Admissibility of Email and Internet Evidence (2022 Edition)

Dennis I. Wilenchik | Wilenchik & Bartness, P.C.

Dennis I. Wilenchik is the managing partner of Wilenchik & Bartness, P.C. and is a nationally certified civil trial and pre-trial specialist with the National Board of Trial Advocacy, with over 39 years’ experience as an attorney. He represents a select group of clients, including high-profile clients, in the business, real estate, construction, and government sectors. Mr. Wilenchik has tried hundreds of cases in both federal and state court and is licensed in Arizona, the District of Columbia, New York, Texas, the Ninth Circuit Court of Appeals, and the United States Supreme Court.

Prior to forming Wilenchik & Bartness in 1991, Mr. Wilenchik was a senior partner and head of litigation for the 45-lawyer firm, Storey & Ross, that later became the Phoenix office of the international firm of Squire Patton Boggs. After a judicial clerkship at the Supreme Court of Arizona in 1977 with Justice Holohan, he was a judicial assistant for the Presiding Criminal Judge of Maricopa County before joining the Maricopa County Attorney’s Office as a Deputy County Attorney where Mr. Wilenchik was promoted to the Special Operations Division specializing in white collar crime before entering private civil practice in 1980.

Mr. Wilenchik is rated Martindale-Hubbell AV®-Preeminent™, the highest rating available under the Martindale Hubbell rating system, and is listed in the national Bar Register of Preeminent Lawyers. He has been named “Best Trial Lawyer” by Arizona Foothills Magazine, is a member of the State Bar of Arizona, Top Rated Lawyers, Lawyers of Distinction, Rue’s Best Attorneys of America, Arizona’s Finest Lawyers, and The Fellows of the American Bar Association.

I. Introduction | 2:00pm – 2:10pm

1. The digital revolution and the role of counsel and clients and how they:
   a. Store, preserve, retain, produce and
   b. Present at trial
2. Counsel’s duties:
   a. Understand and be fluent in information technology
   b. “Identify, locate, and maintain information that is relevant to specific, predictable and identifiable litigation.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (2010).

II. What is ESI? | 2:10pm – 2:25pm

1. Electronically Stored Information is defined under the Federal Rules of Civil Procedure as information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software
   a. The importance of starting with “Native Files” or “Near Native Files”
   b. Email, instant and text messages, chat room messages
   c. Social Media sites
   d. Blogs
   e. Websites and the waybackmachine.org
   f. Information stored on servers and in the cloud

III. Overview of the process of gathering and receiving information | 2:25pm – 2:35pm

1. From the Client
   a. Gathering native files from the client and how to do so properly (Including chains of custody)
   b. Processing the information (either internally or by an outside vendor)
   c. Coding
   d. Culling
   e. Redaction or marking in accordance with a protective order
   f. Production

IV. Drafting discovery that captures all forms of ESI | 2:35pm – 2:50pm

1. Rule 34, FRCP: “a] party may serve on any other party a request to produce and permit the requesting party to inspect, copy, test, or sample…any electronically stored information” as stored in the ordinary course of business
   a. Exploring how to avoid missing ESI if not properly identified
   b. Requesting metadata, which is now discoverable, assuming relevant;
   c. Determining, in advance, how you want the data provided so that it is immediately reviewable and which documents (i.e., Excel Spreadsheets) will you demand natively?
   d. What is in the ordinary course of business?
   e. Responding to Interrogatories with ESI
   f. ESI from Non-Parties under Rule 45, FRCP

V. Duty to Preserve | 2:50pm – 3:00pm

1. Gathering all information early and correctly at the onset of the case is central to a case
2. Litigation holds and the date that the duty to preserve evidence is or should have been triggered
3. Firm’s and Client’s individual roles in preserving data to avoid sanctions and why those parameters should be set forth at the onset of the case with the client
4. The best methods for gathering the information, retaining, and destroying information
5. Spoliation and FED. R. CIV. P. 37(e) “Safe Harbor” provision for documents kept as part of a routine, good faith operation of electronic information
6. The dangers of having information forwarded through firm email

Break | 3:00pm – 3:10pm

VI. Meet and confer re ESI | 3:10pm – 3:20pm

1. Rule 26(f), Fed. R. Civ. P.
2. What is accessible v. inaccessible ESI (Rule 26(b))—the scope of electronic discovery and Initial Disclosure Statements
3. Defining how each party wishes to receive the information so that it complies with the programs used, the load files needed, how to produce, format, whether OCR will be required, whether to produce in .tif or .pdf, and which files might be better provided natively, the metadata
4. Inadvertent Disclosure and “Claw Back” Agreements (FRCP 26(b) and FRE 502

VII. Authentication | 3:20pm – 3:30pm

1. Authenticating or Identifying Evidence, FRE 901
   a. Public records
   b. Evidence about a process or system
2. Self-authentication, FRE 902
3. Subscribing Witness’ Testimony, FRE 903

VIII. Admissibility | 3:30pm – 3:45pm

1. Hearsay, FRE 801-804
   a. What is the Statement? (Computer-stored vs. computer-generated)
   b. Offered for the truth
2. Hearsay exceptions (Instant messages and emails)
   a. Admission by Party Opponent
3. Business Records
   a. Proving Authenticity
4. Best Evidence FRE 1002

IX. Expert Witnesses | 3:45pm – 3:55pm

1. Issues related to emails and other transmissions between client and expert and counsel and expert.
2. What is and is not protected.
3. What needs to be produced and what may be protected by attorney-client/work product.

X. Sanctions for Failure to Disclose | 3:55pm – 4:10pm

1. Possible Sanctions include: Not allowed to use the information or the witness to supply evidence. The party opposing must show that the failure was substantially justified or is harmless
2. Other Sanctions: payment of reasonable expenses, including attorney fees, caused by the failure to disclose, order striking pleadings, staying further proceedings until the order is obeyed, dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party under Rule 37(b)(2)(C); or informing the jury of the failure to make the disclosure under Rule 37(c)(1) and dismissal
3. Worst Cases and common mistakes which lead to increased expenses and exposure to client and firm