 2148435,*7 (S.D.N.Y. May 10, 2018) (rejecting theargument that a court can compel production ofprivileged documents for a “quick peek” review).
Challenging Privilege—Rule 502(d)
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VIII. Ethical Considerations for Handling Evidence in Civil Litigation
Brock J. Specht, Nichols Kaster, PLLP
- - -
The preservation, production, and handling of evidence presents many ethical
considerations, especially in light of today’s complex electronic discovery (“e-discovery”)
processes. As with many other aspects of litigation, attorneys handling evidence must
balance zealous representation of their clients with the promotion of a just, speedy, and
inexpensive resolution as an officer of the court. The failure to adhere to either of these
ethical concerns can result in disqualification, preclusion of evidence, monetary sanctions,
disciplinary proceedings, and other serious consequences.
The Sedona Conference’s “Cooperation Proclamation”—issued more than a decade
ago on July 8, 2008—seeks to balance these potentially competing interests by abrogating
the barrage of discovery requests and motion practice that had proven unsustainable in the
world of high-volume electronically stored information (“ESI”). The proclamation, which
has been endorsed by more than 400 federal and state judges, calls on attorneys to work
together to reach agreement on reasonable approaches to the discovery of ESI, while still
effectively and zealously representing the interests of their clients. The ABA’s Model
Rules of Professional Conduct (“Model Rules”) help strike this balance by requiring
attorneys to adhere to duties of competence, confidentiality, fairness to opposing counsel,
and candor toward the tribunal and others.
Competence should always be at the forefront of an attorney’s ethics checklist.
Model Rule 1.1 requires “the legal knowledge, skill, thoroughness and preparation
reasonably necessary for representation.” The complex technologies involved in managing
e-discovery pose a significant competence hurdle for attorneys both new and experienced.
Indeed, the comments to Model Rule 1.1 remind attorneys that they have a duty to “keep
abreast of changes in the law and its practice, including the benefits and risks associated
with relevant technology.” ABA Model Rule 1.1, cmt. 8.
Additional state-specific authorities tend to demonstrate how the duty of
competence applies to complex e-discovery issues. For example, the State Bar of
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California’s Formal Opinion 2015-1931 explains that the duty of competence requires that
every attorney “assess at the outset of each case what electronic discovery issues might
arise during the litigation, including the likelihood that e-discovery will or should be sought
by either side.” In cases where e-discovery is likely to be present, “the duty of competence
requires an attorney to assess his or her own e-discovery skills” and where such skills are
lacking “the attorney must try to acquire sufficient learning and skill, or associate or consult
with someone with expertise to assist.” Id. The only other “permissible choice” is “to
decline the representation.” Id. Many other jurisdictions have adopted similar technology
specific standards. See, e.g., Minnesota Lawyers Prof. Resp. Bd. Opinion No. 22 (Mar. 26,
2010) (concluding that the duty of competence requires lawyers to understand what
metadata2 is, how it is transmitted and accessed, and actions that can be taken to prevent or
minimize transmission).
In order to provide competent representation, attorneys today must not only
understand the basics of preserving and producing emails and other electronically stored
documents, but must also become familiar with more advanced concepts such as capturing
metadata and using sophisticated document review strategies such as technology-assisted
review or “TAR,” among other things. Thus, while all attorneys are expected to educate
themselves enough to discuss, manage, and determine the strategy relating to the
preservation and discovery of ESI, they may have to familiarize themselves with new
technologies and information on a case-by-case basis as well. For example, a case
involving text messages and social media may raise different technology and legal
concerns than a case involving business emails and instant messages.
In the absence of in-house e-discovery support, attorneys may need to associate
with outside counsel or consulting services in order to competently leverage discovery
technologies. The comments to Model Rule 1.1 allow for this, but require attorneys to
“ordinarily obtain informed consent from the client.” ABA Model Rule 1.1, cmt. 6. Further,
1 Available at https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL% 202015-193%20%5B11-0004%5D%20(06-30-15)%20-%20FINAL.pdf2 The advisory committee’s note to Federal Rule of Civil Procedure 26 defines “metadata” as “[i]nformation describing the history, tracking, or management of an electronic file.”
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while in-house support falls under the firm’s “cone of silence” and fee structure, delegation
to external parties raises additional ethical compliance concerns under Model Rules 1.2
(allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6
(confidentiality), and 5.5(a) (unauthorized practice of law). Counsel must assure
themselves that any arrangement with outside entities is consistent with their duties to their
client and the requirements of these rules.
A. Chain of Custody Considerations
Attorneys engaging in discovery practice must adhere to the ethical “chain of
custody” rules regarding the handling of evidence. These rules prohibit tampering with or
destroying evidence either intentionally or unintentionally; require attorneys to maintain
confidentiality of evidence either on behalf of their client or under a protective order; and
mandate proper supervision of staff, consultants, and junior attorneys to prevent their
violation of such rules. While all of these rules are equally important, technologically
unsophisticated counsel should pay particular attention to their obligation to avoid
unintentionally tampering with electronic evidence as a result of a lack of familiarity with
the technology involved in modern computer systems.
1. Integrity of Evidence
In handling potential evidence, attorneys must be careful to ensure that they neither
intentionally nor unintentionally alter documents and other materials prior to trial. The
Restatement of the Law Governing Lawyers provides that “[a] lawyer may not falsify
documentary or other evidence.” Restatement (Third) of the Law Governing Lawyers §
118(1) (2000). The Restatement specifically discusses chain-of-custody considerations,
recognizing that an attorney “may serve as custodian of evidentiary material, which
ordinarily should reach the proceeding in its original condition.” Restatement (Third) of
the Law Governing Lawyers § 118, cmt. b. Thus, “[a] lawyer may not alter such material
in any way that impairs its evidentiary value for other parties,” except as procedural rules
permit “in the course of reasonable scientific tests by experts.” Id. The Restatement also
cautions against altering documents “with the purpose of misleading another, such as by
back-dating the document, removing the document to another file to create a false
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impression of its provenance, deleting or adding language or other characters to the
document so as to alter its effect, or materially changing its physical appearance.” Id.
While the Restatement discusses the handling of documents and files in terms
dating from the time when these concepts described papers and Redropes—not bits and
bytes—these concepts apply with equal force in the digital age. Consistent with the
Restatement, Model Rule 3.4(a) prohibits an attorney from unlawfully altering, destroying,
or concealing “a document or other material having potential evidentiary value,” and the
comments to the rule specify that this provision “applies to evidentiary material generally,
including computerized information.” ABA Model Rule 3.4, cmt. 2. Therefore, not only
are attorneys clearly prohibited from engaging in intentional tampering, but attorneys and
members of their staff charged with collecting potentially relevant ESI or handling this ESI
during the review and production process must take care to ensure that none of the data—
including the metadata associated with potentially relevant files—is altered in the process.
Failure to do so risks sanctions by the court, and even the unintentional alteration or
destruction of evidence could have significant adverse consequences for you and your
client. For counsel who lack a sophisticated understanding of how to access and handle
sensitive ESI, an e-discovery expert—whether in-house or an external service provider—
can be of great value, and may be ethically required in order to adhere to the duty of
competence.
2. Confidentiality
Attorneys must also maintain the confidentiality of evidence provided by their
client or under a protective order. Model Rule 1.6 generally prohibits an attorney from
revealing information relating to the representation of a client “unless the client gives
informed consent, the disclosure is impliedly authorized in order to carry out the
representation,” or the disclosure is permitted by a specific exception, such as “to comply
with other law or a court order.” ABA Model Rule 1.6(a). Compliance with this rule is not
only crucial to maintaining a client’s confidence in the attorney-client relationship, but is
also important to ensure that the client’s proprietary and other confidential data is protected
from inadvertent disclosure. Attorneys producing and handling evidence during litigation
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have traditionally ensured that confidential information remains confidential via carefully
drafted protective orders and, where warranted under substantive law and allowed under
local practice, the filing of particularly sensitive information under seal.
In the age of online “hacking,” however, attorneys must do more to ensure that their
clients’ confidential information is not publicly disseminated.3 The ABA recently amended
Model Rule 1.6 to include the following language: “A lawyer shall make reasonable efforts
to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to,
information relating to the representation of a client.” ABA Model Rule 1.6(c). The
comments to the new provision emphasize that the issue of whether an attorney has acted
unethically does not depend on whether a disclosure occurred, but instead whether the
attorney took “reasonable efforts” to try to prevent an unauthorized disclosure in the first
instance. ABA Model Rule 1.6, cmt. 18. To this end, a number of factors are listed for
evaluating the reasonableness of the attorney’s efforts, which “include, but are not limited
to, the sensitivity of the information, the likelihood of disclosure if additional safeguards
are not employed, the cost of employing additional safeguards, the difficulty of
implementing the safeguards, and the extent to which the safeguards adversely affect the
lawyer’s ability to represent clients (e.g., by making a device or important piece of software
excessively difficult to use).” Id.
This is a complex and technical area of attorney ethics, as the ABA’s Standing
Committee on Ethics and Professional Responsibility recognized in Formal Opinion 477:
[T]hose providing legal services now regularly use a variety of devices to create, transmit and store confidential communications, including desktop, laptop and notebook computers, tablet devices, smartphones, and cloud resource and storage locations. Each device and each storage location offer an opportunity for the inadvertent or unauthorized disclosure of information relating to the representation, and thus implicate a lawyer’s ethical duties.
3 See, e.g., Ben Kochman, “China-Backed Hackers Targeted US Law Firm: Security Co” Law360 (Feb. 6, 2019), available at https://www.law360.com/consumerprotection/ articles/1126344/china-backed-hackers-targeted-us-law-firm-security-co
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The Opinion4 contains a lengthy analysis of these issues in light of the “reasonable efforts”
standard in Model Rule 1.6(c), and it is worth consulting by any attorney looking to educate
themselves on these issues.
Finally, the comments to Model Rule 1.6 provide for additional flexibility in how
a lawyer handles cybersecurity, stating that a client “may require the lawyer to implement
special security measures not required by this Rule or may give informed consent to forgo
security measures that would otherwise be required by this Rule.” Id. It is not uncommon
for sophisticated corporate clients to mandate specific security measures. And even when
such measures are not specified by the client, it may be prudent for counsel to provide
clients with a written description of their cybersecurity protocols in order to avoid
ambiguity and assure the clients that counsel’s best efforts will be devoted to protecting
sensitive confidential information.
3. Supervision of Staff and Junior Attorneys
Senior attorneys are required to provide adequate supervision to staff and junior
attorneys to ensure firm-wide compliance with the rules governing the handling of
evidence. Model Rule 5.1 requires a supervising attorney to “make reasonable efforts to
ensure that the other lawyer conforms to the Rules,” and makes the supervising attorney
responsible for a junior lawyer’s misconduct under certain circumstances. Model Rule 5.3
applies similar supervisory duties regarding non-lawyer staff and outside consultants.
The comments to Model Rule 5.1 explain that this duty requires a firm to “establish
internal policies and procedures designed to provide reasonable assurance that all lawyers
in the firm will conform to the Rules.” Continuing legal education (“CLE”) programs can
contribute toward the fulfillment of this obligation. The comments also note that a firm’s
obligations will vary depending on the “firm’s structure and the nature of its practice.” Rule
5.1 also requires supervisors to “intervene to prevent avoidable consequences of
misconduct if the supervisor knows that the misconduct occurred.”
4 Available at: https://www.americanbar.org/content/dam/aba/images/abanews/ FormalOpinion477.pdf
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When it comes to ESI, those with managerial authority must make reasonable
efforts to ensure that junior attorneys and staff members understand the firm’s e-discovery
software to minimize the risk of inadvertent alteration or disclosure. “Unlike paper
documents kept in storage cabinets, which can be sorted readily by a conscientious attorney
(or paralegal), e-discovery requires sophisticated knowledge—both of a party’s specific
systems and operations, and of preservation, search, and retrieval techniques.” Debra Lyn
Bassett, E-Pitfalls: Ethics and E-Discovery, 36 N. Ky. L. Rev. 449, 461–62 (2009). Thus,
firms should review former policies from the days of paper document discovery that may
have allowed for minimal supervision of junior attorneys performing document review,
and should consider bringing in an e-discovery expert. But beware of relying solely on e-
discovery experts to ensure compliance: the supervisory requirements of Rule 5.3 apply to
non-lawyers both “employed” and “retained” by a firm.
B. Spoliation, Preservation, and Missing Evidence
Attorneys are duty-bound to preserve relevant evidence for litigation and to produce
relevant documents pursuant to ethical and procedural rules. Model Rule 3.4 not only
prohibits the unlawful obstruction, alteration, destruction or concealment of materials
“having potential evidentiary value,” but also the failure “to make reasonably diligent effort
to comply with a legally proper discovery request by an opposing party” and to “knowingly
disobey an obligation under the rules of a tribunal.” See also Restatement (Third) of the
Law Governing Lawyers § 118(2) (“A lawyer may not destroy or obstruct another party’s
access to documentary or other evidence when doing so would violate a court order or other
legal requirements, or counsel or assist a client to do so.” )
1. Preservation and Spoliation
Parties who fail to preserve potentially relevant evidence may be sanctioned for
“spoliation,” which courts have defined as “the destruction or material alteration of
evidence or to the failure to preserve property for another’s use as evidence in pending or
reasonably foreseeable litigation.” Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1320
(Fed. Cir. 2011). The Restatement explains that record-retention is a nebulous issue that
“[n]o general statement can accurately describe”; rather, attorneys must consult statutes
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and decisions of the particular jurisdiction involved. The legality of an action “may turn on
such factual questions as the state of mind of the client or a lawyer.” Restatement (Third)
of the Law Governing Lawyers § 118(2) cmt. c.
ESI presents particularly complex preservation challenges. “Simply turning on a
personal computer can destroy ‘slack’ and ‘temporary’ files, cause electronically stored
information to be overwritten, or alter metadata (for example, data showing when a file
was created or modified),” and clicking on a file can change its “last accessed” date. 1
eDiscovery & Digital Evidence § 11:1 (citing Gates Rubber Co. v. Bando Chem. Industries,
Ltd., 167 F.R.D. 90 (D. Colo. 1996)); see also The Sedona Conference, Commentary on
Ethics & Metadata 9 (2013). Parties must therefore be particularly careful in placing a
litigation hold on ESI that is potentially relevant to foreseeable litigation, and may need to
consult an e-discovery expert who can help connect the dots between legal requirements
and technological considerations, in order to avoid expensive and time-consuming
spoliation motion practice.
Attorneys counseling on social media compliance must balance the duty to preserve
potential evidence with the duty to zealously represent a client when counseling on the
removal of questionable content from social media or other electronic spaces. While the
New York Lawyers’ Association has determined that lawyers may instruct clients to
remove social media content that carries legal implications, NYCLA Ethics Opinion 745
(July 2, 2013), a Virginia lawyer who advised a plaintiff to clean up his Facebook photos
agreed to a five-year suspension from the practice of law for violating Rules 3.3 (candor
toward the tribunal), 3.4 (fairness to opposing party and counsel), and 8.4 (misconduct),
Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699 (2013). The Philadelphia Bar
Association has taken a middle-ground approach by stating that an attorney is permitted to
instruct a client to delete damaging information from social media sites, “but must take
appropriate action to preserve the information in the event it should prove to be relevant
and discoverable.” Philadelphia Bar Ass’n Prof. Guidance Comm., Op. 2014-5 (July 2014).
In response to frequent intentional and unintentional spoliation of ESI, Federal Rule
of Civil Procedure 37(e) was amended in 2015 to provide for remedial measures to address
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prejudice caused by a breach of the duty to preserve. Unintentional spoliation may be
remediated by measures no greater than necessary to cure the loss, while intentional
spoliation may result in a presumption that the lost information was unfavorable to the
spoliating party, a jury instruction to this effect, or even dismissal.
Rule 37(f) provides a safe harbor for electronic information lost due to the “routine
operation of an electronic information system.” But the advisory committee note to Rule
37 cautions that “a party is not permitted to exploit the routine operation of an information
system to thwart discovery obligations by allowing that operation to continue in order to
destroy specific stored information that it is required to preserve” under applicable law.
C. Missing and Highly Prejudicial Evidence
In addition to prohibiting spoliation, Model Rule 3.4 prohibits the obstruction or
concealment of materials “having potential evidentiary value,” and requires attorneys to be
“reasonably diligent” in complying with proper discovery requests. The Restatement
explains that “a lawyer may not knowingly withhold a document that has been properly
requested in discovery unless the lawyer does so in procedurally proper form,” and may
not “mix responsive and nonresponsive documents together in a way designed to obstruct
detection of responsive documents.” Restatement (Third) of the Law Governing Lawyers
§ 118(2) cmt. c (citing Restatement (Third) of the Law Governing Lawyers § 110, cmt. e).
Thus, lawyers cannot attempt to cloak highly prejudicial evidence through evasive tactics
unless they can properly justify doing so under procedural rules.
The discovery of highly prejudicial evidence can also raise ethical concerns relating
to the disclosure of such evidence. Model Rule 3.6(a) prohibits “[a] lawyer who is
participating or has participated in the investigation or litigation of a matter” from
disclosing highly prejudicial evidence via “an extrajudicial statement that the lawyer knows
or reasonably should know will be disseminated by means of public communication,” with
limited exceptions. The comments to Rule 3.6 discuss the importance of the rule
“particularly where trial by jury is involved,” but notes that “[c]ivil trials may be less
sensitive.” Further, the comments explain that statements otherwise prohibited by the Rule
“may be permissible when they are made in response to statements made publicly by
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another party, another party's lawyer, or third persons,” where such a response is
reasonably required to prevent prejudice to the lawyer’s client.
One issue peculiar to ESI is whether or not metadata should be produced for
corresponding electronic evidence. Scholarly literature has stated that a presumption
against disclosing metadata absent agreement or court order would protect confidentiality;
however, “metadata certainly has the potential for leading to additional relevant evidence,
such as additional editing—and additional editors—of the document,” with the caution that
metadata may yield inaccurate information. Debra Lyn Bassett, E-Pitfalls: Ethics and E-
Discovery, 36 N. Ky. L. Rev. 449, 466–68 (2009). The advisory committee note to Federal
Rule of Civil Procedure 26 resolves the issue on a case-by-case basis by stating that
“[w]hether this information should be produced may be among the topics discussed in the
Rule 26(f) conference.”
D. Communicating with Data Custodians
Discovery procedures also present ethical concerns relating to communicating with
custodians of potentially relevant evidence such as clients, opposing parties, and third
parties.
1. Client Communication
In working with clients to gather evidence supporting their case, attorneys must
adhere to rules governing candor toward the tribunal. Model Rule 3.3 prohibits a lawyer
from knowingly offering false evidence, and requires a lawyer who discovers that material
evidence is false to “take reasonable remedial measures, including if necessary, disclosure
to the tribunal.” A lawyer may refuse to offer evidence he reasonably believes is false under
Rule 3.3. Thus, despite the duty of confidentiality, an attorney has an overriding duty to
either refuse to offer or take remedial steps to address false evidence a client may provide
during discovery.
Although courts have issued differing opinions on whether deposition testimony is
subject to Rule 3.3 before trial, the ABA Committee on Ethics and Professional
Responsibility states that the rule is equally applicable to discovery as trial because
“potential ongoing reliance” on the misrepresentations could influence further proceedings
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including settlement negotiations. See ABA Formal Ethics Op. 93-376. The Committee
suggested that the lawyer’s first step in rectifying a client’s false evidence should be to
urge the client to rectify the situation confidentially. If these efforts fail, the lawyer must
take action to ensure the fraud is not perpetrated on the court and withdraw from the
representation to avoid assisting in the fraud under Model Rules 3.3 and 1.2(d).
2. Opposing Party and Third Party Communication
In communicating with non-client custodians, an attorney must adhere to rules
governing communications with parties represented by counsel as well as unrepresented
parties. Under Model Rule 4.2, a lawyer may not communicate about a case with a party
that the lawyer knows is represented by another lawyer in that matter without the consent
of the other lawyer or authorization by law. The comments to the rule state that it applies
even if the represented party initiates or consents to contact. Rule 4.2 covers not only the
named parties, but any person who has retained counsel in a matter and whose interests are
potentially distinct from those of the client on whose behalf the communicating lawyer is
acting, including potential defendants and witnesses who have hired counsel. ABA Formal
Ethics Op. No. 95-396 (1995). But counsel must be retained for the specific matter at
hand—thus, a general relationship with counsel, including in-house counsel, does not
trigger the rule. See, e.g., Humco, Inc. v. Noble, 31 S.W.3d 916, 919 (Ky. 2000).
A violation of the ex parte communication rules can result in an order for a new
trial or even disqualification of counsel, especially when the violation results in the
disclosure of confidential information or other prejudice. See, e.g., Rowe v. Vaagen Bros.
Lumber, Inc., 996 P.2d 1103 (Wash. App. 2000) (ordering new trial due to defense
counsel’s ex parte contact with plaintiff's expert witness); Weeks v. Independent Sch. Dist.
No. I-89, 230 F.3d 1201 (10th Cir. 2000) (upholding disqualification of plaintiff’s attorney
due to ex parte communications with defendant’s employees).
Further, Model Rule 4.4 requires an attorney to notify the sender if information was
inadvertently sent. The comments to the rule explain that this provision applies to the
receipt of information “that was mistakenly sent or produced by opposing parties or their
lawyers,” such as “when an email or letter is misaddressed” or a document is “accidentally
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included with information that was intentionally transmitted.” The comments explain that
while the attorney must notify the sender and take protective measures, whether the
document must be returned is determined under applicable law such as that relating to
privileges.
In communicating with non-client custodians, attorneys must also be careful not to
let the adversarial nature of litigation lead to harassing or illegal discovery tactics. Model
Rule 4.4 also prohibits attorneys from using means intended to “embarrass, delay, or
burden a third person,” and from obtaining evidence through illegal means. See also
Restatement (Third) of the Law Governing Lawyers § 106. And the Restatement prohibits
the solicitation of evidence that a lawyer reasonably should know a third party “may not
reveal without violating a duty of confidentiality to another imposed by law.” Restatement
(Third) of the Law Governing Lawyers § 102. The comments to the Restatement explain
that this rule may apply when the custodian is an agent, i.e. an employee, of the opposing
party.
Finally, Model Rule 4.3 applies to communications with an unrepresented person.
Attorneys are prohibited from appearing disinterested in the client’s matter. See also
Restatement (Third) of the Law Governing Lawyers § 103. The comments to the rule
explain that, “[i]In order to avoid a misunderstanding, a lawyer will typically need to
identify the lawyer’s client and, where necessary, explain that the client has interests
opposed to those of the unrepresented person.” Thus, attorneys communicating with
custodians not represented by counsel must make clear whom they are representing when
seeking evidence in the matter.
E. Challenging Privileges Under Rule 502(d)
Model Rule 1.6(c) requires attorneys to protect against the inadvertent disclosure
of information related to the representation of a client. Due to the high volume of ESI
produced in litigation today, inadvertent disclosure of privileged documents has become a
significant issue. Federal Rule of Evidence 502 was adopted in 2008 to resolve disputes
among courts regarding when such inadvertent disclosures constitute waivers of privilege.
See Fed. R. Evid. 502 (2008 advisory committee notes). “[W]hile establishing some
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exceptions to waiver, the rule does not purport to supplant applicable waiver doctrine
generally.” Id.
Rule 502(d) allows federal courts to “order that the privilege or protection is not
waived by disclosure connected with the litigation pending before the court—in which
event the disclosure is also not a waiver in any other federal or state proceeding.” In other
words, even in the absence of a stipulated protective order, courts may protect inadvertent
disclosures from waiving attorney-client privilege in the matter at hand as well as in other
proceedings involving different parties. Such an order may specify that privilege is not
waived even when producing parties fail to take reasonable care to prevent disclosure of
privileged documents. See, e.g., Brookfield Asset Mgmt., Inc. v. AIG Fin. Prod. Corp., No.
09 CIV. 8285 PGG FM, 2013 WL 142503, at *1 (S.D.N.Y. Jan. 7, 2013) (stating that
whether or not the defendant “dropped the ball” in its privilege review, the parties were
bound by the 502(d) order stating that there can be no waiver of privilege).
However, while Rule 502(d) is typically thought of as a “shield” protecting litigants
from a waiver of privilege, at least one court has also allowed it to be used as a “sword” to
force litigants to disclose to their opponents potentially privileged documents under a
“quick peek” procedure. For example, in Fairholme Funds, Inc. v. United States, 134 Fed.
Cl. 680, 686–87 (2017), the Court of Federal Claims ordered the disclosure of 1500
documents that the United States claimed were subject to a privilege. The court did so as a
means of expediting discovery in the matter, while making explicit that the disclosure did
not operate as a waiver of privilege, as provided under Rule 502(d). The terms of this
“quick peek” disclosure were as follows:
Specifically, the court orders defendant to provide plaintiffs with access to, at a location of defendant's choosing, the approximately 1500 documents plaintiffs seek to review. Upon reviewing the documents, plaintiff shall identify those documents it seeks to be produced. Defendant will then be given one last opportunity to review the documents identified by plaintiffs. If defendant still maintains that the documents are privileged, defendant shall so indicate. If, however, defendant no longer seeks to assert either the deliberative process or bank examination privilege over the documents, it shall produce the documents to plaintiffs. As to those documents over which defendant continues to assert a privilege, plaintiffs may file a motion to compel their production if they believe that those documents are not
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privileged. Defendant will then provide the documents to the court for an in camera review.
Id. It should be noted that this holding has not been universally adopted, with at least one
other court expressing sharp criticism of Fairholme’s reasoning. See Winfield v. City of
New York, 2018 WL 2148435, *7 (S.D.N.Y. May 10, 2018) (“this Court does not agree
with Fairholme’s reasoning or reliance on Federal Rule of Evidence 502(d) as the basis for
its order”).
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