E-mails in Court: Houston, We (May) Have a Problem
I nearly put the "gwb43.com" headline on this but decided it's too early. This is a "cloud on the horizon the size of a man's hand" sort of story. I don't know the source but something called "law.com" has a certain impressiveness about it. At least somebody was smart enough to grab a good URL early on.
Now to the problem: this piece claims, in essence, that those "RNChq.com" mails, even if we (sounds of grinding teeth aimed in Rep. Henry Waxman's direction) ever get the subpoena issued to Smartech.com and Coptix.com, may not be usable in court.
This is a very readable piece which nonetheless cites actual cases. Could any legal scholars kindly leave comments as to whether this is an attempt to blow smoke up our asses or a straightforward piece of evolving technolegalism? Details follow:
The fact is that most of us are easily seduced by the computer age into believing that electronic evidence is reliable, trustworthy and easily admissible. But electronic evidence brings unique baggage to the admissibility equation that we need to think through very carefully. In May, Maryland Chief Magistrate Judge Paul Grimm did the heavy thinking and gave us the gift of an extensive, thorough tutorial on the admissibility of electronic evidence in Lorraine v. Markle American Insurance Co., 2007 U.S. Dist. Lexis 33020 (D. Md. 2007). If you read only one case this year, make it Lorraine.
Details on the Lorraine case follow. But just to note another point:
Let's talk about e-mails. By now, we all know how important e-mail is; we all know that we must ask for it in discovery and review it carefully. When your opponent produces juicy e-mails, they are admissions and easily admissible, right? Not so fast.
For an e-mail to be admissible, you will need to show, among other things, that it is authentic and it is not hearsay. E-mail chains present particular problems, because they are often a combination of party admissions, business records, nonparty hearsay and self-serving statements. So even if the admissibility of part of an e-mail chain is clear, you may need to look at each and every link. See, e.g., Rambus Inc. v. Infineon Technologies A.G., 348 F. Supp. 2d 698 (E.D. Va. 2004). And because electronic evidence is so easy to manipulate, the standards for authentication are often heightened.
Okay, the story uses raccoons--not to mention Bugs Bunny and Yosemite Sam--to illustrate legal points. But when we're dealing with people like Judge Kent this may not be at all unreasonable:
In St. Clair v. Johnny's Oyster & Shrimp Inc., 706 F. Supp. 2d 773 (S.D. Texas 1999), the issue was who owned the ship on which the plaintiff was injured; he sought to prove that by offering information taken from the U.S. Coast Guard Vessel Database Web site. We're talking Coast Guard official Web site here; pretty good evidence, huh?
No, not even close. Finding the electronic evidence totally insufficient, U.S. District Judge Samuel Kent for the Southern District of Texas observed that anything found on the Internet is "voodoo information" and "inherently untrustworthy" because "hackers can adulterate the content on any Web site from any location at any time."
Okay, that was 1999 and Al Gore had only invented the Internet a few short years earlier. Surely Kent must have become more comfortable with Internet evidence by 2007, right? Um, not so much.
A few months ago, in Diamond Offshore Servs. Co. v. Gulfmark Offshore Inc., 2007 U.S. Dist. Lexis 5483 (S.D. Texas 2007), Kent acknowledged that companies are increasingly utilizing the Internet, but he reiterated that he still finds Internet evidence inherently untrustworthy.
Rep. Waxman, I grind again in your direction. Get those Chattanooga emails subpoenaed now. And have the seizure done by somebody who knows both computers and the law so that this stuff will be diamond-hard admissible even if the case ends up in Judge Kent's court. His first name isn't Clark after all.