Lorraine v. Markel American InsuranceLorraine v. Markel American Insurance
MEMORANDUM OPINION
Plaintiffs/Counter-Defendants Jack Lorraine and Beverly Mack bring this action to enforce a private arbitrator’s award finding that certain damage to their yacht, Chessie, was caused by a lightning strike that occurred on May 17, 2004, while Chessie was anchored in the Chesapeake Bay.
BACKGROUND
It is difficult for the Court to provide the appropriate background to the underlying
The scope of the arbitration agreement is the basis of this litigation. The final agreement states, in relevant part,
“The parties to this dispute ... have agreed that an arbitrator shall determine whether certain bottom damage in the amount of $36,000, to the Yacht CHESSIE was caused by the lightning strike occurring on May 17, 2004, or osmosis, as claimed by [Markel].”
Pl.’s Mot. Ex. A, Def.’s Mot. Ex. C. The agreement also contemplated that the arbitrator would issue an “award” within 30 days of the final submission of evidence. Id. The arbitrator issued his award on June 12, 2006. In it, he held that some, but not all, of Chessie’s hull damage was caused by lightning. Specifically, the arbitrator stated,
“I find that there is a basis for an argument regarding loss related damage. Evidence shows that the lightning strike on Mary 17, 2004 was discharged through the hull below the water line----The corruption of the surface laminate of the bottom is basis for a loss related award---The award amount must be kept in proportion to the loss related damage only. I find that the repairs relating to that damage should be based on a cost of $300.00 per foot ($14,000.00). Other expenses relating to charges for hauling, mast unstepping/re-stepping, blocking, storage, moving, launching or environmental fees should be added to that amount.”
Def.’s Mot. Ex. D. This award forms the basis for the present litigation, in which both parties ostensibly seek to confirm and enforce the arbitrator’s decision.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when there exists no genuine issue as to any material fact and a decision may be rendered as a matter of law.
If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to the nonmoving party to identify specific facts showing that there is a genuine issue for trial. The existence of only a “scintilla of evidence” is not enough to defeat a motion for summary judgment. Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party oppоsing summary judgment. Anderson,
Moreover, to be entitled to consideration on summary judgment, the evidence supporting the facts set forth by the parties must be such as would be admissible in evidence. See
“[ujnsworn, unauthentieated documents cannot be considered on a motion for summary judgment. To be admissible at the summary judgment stage, documents must be authenticated by and attached to an affidavit that meets the requirements ofRule 56(e) -that the documents be admissible in evidence.”
Mishin v. Baxter Healthcare Corp. et al.,
THE FEDERAL ARBITRATION ACT
As a preliminary matter, Plaintiffs have styled their complaint as one to enforce the arbitrator’s award under § 9 of the Federal Arbitration Act,
“the Arbitrator’s sole function was to determine whether the hull damage, in the agreed-upon amount of $36,000, was caused by the lightning strike occurring on May 17, 2004. The Arbitration Agreement did not grant the Arbitrator the authority to assess a damage amount.”
Id. (emphasis added). This argument is consistent with a motion to modify under § 10(b)(4), which permits a federal court to modify or vacate an arbitration award upon a showing that “the arbitrator[ ] exceeded their powers.” Accordingly, the Court will evaluate Plaintiffs’ motion under § 10 of the FAA.
In contrast, Markel’s complaint truly is one to enforce the arbitrator’s award. Markel denies that it entered into an “all or nothing” arbitration agreement with regard to damages, and seeks to enforce the arbitrator’s award of $14,100. Def.’s Mot. at 5.
The question before the Court, therefore, is whether the arbitrator exceeded his authority under the arbitration agreement by assigning a value to the damages attributable to the lightning strike that was less than the $36,000 claimed by Plaintiffs. If the answer is yes, then the court can vacate, remand, or modify the award.
To resolve whether the arbitrator exceeded his authority, the Court first must determine the scope of the arbitration agreement; specifically, whether the parties agreed to arbitrate the amount of damages caused by the lightning strike. Because the parties did not agree to submit questions of arbitrability to the arbitrator for resolution, determining the scope of the agreement is an issue for the Court to decide. First Options of Chicago, Inc. v. Kaplan,
Here, I find that the language of the arbitration agreement is ambiguous; it could be read either to permit the arbitrator to determine the amount of damage to Chessie, or to limit his authority to determining only whether the claimed damages were caused by the lightning strike. Under normal circumstances, the Court would look to the documentary evidence provided by the parties, which in this case includes the arbitration agreement, award, and copies of e-mail correspondence between counsel, ostensibly supplied as extrinsic evidence of the parties’ intent with regard to the scope of the arbitration agreement. In this case, however, the admissibility problems with the evidence presented are manifest. First, none of the documentary evidence presented is authenticated by affidavit or otherwise. Next, most of the facts relevant to the contract negotiations at issue have been provided by counsel ipse dixit, without supporting affidavits or deposition testimony. The evidentiary problems associated with the copies of e-mail offered as parol evidence likewise are substantial because they were not authenticated, but instead were simply attached to the parties’ motions as exhibits.
Because neither party to this dispute complied with the requirements of
ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION
Be careful what you ask for, the saying goes, because you might actually get it. For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information (“ESI”). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would
Whether ESI is admissible into evidence is determined by a collection of evidence rules
The relationship between Rule 104(a) and (b) can complicate the process by which ESI is admitted into evidence at trial, or may be considered at summary judgment. The rule states, in relevant part:
“(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b)____In making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”
When the judge makes a preliminary determination regarding the admissibility of evidence under
The following types of preliminary matters typically are determined by the judge under
The interplay between
“Although the district court is charged with making this preliminary determination, because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims. Because the ultimate resolution of authenticity is a question for the jury, in rendering its preliminary decision on whether the proponent of evidence has laid a sufficient foundation for admission the district court must necessarily assess the adequacy of the showing made before the jury.14 ”
With respect to this two step process, the Fourth Circuit went on to state:
“[a]n in camera hearing addressing authenticity does not replace the presentation of authenticating evidence bеfore the jury; the district court must revisit this issue at trial. Thus, even though the district court may have ruled during an in camera proceeding that the proponent had presented sufficient evidence to support a finding that [the evidence] was authentic, evidence that would support the same ruling must be presented again, to the jury, before the [evidence] may be admitted.15 ”
In short, there is a significant difference between the way that
Relevance (Rules 401, 402, and 105)
The first evidentiary hurdle to overcome in establishing the admissibility of ESI is to demonstrate that it is relevant, as defined by
“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Clearly, facts that tend to prove essential elements of the causes of action and affirmative defenses asserted in the pleadings are “of consequence to the litigation,” as are facts that tend to undermine or rehabilitate the credibility of the witnesses who will testify. Saltzburg at § 401.02[8]. So too, however, are background facts that, although they may not prove elements of the claims and defenses, and may not even be disputed, nonetheless routinely are admitted to help the fact finder understand the issues in the case and the evidence introduced to prove or disprove them.
In assessing whether evidence is relevant under
The Federal Rules of Evidence are clear: evidence that is not relevant is never admissible.
Establishing that ESI has some relevance generally is not hard for counsel. Articulating all of what may be multiple grounds of relevance is something that is important, though not as frequently done as it should be. Accordingly, evidence that might otherwise be admitted may be excluded because the proponent put all his or her eggs in a single evidentiary basket, which the trial judge views as inapplicable, instead of carefully identifying each potential basis for admissibility. That was not the problem in this case, however, because the e-mail and other documentary evidence attached as exhibits to the summary judgment motions are relevant to determining the scope of the arbitration agreement between the parties, and therefore this evidence meets the requirements of
Authenticity (Rules 901-902)
In order for ESI to be admissible, it also must be shown to be authentic. Rule 901(a) defines what this entails: “[t]he requirement
A party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be. Id. at § 901.02[3]. This is not a particularly high barrier to overcome. For example, in United States v. Safavian, the court analyzed the admissibility of e-mail, noting,
“[t]he question for the court underRule 901 is whether the proponent of the evidence has ‘offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is.... ’ The Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.”
Ironically, however, counsel often fail to meet even this minimal showing when attempting to introduce ESI, which underscores the need to pay careful attention to this requirement. Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation. See, e.g., In re Vee Vinhnee,
Although courts have recognized that authentication of ESI may require greater scrutiny than that required for the authenti
“Essentially, appellant would have us create a whole new body of law just to deal with e-mails or instant messages. The argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty. Unless the purported author is actually witnessed sending the e-mail, there is always the possibility it is not from whom it claims. As appellant correctly points out, anybody with the right password can gain access to another’s e-mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationary can be copied or stolen. We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of PaR.E. 901 and Pennsylvania case law ... We see no justification for constructing unique rules of admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-ease basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.”
“In general, electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues. If a computer processes data rather than merely storing it, authentication issues may arise. The need for authentication and an explanation of the computer’s processing will depend on the complexity and novelty of the computer processing. There are many states in the development of computer data where error can be introduced, which can adversely affect the accuracy and reliability of the output. Inaccurate results occur most often because of bad or incomplete data inputting, but can also happen when defective software programs are used or stored-data media become corrupted or damaged.
*544 The authentication requirements ofRule 901 are designed to set up a threshold preliminary standard to test the reliability of evidence, subject to later review by an opponent’s cross-examination. Factors that should be considered in evaluating the reliability of computer-based evidence include the error rate in data inputting, and the security of the systems. The degree of foundation required to authenticate computer-based evidence depends on the quality and completeness of the data input, the complexity of the computer processing, the routineness of the computer operation, and the ability to test and verify results of the computer processing.
Determining what degree of foundation is appropriate in any given case is in the judgment of the court. The required foundation will vary not only with the particular circumstances but also with the individual judge.”
Weinstein at § 900.06[3]. Obviously, there is no “one size fits all” approach that can be taken when authenticating electronic evidence, in part because technology changes so rapidly that it is often new to many judges.
Although
“(b) Illustrations.
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. . Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.”
The ten methods identified by
Although the methods of authentication listed in
This rule permits authentication by: “[testimony that a matter is what it is claimed to be.” This rule “contemplates a broad spectrum” including “testimony of a witness who was present at the signing of a document____”
This rule allows authentication or identification by “Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.” Interestingly, the rule allows either expert opinion testimony to authenticate a questioned document by comparing it to one known to be authentic, or by permitting the factfinder to do so. Obviously, the specimen used for the comparison with the document to be authenticated must be shown itself to be authentic. Weinstein at § 901.03[7][b]. This may be accomplished by any means allowable by
This rule is one of the most frequently used to authenticate e-mail and other electronic records. It permits exhibits to be authenticated or identified by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” The commentary to
One method of authenticating electronic evidence under
“A unique numerical identifier that can be assigned to a file, a group of files, or a portion of a file, based on a standard mathematical algorithm applied to the characteristics of the data set. The most commonly used algorithms, known as MD5 and SHA, will generate numerical values so distinctive that the chance that any two data sets will have the same hash value, no matter how similar they appear, is less than one in one billion. ‘Hashing’ is used to guarantee the authenticity of an original data set and can be used as a digital*547 equivalent of the Bates stamp used in paper document production.23 ”
Hash values can be inserted into original electronic documents when they are created to provide them with distinctive characteristics that will permit their authentication under
Another way in which electronic evidence may be authenticated under
“commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’ Appendix F to The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age defines metadata as ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Technical Appendix E to the Sedona Guidelines provides an extended description of metadata. It further defines metadata to include ‘all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records.’ Some examples of metadata for electronic documents include: a file’s
name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it). Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.”
Williams v. Sprint/United Mgmt. Co., 230 F.R.D. at 646 (footnote omitted); Federal Judicial Center, Managing Discovery of Electronic Information: A Pocket Guide for Judges, Federal Judicial Center, 2007 at 24-25 (defining metadata as “[ijnformation about a particular data set or document which describes how, when, and by whom the data set or document was collected, created, accessed, or modified ... ”). Recently revised
“[a]n unauthorized person may be able to obtain access to an unattended computer. Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide for a selected network administrators to override an individual password identification number to gain access when necessary.”
Weinstein at § 900.01[4][a]; see also Fennell v. First Step Designs, Ltd.,
This Rule permits authentication by:
“Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.”
The commentary to
Courts have recognized the appropriateness of authenticating computer stored public records under
This Rule recognizes one method of authentication that is particularly useful in authenticating electronic evidence stored in or generated by computers. It authorizes authentication by “[ejvidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”
In addition to the non-exclusive methods of authentication identified in
“Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the*550 genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and periodiсals. Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.
(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record:
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
*551 (B) was kept in the course of the regularly-conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.”
The obvious advantage of Rule 902 is that it does not require the sponsoring testimony of any witness to authenticate the exhibit—its admissibility is determined simply by examining the evidence itself, along with any accompanying written declaration or certificate required by Rule 902. The mere fact that the rule permits self-authentication, however, does not foreclose the opposing party from challenging the authenticity. Because
Although all of the examples contained in
“(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.”
The rule “[dispenses] with preliminary proof of the genuineness of purportedly official publications ____ [but] does not confer admissibility upon all official publications; it merely provides a means whereby them authenticity may be taken as established for purposes of admissibility.”
In Equal Employment Opportunity Commission v. E.I. DuPont de Nemours and Co., the court admitted into evidence printouts of postings on the website of the United States Census Bureau as self-authenticating under
“(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.”
This rule was added in the 2000 amendments to the Federal Rules of Evidence, and it was intended to “[set] forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness.”
Finally, as noted at the beginning of this discussion regarding the authenticating electronic records,
In Telewizja Polska USA, the court embraced a non-traditional method of authentication when faced with determining whether exhibits depicting the content of the defendant’s website at various dates several years in the past were admissible.
“Federal Rule of Evidence 901 ‘requires only a prima facie showing of genuineness and leaves it to the jury to decide the true authenticity and probative value of the evidence.’ Admittedly, the Internet Archive does not fit neatly into any of the non-exhaustive examples listed inRule 901 ; the Internet Archive is a relatively new source for archiving websites. Nevertheless, Plaintiff has presented no evidence that the Internet Archive is unreliable or biased. And Plaintiff has neither denied that the exhibit represents the contents of its website on the dates in question, nor come forward with its own evidence challenging the veracity of the exhibit. Under these circumstances, the Court is of the opinion that [the affidavit from the representative of the Internet Archive Company] is sufficient to satisfyRule 901 ’s threshold requirement for admissibility.” Id. at *6.
Additionally, authentication may be accomplished by the court taking judicial notice under Rule 201 of certain foundational facts needed to authenticate an electronic record. Under this rule, the parties may request the court to take judicial notice of adjudicative facts that are either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Authentication also can be accоmplished in civil cases by taking advantage of
The above discussion underscores the need for counsel to be creative in identifying methods of authenticating electronic evidence when the facts support a conclusion that the evidence is reliable, accurate, and authentic, regardless of whether there is a particular example in
Finally, any serious consideration of the requirement to authenticate electronic evidence needs to acknowledge that, given the
There is no form of ESI more ubiquitous than e-mail, and it is the category of ESI at issue in this case. Although courts today have more or less resigned themselves to the fact that “[w]e live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world,” Safavian,
Not surprisingly, there are many ways in which e-mail evidence may be authenticated. One well respected commentator has observed:
“[E]-mail messages may be authenticated by direct or circumstantial evidence. An e-mail message’s distinctive characteristics, including its ‘contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances’ may be sufficient for authentication.
Printouts of e-mail messages ordinarily bear the sender’s e-mail address, providing circumstantial evidence that the message was transmitted by the person identified in the e-mail address. In responding to an email message, the person receiving the message may transmit the reply using the computer’s reply function, which automatically routes the message to the address from which the original message came. Use of the reply function indicates that the reply message was sent to the sender’s listed e-mail address.
The contents of the e-mail may help show authentication by revealing details known only to the sender and the person receiving the message.
E-mails may even be self-authenticating. UnderRule 902(7) , labels or tags affixed in the course of business require no authentication. Business e-mails often contain information showing the origin of the transmission and identifying the employer-company. The identification marker alone may be sufficient to authenticate an e-mail underRule 902(7) . However, the sending address in an e-mail message is not conclusive, since e-mail messages can be sent by persons other than the named sender. For example, a person with unauthorized access to a computer can transmit e-mail messages under the computer owner’s name. Because of the potential for unauthorized transmission of e-mail messages, authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness.”
Weinstein at § 900.07[3][e]; see also Edward J. Imwinkelried, Evidentiary Foundations § 4.03[4][b] (LexisNexis 6th ed.2005)(hereinafter “Imwinkelried, Evidentiary Foundations.”) Courts also have approved the authentication of e-mail by the above described methods. See, e.g., Siddiqui,
The most frequent ways to authenticate email evidence are 901(b)(1) (person with personal knowledge), 901(b)(3) (expert testimony or comparison with authenticated exemplar), 901(b)(4) (distinctive characteristics, including circumstantial evidence), 902(7) (trade inscriptions), and 902(11) (certified copies of business record).
Internet Website Postings Courts often have been faced with determining the admissibility of exhibits containing representations of the contents of website postings of a party at some point relevant to the litigation. Their reaction has ranged from the famous skepticism expressed in St. Clair v. Johnny’s Oyster and Shrimp, Inc.
The issues that have concerned courts include the possibility that third persons other than the sponsor of the website were responsible for the content of the postings, leading many to require proof by the proponent that the organization hosting the website actually posted the statements or authorized their posting. See United States v. Jackson,
“The length of time the data was posted on the site; whether others report having seen it; whether it remains on the website for the court to verify; whether the data is of a type ordinarily posted on that website or websites of similar entities (e.g. financial information from corporations); whether the owner of the site has elsewhere published the same data, in whole or in part; whether others have published the same data, in whole or in part; whether the data*556 has been republished by others who identify the source of the data as the website in question?33 ”
Counsel attempting to authenticate exhibits containing information from internet websites need to address these concerns in deciding what method of authentication to use, and the facts to include in the foundation. The authentication rules most likely to apply, singly or in combination, are 901(b)(1) (witness with personal knowledge) 901(b)(3) (expert testimony) 901(b)(4) (distinctive characteristics), 901(b)(7) (public records), 901(b)(9) (system or process capable of producing a reliable result), and 902(5) (official publications).
Text Messages and Chat Room Content
Many of the same foundational issues found encountered when authenticating website evidence apply with equal force to text messages and internet chat room content; however, the fact that chat room messages are posted by third parties, often using “screen names” means that it cannot be assumed that the content found in chat rooms was posted with the knowledge or authority of the website host. Saltzburg at § 901.02[12]. One commentator has suggested that the following foundational requirements must be met to authenticate chat room evidence:
“(1) [e]vidence that the individual used the screen name in question when participating in chat roоm conversations (either generally or at the site in question);
(2) [ejvidence that, when a meeting with the person using the screen name was arranged, the individual ... showed up;
(3) [ejvidence that the person using the screen name identified [himself] as the [person in the chat room conversation]; evidence that the individual had in [his] possession information given to the person using the screen name; (5) [and][ejvidence from the hard drive of the individual’s computer [showing use of the same screen name].”
Id. at § 901.02[12], Courts also have recognized that exhibits of chat room conversations may be authenticated circumstantially. For example, in In re F.P., the defendant argued that the testimony of the internet service provider was required, or that of a forensic expert.
Computer Stored Records and Data
Given the widespread use of computers, there is an almost limitless variety of records that are stored in or generated by computers. As one commentator has observed “[m]any kinds of computer records and computer-generated information are introduced as real evidence or used as litigation aids at trials. They range from computer printouts
Two cases illustrate the contrast between the more lenient approach to admissibility of computer records and the more demanding one. In United States v. Meienberg, the defendant challenged on appeal the admission into evidence of printouts of computerized records of the Colorado Bureau of Investigation, arguing that they had not been authenticated because the government had failed to introduce any evidence to demonstrate the accuracy of the records.
“Any question as to the accuracy of the printouts, whether resulting from incorrect data entry or the operation of the computer program, as with inaccuracies in any other type of business records, would have affected only the weight of the printouts, not their admissibility.”
Id. at 1181 (citation omitted). See also Kassimu,
In contrast, in the case of In re Vee Vinhnee, the bankruptcy appellate panel upheld the trial ruling of a bankruptcy judge excluding electronic business records of the credit card issuer of a Chapter 7 debtor, for failing to authenticate them.
“The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the*558 files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created---- Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.”
Id. at 444. The court reasoned that, for paperless electronic records:
“The logical questions extend beyond the identification of the particular computer equipment and programs used. The entity’s policies and procedures for the use of the equipment, database, and programs are important. How access to the pertinent database is controlled and, separately, how access to the specific program is controlled are important questions. How changes in the database are logged or recorded, as well as the structure and implementation of backup systems and audit procedures for assuring the continuing integrity of the database, are pertinent to the question of whether records have been changed since their creation.”
Id. at 445. In order to meet the heightened demands for authenticating electronic business records, the court adopted, with some modification, an eleven-step foundation proposed by Professor Edward Imwinkelried:
Professor Imwinkelried perceives electronic records as a form of scientific evidence and discerns an eleven-step foundation for computer records:
“1. The business uses a computer.
2. The computer is reliable.
3. The business has developed a procedure for inserting data into the computer.
4. The procedure has built-in safeguards to ensure accuracy and identify errors.
5. The business keeps the computer in a good state of repair.
6. The witness had the computer readout certain data.
7. The witness used the proper procedures to obtain the readout.
8. The computer was in working order at the time the witness obtained the readout.
9. The witness recognizes the exhibit as the readout.
10. The witness explains how he or she recognizes the readout.
11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.”
Id. at 446-47 (citation omitted). Although the position taken by the court in In re Vee Vinhnee appears to be the most demanding requirement for authenticating computer stored records, other courts also have recognized a need to demonstrate the accuracy of these records. See, e.g., State v. Dunn,
As the foregoing cases illustrate, there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed. Further, it would not be surprising to find that, to date, more courts have tended towards the lenient rather than the demanding approach. However, it also is plain that commentators and courts increasingly recognize the special characteristics of electronically stored records, and there appears to be a growing awareness, as expressed in the Manual for Complex Litigation,
The methods of authentication most likely to be appropriate for computerized records are 901(b)(1) (witness with personal knowledge), 901(b)(3) (expert testimony), 901(b)(4) (distinctive characteristics), and 901(b)(9) (system or process capable of producing a reliable result).
Computer Animation and Computer Simulations.
Two similar, although distinct, forms of computer generated evidence also raise unique authentication issues. The first is computer animation, “the display of a sequence of computer-generated images.” Im-WINKELRIED, EVIDENTIARY FOUNDATIONS at § 4.09[4][a], The attraction of this form of evidence is irresistible, because:
“when there is no movie or video of the event being litigated, a computer animation is a superior method of communicating the relevant information to the trier of fact. Absent a movie or video, the proponent might have to rely on static charts or oral testimony to convey a large amount of complex information to the trier of fact. When the proponent relies solely on oral expert testimony, the details may be presented one at a time; but an animation can piece all the details together for the jury. A computer animation in effect condenses the information into a single evidentiary package. In part due to television, the typical American is a primarily visual learner; and for that reason, in the short term, many jurors find the animation more understandable than charts or oral testimony. Use of an animation can also significantly increase long-term juror retention of the information.”
Id at § 4.09[4][a]. The second form of computer generated evidence is a computer simulation. The distinction between them has been explained usefully as follows:
“Computer generated evidence is an increasingly common form of demonstrative evidence. If the purpose of the computer evidence is to illustrate and explain a witness’s testimony, courts usually refer to the evidence as an animation. In contrast, a simulation is based on scientific or physical principles and data entered into a computer, which is programmed to analyze the data and draw a conclusion from it, and courts generally require proof to show the validity of the science before the simulation evidence is admitted.”
Thus, the classification of a computer-generated exhibit as a simulation or an animation also affects the evidentiary foundation required for its admission.
State v. Sayles,
Courts generally have allowed the admission of computer animations if authenticated by testimony of a witness with personal knowledge of the content of the animation, upon a showing that it fairly and adequately portrays the facts and that it will help to illustrate the testimony given in the case. This usually is the sponsoring witness. Id at 10 (state’s expert witness had knowledge of content of shaken infant syndrome animation and could testify that it correctly and adequately portrayed the facts that would illustrate her testimony); Hinkle v. City of Clarksburg,
Computer simulations are treated as a form of scientific evidence, offered for a substantive, rather than demonstrative purpose. Weinstein at § 900,03[1] (p. 900-21); IMWINKELRIED, EVIDENTIARY FOUNDATIONS at § 4.09[4][a],[c]. The case most often cited with regard to the foundational requirements needed to authenticate a computer simulation is Commercial Union v. Boston Edison, where the court stated:
“The function of computer programs like TRACE ‘is to perform rapidly and accurately an extensive series of computations not readily accomplished without use of a computer.’ We permit experts to base their testimony on calculations performed by hand. There is no reason to prevent them from performing the same calculations, with far greater rapidity and accuracy, on a computer. Therefore ... we treat computer-generated models or simulations like other scientific tests, and condition admissibility on a sufficient showing that: (1) the computer is functioning properly; (2) the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party, so that they may challenge them); and (3) the program is generally accepted by the appropriate community of scientists.”
Digital Photographs
Photographs have been authenticated for decades under
“[Sjuppose that in a civil case, a shadow on a 35 mm photograph obscures the name of the manufacturer of an offending product. The plaintiff might offer an enhanced image, magically stripping the shadow to reveal the defendant’s name. Or suppose that a critical issue is the visibility of a highway hazard. A civil defendant might offer an enhanced image of the stretch of highway to persuade the jury that the plaintiff should have perceived the danger ahead before reaching it. In many criminal trials, the prosecutor offers an ‘improved’, digitally enhanced image of fingerprints discovered at the crime scene. The digital image reveals incriminating points of similarity that the jury otherwise would never would have seen.”
Id. at 49. There are three distinct types of digital photographs that should be considered with respect to authentication analysis: original digital images, digitally converted images, and digitally enhanced images. Id.
An original digital photograph may be authenticated the same way as a film photo, by a witness with personal knowledge of the scene depicted who can testify that the photo fairly and accurately depicts it. Id. If a question is raised about the reliability of digital photography in general, the court likely could take judicial notice of it under
For digitally enhanced images, it is unlikely that there will be a witness who can testify how the original scene looked if, for example, a shadow was removed, or the colors were intensified. In such a case, there will need to be proof, permissible under
Because the process of computer enhancement involves a scientific or technical process, one commentator has suggested the following foundation as a means to authenticate digitally enhanced photographs under
To prepare properly to address authentication issues associated with electronically generated or stored evidence, a lawyer must identify each category of electronic evidence to be introduced. Then, he or she should determine what courts have required to authenticate this type of evidence, and carefully evaluate the methods of authentication identified in
In this case, neither plaintiffs nor defendants provided any authenticating facts for the e-mail and other evidence that they proffered in support of their summary judgment memoranda—they simply attached the exhibits. This complete absence of authentication stripped the exhibits of any evidentiary value because the Court could not consider them as evidentiary facts. This, in turn, required the dismissal, without prejudice, of the cross motions for summary judgment, with leave to resubmit them once the evidentiary deficiencies had been cured.
Hearsay (Rules 801-807)
The fourth “hurdle” that must be overcome when introducing electronic evidence is the potential application of the hearsay rule. Hearsay issues are pervasive when electronically stored and generated evidence is introduced. To properly analyze hearsay issues there are five separate questions that must be answered: (1) does the evidence constitute а statement, as defined by Rule 801(a); (2) was the statement made by a “declarant,” as defined by Rule 801(b); (3) is the statement being offered to prove the truth of its contents, as provided by Rule 801(c);
The requirements of a “Statement,” Rule 801(a), made by a “Person”, Rule 801(b)
Rule 801(a) states:
“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.”
The key to understanding the hearsay rule is to appreciate that it only applies to intentionally assertive verbal or non-verbal conduct, and its goal is to guard against the risks associated with testimonial evidence: perception, memory, sincerity and narration.
The use of the word “statement” in
“The definition of ‘statement’ assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.”
Ironically, the word “assertion” is not defined in the hearsay rule, despite its importance to the concept. An assertion usefully may be defined as “to state as true; declare; maintain.” Black’s Law Dictionary 106 (5th ed.1979).
Although there is not universal agreement on this point, it appears that for verbal or nonverbal conduct to fall within the definition of the hearsay rule as defined under the federal rules of evidence, it must be either an expressly assertive written or spoken utterance, or nonverbal conduct expressly intended to be an assertion—the federal rules appear to have excluded from the definition of hearsay “implied assertions”—or unstated assertions that are inferred from verbal or nonverbal conduct. The advisory committee’s note to
“[N]onverbal conduct ... may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence prоperly includable within the hearsay concept. Admittedly, evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. ... Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c).”
The second question that must be answered in the hearsay analysis is closely tied to the first. A writing or spoken utterance cannot be a “statement” under the hearsay rule unless it is made by a “declarant,” as required by
Cases involving electronic evidence often raise the issue of whether electronic writings constitute “statements” under
The requirement that the statement be offered to prove its substantive truth.
The third question that must be answered in determining if evidence is hearsay is whether the statement is offered to prove its substantive truth, or for some other purpose.
When analyzing the admissibility of electronically generated evidence, courts also have held that statements contained within such evidence fall outside the hearsay definition if offered for a purpose other than their substantive truth. Siddiqui,
Finally, of particular relevance to this suit are the cases that have held that communications between the parties to a contract that define the terms of a contract, or prove its content, are not hearsay, as they are verbal acts or legally operative facts. See, e.g., Preferred Properties Inc. v. Indian River Estates Inc.,
Is the evidence excluded from, the definition of hearsay by
Once it has been determined whether evidence falls into the definition of hearsay because it is a statement, uttered by a declarant, and offered for its substantive truth, the final step in assessing whether it is hearsay is to see if it is excluded from the definition of hearsay by two rules: 801(d)(1), which identifies three types of prior statements by witnesses who actually testify and are subject to cross examination, which are excluded from the definition of hearsay, and 801(d)(2), which identifies five types of admissions by a party opponent that are excluded from the definition of hearsay.
As can be seen from reading
Given the near universal use of electronic means of communication, it is not surprising that statements contained in electronically made or stored evidence often have been found to qualify as admissions by a party opponent if offered against that party. Siddiqui,
If, after applying the foregoing four-step analysis, it is determined that the electronic evidence constitutes a statement by a person that is offered for its substantive truth and is not excluded from the definition of hearsay by
Rule 803 contains twenty-three separate hearsay exceptions. At first glance they may seem like they have nothing in common, but they do. All twenty-three are admissible regardless of whether the declarant is available to testify, distinguishing them from the five exceptions in Rule 804, each of which is inapplicable unless the declarant is “unavailable,” as defined by any of the five methods identified in Rule 804(a). In addition, the twenty-three exceptions in Rule 803 may be grouped in three broad categories: Category 1 includes exceptions dealing with perceptions, observations, state of mind, intent and sensation 803(1) (present sense impressions); 803(2) (excited utterances); 803(3) (then existing state of mind, condition or sensation); 803(4) (statements in furtherance of medical diagnosis and treatment). Category 2 includes documents, records, and other writings 803(5) (past recollection recorded); 803(6) & (7) (business records); 803(8) & (10) (public records); 803(9) (records of vital statistics); 803(11) (records of religious organizations); 803(12) (certificates of baptism, marriage and related events); 803(13) (family records); 803(14) (records of documents affecting an interest in property); 803(15) (statements in documents affecting an interest in property); 803(16) (ancient documents); 803(18) (learned treatises); 803(22) (judgments of conviction in a criminal case); and 803(23) (judgments in certain kinds of civil cases). Category 3 includes statements dealing with reputation 803(19) (reputation regarding personal or family history); 803(20) (reputation regarding custom, use and practice associated with land, and historically significant facts); and 803(21) (reputation regarding character within the community and among associates).
Given the widely accepted fact that most writings today are created and stored in electronic format, it is easy to see that the many types of documents and writings covered in Rule 803 will implicate electronic writings. Similarly, given the ubiquity of communications in electronic media (e-mail,
Rule 803(1) Present Sense Impression
Rule 803(1) creates an exception from exclusion under the hearsay rule for:
“(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
There are three elements that must be met for this hearsay exception to apply: (1) the declarant must have personally perceived the event that is described in the statement; (2) the statement must be a simple explanation or description of the event perceived; and (3) the declaration and the event described must be contemporaneous. Weinstein at § 803.03[1]. Present sense impressions are considered trustworthy because the near simultaneous expression of the explanation or description of the event with its perception militates against any memory deficiency, or opportunity to intentionally misstate what occurred.
Closely related to
“(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”
The theory behind the excited utterance exception is that perception of a startling or exciting event produces in the declarant an emotional state that reduces the likelihood that the description of the event while under this emotional state will be inaccurate or purposely misstated.
The prevalence of electronic communication devices, and the fact that many are portable and small, means that people always seem to have their laptops, PDA’s, and cell phones with them, and available for use to send e-mails or text messages describing events as they are happening. Further, it is a common experience these days to talk to someone on the phone and hear them typing notes of the conversation on a computer as you are talking to them. For these reasons,
“(3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.”
“(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business*571 activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies withRule 902(11) ,Rule 902(12) , or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”
The foundational elements for a business record are: (1) The document must have been prepared in the normal course of business; (2) it must have been made at or near the time of the events it records; (3) it must be based on the personal knowledge of the entrant or of an informant who had a business duty to transmit the information to the entrant;
“(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible underRule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record—
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.”
The business record exception is one of the hearsay exceptions most discussed by courts when ruling on the admissibility of electronic evidence. The decisions demonstrate a continuum running from cases where the court was very lenient in admitting electronic business records, without demanding analysis, to those in which the court took a very demanding approach and scrupulously analyzed every element of the exception, and excluded evidence when all were not met. For example, in State of New York v. Microsoft, the court analyzed the admissibility of “e-mail chains.”
Similarly, in Rambus Inc. v. Infineon Tech. AG, the Court critically analyzed the admissibility of e-mail under the business record exception to the hearsay rule.
In contrast to the demanding approach taken in Rambus and New York v. Microsoft, the court in United States v. Safavian took a more flexible approach to the admissibility of e-mail chains.
“[t]he defendant’s argument is more appropriately directed to the weight the jury should give the evidence, not its authenticity. While the defendant is correct that earlier e-mails that are included in a chain—either as ones that have been forwarded or to which another has replied— may be altered, this trait is not specific to e-mail evidence. It can be true of any piece of documentary evidence, such as-a letter, a contract or an invoice.... The possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthentieated as a matter of course____ We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of the nation’s population and is of particular importance in the professional world.... Absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done.”
Id. at 41. Notably, the court did not engage in the demanding business records exception analysis that was done by the courts in Ram-bus and New York v. Microsoft.
Perhaps the most demanding analysis regarding the admissibility of electronic evidence under the business record exception to the hearsay rule appears in In re Vee Vinhnee,
In contrast to the 'demanding approach taken in In re Vee Vinhnee, many other courts have admitted electronic business rec
The lesson to be taken from these cases is that some courts will require the proponent of electronic business records or e-mail evidence to make an enhanced showing in addition to meeting each element of the business records exception. These courts are concerned that the information generated for use in litigation may have been altered, changed or manipulated after its initial input, or that the programs and pi-ocedures used to create and maintain the records are not reliable or accurate. Others will be content to view electronic business records in the same light as traditional “hard copy” records, and require only a rudimentary foundation. Unless counsel knows what level of scrutiny will be required, it would be prudent to analyze electronic business records that are essential to his or her case by the most demanding standard. The cases further suggest that during pretrial discovery counsel should determine whether opposing counsel will object to admissibility of critical documents. This can be done by requesting a stipulation, or by propounding requests for admission of fact and genuineness of records under
In addition to the above described hearsay exceptions, courts have found that electronic records also met the requirements of the public records exception under
“(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”
Furthermore, “[¿justification for the exception is the assumption that a public official will perform his duty properly, and the unlikelihood that he will remember details independently of the record.”
“(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.”
This exception covers “lists, etc., prepared for the use of a trade or profession ... newspaper market reports, telephone directories, and city directories. The basis of trustworthiness is general reliance by the public or by a particular segment of it, and the motivation of the compiler to foster reliance by being accurate.”
A final observation needs to be made regarding hearsay exceptions and electronic evidence. Rule 802 generally prohibits the admission of hearsay unless one of the exceptions in
In summary, when analyzing the admissibility of ESI for hearsay issues, counsel should address each step of the inquiry in order: does the evidence contain a statement, made by a person, which is offered for its substantive truth, but which does not fall into the two categories of statements identified in 801(d)(1) and 801(d)(2). If, as a result of this analysis, a determination is made that
If ESI has cleared the first three hurdles by being shown to be relevant, authentic, and admissible under the hearsay rule or an exception thereto, it must also be admissible under the original writing rule before it can be admitted into evidence or considered at summary judgment.
The Original Writing Rule, Rules 1001-1008
The next step in evaluating the admissibility of electronic evidence is to analyze issues associated with the original writing rule, which requires an original or duplicate original to prove the contents of a writing, recording or photograph unless secondary evidence is deemed acceptable.
It has been acknowledged that the original writing rule has particular applicability to electronically prepared or stored writings, recordings or photographs. One respected commentator has observed:
“Computer-based business records commonly consist of material originally produced in a computer (e.g. business memoranda), data drawn from outside sources and input into the computer (e.g. invoices), or summaries of documents (e.g. statistical runs). The admissibility of computer-based records ‘to prove the content of a writing’ is subject to the best evidence rule set out in Rule 1002. The rule generally requires the original of a writing when the contents are at issue, except that a ‘duplicate’ is also admissible unless a genuine issue is raised about its authenticity. A duplicate includes a counterpart produced by ‘electronic re-recording, which accurately reproduces the original.’ Courts often admit computer-based records without making the distinction between originals and duplicates.”
Weinstein at § 900.07[l][d][iv] (citation omitted).
When analyzing the original writing rule as it applies to electronic evidence, the most important rules are
“For purposes of this article the following definitions are applicable:
(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original.”
(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.”
It is apparent that the definition of “writings, recordings and photographs” includes evidence that is electronically generated and stored. See
Once the definitions of the original writing rule are understood, the next important determination is whether the rule applies at all. Rule 1002 answers this question. It provides: “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” As the advisory committee’s note to Rule 1002 makes clear:
“Application of the rule requires resolution of the question whether contents are sought to be proved. Thus an event may be proved by non-documentary evidence, even though a written record of it was made. If, however, the event is sought to be proved by the written record, the rule applies. For example, payment may be proved without producing the written receipt which was given. Earnings may be proved without producing books of account in which they are entered. Nor does the rule apply to testimony that books or records have been examined and found not to contain any reference to a designated matter.
The assumption should not be made that the rule will come into operation on every occasion when use is made of a photograph in evidence. On the contrary, the rule will seldom apply to ordinary photographs.... On occasion, however, situations arise in which contents are sought to be proved. Copyright, defamation, and invasion of privacy by photograph or motion picture falls into this category. Similarly, as to situations in which the picture is offered as having independent probative value, e.g. automatic photograph of bank robber, photograph of defendant engaged in indecent act.”
An example of when the original writing rule did apply to electronic evidence is Laughner v. State,
“EvidenceRule 1002 , the ‘best evidence’ rule, requires an ‘original’ in order to prove ‘the content’ of a writing or recording. However, EvidenceRule 1001(3) provides that when ‘data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately is an ‘original.’ According to [the police officer] he saved the conversations with Laughner after they were concluded, and the printout document accurately reflected the content of those conversations. Therefore, the printouts could be found to be the ‘best evidence’ of the conversations [between the defendant and the officer].”
Laughner,
It is important to keep in mind that failure to properly object to the introduction of evidence in violation of the original writing rule likely will result in a waiver of the error on appeal. Weinstein at § 1002.04[5][a] (“Procedural safeguards adopted by federal courts also militate against an overtechnical application of the best evidence rule. For example, an appellant’s failure to properly raise an objection to the best evidence rule at trial will result in waiver of the error on appeal.”)'; see also State v. Braidic,
“The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
*580 (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or
(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.”
The first example may be particularly suited for electronic evidence. Given the myriad ways that electronic records may be deleted, lost as a result of system malfunctions, purged as a result of routine electronic records management software (such as the automatic deletion of e-mail after a set time period) or otherwise unavailable means that the contents of electronic writings may have to be proved by secondary evidence.
Additionally,
Finally,
Rule 1006 recognizes another source of secondary evidence to prove the contents of writings, recordings, or photographs, stating:
*581 “The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.”
The advisory committee’s note recognizes that Rule 1006 is one of necessity, as the “admission of summary of voluminous books, records, or documents offers the only practicable means of making their contents available to judge and jury.” A number of observations may be made about the use of summaries under Rule 1006. First, as the rule expressly states, the writings, recordings or photographs to be summarized must be voluminous. Weinstein at § 1006.03 (“Charts, summaries or calculations are, however, inadmissible when the content being proved is neither voluminous or complicated.”) (citations omitted). Second, although the rule is silent on the nature of the summary, the prevailing view is that it may be either written, or testimonial. Id. at § 1006.05[2] (“[sjummary evidence need not be an exhibit, but may take the form of a witness’s oral testimony.”). Third, the majority view is that the summaries themselves constitute the evidence of the contents of the materials summarized, rather than the underlying writings, recordings or photographs. Id. at § 1006.04[1] (“[t]he majority rule is that the summary itself is the evidence to be considered by the factfinder when the underlying documents are voluminous and the other requirements of Rule 1006 are met. Other decisions, however, have held that Rule 1006 summaries were not evidence, and that the jury should be so instructed.”). Fourth, if the summaries are accepted as the evidence of the materials summarized, they function as the equivalent of a special exception to the hearsay rule. Id. at § 1006.05[4] (“Rule 1006 should be regarded as a special exception to the hearsay rule.”); Rice at 197-98 (Recognizing that summaries of voluminous materials that are introduced to prove the content of the summarized material creates a hearsay problem. The author suggests that the residual hearsay rule, Rule 807, is an exception that may apply to overcome this problem). Fifth, the writings, recordings and photographs that are summarized must be made available to the adverse party for examination or copying reasonably in advance of the use of the summary, a requirement that originates from Rule 1006 itself, regardless of whether the adverse party has served a request for production of documents under
Because the production of electronically stored information in civil cases frequently is voluminous, the use of summaries under Rule 1006 is a particularly useful evidentiary tool, and courts can be expected to allow the use of summaries provided the procedural requirements of the rule are met. See, e.g., Wapnick v. Comm’r of Internal Revenue, T.C. Memo. 2002-45, (T.C.2002) (holding that summaries of voluminous computer records were admissible under Rule 1006 even though they were prepared in anticipation of litigation, because the underlying documents had been admitted into evidence and reasonably had been made available to the opposing party to inspect).
Rule 1007 identifies another, though little used, way in which secondary evidence may be used to prove the contents of electronically prepared or stored information. It provides that the:
“[cjontents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admis*582 sion, without accounting for the nonproduction of the original.”
On its face this rule is limited to admissions by a party opponent regarding the content of a writing, recording or photograph. Use of the word “admission” refers to any of the types of admissions covered by
Because
“When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.”
This rule is a specialized application of
“Most preliminary questions of fact in connection with applying the rule preferring the original as evidence of contents are for the judge, under the general principles announced inRule 104 [a]. Thus, the question whether the loss of the originals has been established, or of the fulfillment of other conditions specified inRule 1004 ,*583 supra, is for the judge. However, questions may arise which go beyond the mere administration of the rule preferring the original and into the merits of the controversy ... The latter portion of [Rule 1008 ] is designed to insure treatment of theses situations as raising jury questions. The decision is not one for uncontrolled discretion of the jury but is subject to the control exercised generally by the judge over jury determinations. SeeRule 104(b) .”
See also Weinstein at § 1008.02[1]-1008.04[5]. Under the rule, the trial judge determines: whether originals have been lost or destroyed under
In summary, when counsel intend to offer electronic evidence at trial or in support of a motion for summary judgment they must determine whether the original writing rule is applicable, and if so, they must be prepared to introduce an original, a duplicate original, or be able to demonstrate that one of the permitted forms of secondary evidence is admissible. In this case, counsel did not address the original writing rule, despite its obvious applicability given that the e-mail exhibits were closely related to a controlling issue and there were proving the contents of the e-mails themselves.
The final evidentiary issue that must be considered in determining whether electronic evidence will be admitted is whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, as proscribed under Rule 403 of the federal rules of evidence.
Balancing Probative Value Against the Danger of Unfair Prejudice Under Rule 403
After evaluating the issues associated with relevance, authenticity, hearsay, and the original writing rule, the final step to consider with regard to electronically prepared or stored evidence is the need to balance its probative value against the potential for unfair prejudice, or other harm, under
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
“[C]ertain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail*584 risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.... ‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily an emotional one.”
See also Weinstein at § 403.02[l][a].
A determination of whether evidence should be excluded under
Although
Thus, when a lawyer analyzes the admissibility of electronic evidence, he or she should consider whether it would unfairly prejudice the party against whom it is offered, confuse or mislead thе jury, unduly delay the trial of the case, or interject collateral matters into the case. If a lawyer is offering electronic evidence, particularly computer animations, that may draw a
Conclusion
In this case the failure of counsel collectively to establish the authenticity of their exhibits, resolve potential hearsay issues, comply with the original writing rule, and demonstrate the absence of unfair prejudice rendered their exhibits inadmissible, resulting in the dismissal, without prejudice, of their cross motions for summary judgment. The discussion above highlights the fact that there are five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice. Although each of these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try. The Court hopes that the explanation provided in this memorandum order will assist in that endeavor.
Notes
. This case has been referred to me for all proceedings with the consent of the parties.
. The parties do not dispute that Maryland law applies.
. See, e.g. Orsi v. Kirkwood,
. Examples of internet postings include; data posted by the site owner, data posted by others with the consent of the site owner, and data posted by others without consent, such as “hackers.” Examples of computer-generated documents and files include; electronically stored records or data, computer simulation, and computer animation. See 2 McCormick On Evidence § 227 (John William Strong, et al. eds., 6th ed.2006); Gregory P. Joseph, Internet and Email Evidence, 13 Prac. Litigator (Mar.2002), reprinted in 5 Stephen A. Saltzburg et al„ Federal Rules of Evidence Manual, Part 4 at 20 (9th ed.2006)(hereinafter “Joseph”); Hon. Paul W. Grimm and Claudia Diamond, Low-Tech Solutions to High-Tech Wizardry: Computer Generated Evidence, 37 MD. B.J. 4 (July/August, 2004).
. It has been noted that "[t]he Federal Rules of Evidence ... do not separately address the admissibility of electronic data.” Adam Cohen and David Lender, Electronic Discovery: Law and Practice § 6.01 (Aspen Publishers 2007). However, "the Federal Rules of Evidence apply to computerized data as they do to other types of evidence.” Manual for Complex Litigation § 11.447 (4th ed.2004). Indeed,
. Precision Piping and Instruments v. E.I. du Pont de Nemours and Co.,
. Weinstein at § 104.11 [3].
. Id.; United States v. Branch,
. Weinstein at § 104.02[2].
. Branch,
. Id. (citation omitted). See also,
. Branch,
. Id. at 1370-71.
. Id. (citation omitted)
. Id.
. See, e.g., United States v. Safavian,
.
.
. Id. (stating that "[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”); Saltzburg at § 401.02[1]; Weinstein at § 402.02[1].
. See, e.g., In re Vee Vinhnee,
. In In re Vee Vinhnee, the court addressed the authentication of electronically stored business records It observed "[ajulhenticating a paperless electronic record, in principle, poses the same issue as for a paper record, the only difference being the format in which the record is maintained.....” However, it quickly noted "[t]he paperless electronic record involves a difference in the format of the record that presents more complicated variations on the authentication problem than for paper records. Ultimately, however, it all boils down to the same question of assurance that the record is what it purports to be.” The court did conclude, however, that "it is becoming recognized that early versions of computer foundations were too cursory, even though the basic elements covered the ground,” before exercising a demanding analysis of the foundation needed to authenticate a paperless business record and lay the foundation for the business record exception to the hearsay rule, ultimately ruling that a proper foundation had not been established, and excluding the evidence.
. "Oftentimes a witness need not be familiar with specific exhibits to be sufficiently knowledgeable to authenticate or identify them. Businеss records and records of government agencies, for example, are frequently authenticated by witnesses who have never seen the specific records that comprise the exhibits and know nothing about the specific information they contain. Their authentication is accomplished when a witness identifies the exhibits as documents of a type that the organization typically develops, and testifies about the procedures the organization follows in generating, acquiring, and maintaining documents of that type, and explains the method by which the specific exhibits were retrieved from the organization's files. Similarly, exhibits that are automatically produced upon the occurrence of specified events may be authenticated by the testimony of persons with knowledge of the system or process that results in the production of the exhibit.” (footnote omitted).
. Federal Judicial Center, Managing Discovery of Electronic Information: A Pocket Guide for Judges, Federal Judicial Center, 2007 at 24; see also Williams v. Sprint/United Mgmt. Co.,
. See, e.g., United States District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information 20, http: //www.mdd.uscourts.gov/news/news/ ESIProtocol.pdf (last visited April 10, 2007) (encouraging parties to discuss use of hash values or “hash marks” when producing electronic records in discovery to facilitate their authentication).
. United States District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information 17, http:// www.mdd.uscourts.gov/news/news/ESIProtocol.pdf (last visited April 10, 2007) ("When parties have agreed or the Court has ordered the
. "Computer output may be authenticated under
. In Vinhnee, the court cited with approval an eleven-step foundational authentication for computer records advocated by one respected academic. Id. (citing Edward J. Imwinkelried, Evidentiary Foundations 58-59 (LexisNexis 6th ed.2005)). Although this foundation is elaborate, and many courts might not be so demanding as to require that it be followed to authenticate computer generated records, the fact that one court already has done so should put prudent counsel on notice that they must pay attention to how they will authenticate computer generated records, and that they should be prepared to do so in a manner that complies with the Federal Rules of Evidence and any governing precedent. The price for failing to do so may be, as in In re Vee Vinhnee, exclusion of the exhibit. See, e.g., Indianapolis Minority Contractors Ass’n, Inc. v. Wiley,
. Because the business record exception will be discussed at some length below, the analysis of the requirements of
. The "wayback machine” refers to the process used by the Internet Archive Company, www. archive.org, to allow website visitors to search for archived web pages of organizations. St. Luke’s,
. There, the court stated that,
"Plaintiffs electronic 'evidence' is totally insufficient to withstand Defendant's Motion to Dismiss. While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant's Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the' Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any website from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found inFed.R.Evid 807 . Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form from the United States Coast Guard or discover alternative information verifying what Plaintiff alleges.”
Id. at 774-775.
. The court noted that a "reduced evidentiary standard” applied to the authentication of exhibits purporting to depict the defendant's website postings during a preliminary injunction motion. The court found that the exhibits had been authenticated because of circumstantial indicia of authenticity, a failure of the defendant to deny their authenticity, and the fact that the exhibits had been produced in discovery by the defendant. The court declined to require proof that the postings had been done by the defendant or with its authority, or evidence to disprove the possibility that the contents had been altered by third parties.
. Joseph at 21; see also Saltzburg at § 901.02[12],
. Id. at 22.
. "Computerized data”, however, raise unique issues concerning accuracy and authenticity. Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions. The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling. The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy.
"The judge should therefore consider the accuracy and reliability of computerized evidence. ...”
. “In the past, many courts have been lax in applying the authentication requirement to cornputer records; they have been content with foundational evidence that the business has successfully used the computer system in question and that the witness recognizes the record as output from the computer. However, following the recommendations of the Federal Judicial Center's Manual for Complex Litigation, some courts now require more extensive foundation. These courts require the proponent to authenticate a computer record by proving the reliability of the particular computer used, the dependability of the business's input procedures for the computer, the use of proper procedures to obtain the document offered in court, and the witness’s recognition of that document as the readout from the computer.” (citation omitted).
. Imwinkelried, Evidentiary Foundations at § 4.03[2],
. In addition to their insight regarding the authentication of electronic records, these cases are also important in connection to the analysis of whether certain types of electronically stored records constitute hearsay when offered for their substantive truth.
. Manual for Complex Litigation at § 11.446.
. An example of nonassertive written verbal conduct would be to write a person’s name and address on an envelope. An example of nonassertive spoken verbal conduct would be to ask a question that does not contain within it a factual assertion "Is it going to rain tomorrow?”
. "Words and actions may convey meaning even though they were not consciously intended as assertions. Sometimes the relevance of words or actions to show a particular fact depends on drawing an inference that a person would not have spoken or acted in a certain way unless the person believed a relevant fact to be true. According to the Advisory Committee, the 'key to the definition is that nothing is an assertion unless it is intended to be'. Many courts have found that words or conduct offered to show the actor's implicit beliefs do not constitute statements under the hearsay rule unless they were intended by the actor as an assertion.... Other courts, however, have noted that an oral or written declaration is hearsay if offered to show the truth of a matter implied by its contents.”
. "Common-law jurisdictions divide on whether nonverbal conduct that is not intended as an assertion is hearsay if it is introduced to show the truth of the actor's underlying beliefs.... The reasons for excluding non-assertive conduct from the hearsay rule are persuasive. A principal reason for excluding hearsay is that the veracity of the declarant cannot be tested by cross-examination. In the case of non-assertive acts, the actor by definition does not intend to make an assertion, meaning that the risk of insincerity is substantially diminished. The actor is at least not trying to lie. Moreover, non-assertive conduct is usually more reliable than the ordinary out-of-court statement, because by conduct the declarant has risked action on the correctness of his belief—he has put his money where his mouth is.”
. Saltzburg at § 801.02[l][e],
. Id. at § 801.02[l][f]; Weinstein at § 801.11[5][a].
. Saltzburg at § 801.2[l][g]; see also Weinstein at § 801.11[6].
. Saltzburg at § 801.02[l][h]. This category typically deals with statements from which the declarant’s state of mind is circumstantially inferred. For example, if someone says "Woe is me” it may be inferred that they are depressed or sad. Such statements are in contrast to statements that constitute direct evidence of the declarant’s state of mind, offered to prove that state of mind, for example “I feel good,” offered to prove that the declarant felt good. The later example is hearsay, but covered by an exception,
. Weinstein at § 801.11[5][a], [c].
. Saltzburg at § 801.02[l][j].
. Weinstein at § 801.11 [3]-[4].
. Id. at § 801.11[2].
. A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statements of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it. For example, the hearsay rule does not exclude relevant evidence as to what the contracting parties said or wrote with respect to the making or the terms of an agreement.
. See
. The majority view is that the source of the information memorialized in the business record must have a business duty to transmit the information to the maker of the record, if the maker him or herself lacks personal knowledge of the facts or events. See, e.g.,
. "[T]he admissibility of market reports and commercial publications under
. Traditionally the rule has been referred to as the "Best Evidence Rule,” which is a misleading title. The rule is more accurately is referred to as the "Original Writing Rule” because it does not mandate introduction of the "best” evidence to prove the contents of a writing, recording or photograph, but merely requires such proof by an "original," "duplicate” or, in certain instances, by "secondary evidence”—any evidence that is something other than an original or duplicate (such as "testimony, or a draft of a writing to prove the final version, if no original or duplicate is available.”)
. "In today’s commercial world, a single transaction often generates successive entries of the same information in separately prepared writings. Though the purposes of these separate records may be different, a computerized business record, prepared simultaneously with or within a reasonable time period of the written record, and containing the same or similar information, would appear to be no less an ‘original’ than a handwritten record. However, it seems equally clear that where a written record, prepared prior to the computer record, contains a more detailed and complete description of the transaction than that contained in the computer record, the proponent of the evidence should be required to produce the more detailed record, or account for its nonproduction under F.R.E. 1004. Similarly, where a computerized record appears to be nothing more than a summary of a more detailed written record, the written record should be produced except where the requirements of F.R.E. 1006 have been satisfied.” (citations omitted).
. See, for example, newly revised
. However, despite the limitation in
. Weinstein at § 1008.04[3]
. Id. at§ 1008.04[4]
. Id. at§ 1008.04[5]
. Id. at§ 1008.04[6]
. "
. I acknowledge with gratitude the tireless assistance of two exceptionally talented law student interns, Ms. Puja Gupta and Mr. Ben Peoples, whose assistance in cite checking was invaluable, and my law clerk, Ms. Kathryn Widmayer, who consistently makes the most difficult tasks appear easy.