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.
The Babcock Law Firm, P.C.
Ryan Babcock is a trial attorney with The Babcock Law Firm, P.C., in Brunswick, Georgia, representing seriously injured plaintiffs in all types of personal injury matters. He is admitted to practice in Georgia and Ohio, and he has tried cases in state and federal courts throughout the state of Georgia.
On-Demand:July 28, 2022
$195.002 hour CLE
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Session l - Admissibility of Email and Internet Evidence – Dennis I. Wilenchik
Attorneys have an ethical duty to understand the nuances of preserving, gathering, culling, producing, and presenting electronic evidence at trial. Most information today is electronic. State and federal rules of procedure impose upon parties and their counsel an affirmative duty to identify and store all electronically stored information (“ESI”). The more forms of ESI that an attorney has at trial, the greater the issues related to getting that evidence admitted. This CLE will give you the tools to authenticate ESI and be prepared to overcome objections at trial.
Key topics to be discussed:
Definition of electronically stored information in the rules of procedure and rules of evidence
Overview of the process of gathering, receiving, and culling information from the client, opposing counsel and third parties
Effective discovery responses and requests and your duties under Rule 26, FED. R. CIV. P.
Benefits of the Meet and Confer Process
Foundation, authentication, and admissibility
The latest case law involving sanctions for failure to properly disclose ESI
Session ll - Challenges and potential problems with admitting email and internet evidence – Ryan Babcock
The presentation will cover the challenges and potential problems with admitting email and internet evidence at trial, including authentication, relevance, foundation, hearsay pitfalls and considerations. We will discuss the strategic implications for timing, preparation, and format of presentation in dealing with those problems before and during trial. We will also discuss practical insights, such as using an order of proof chart to have a checklist of the critical or important evidence for your case in chief as well as your opponent’s case in chief, and planning for unexpected or adverse rulings involving your evidence.
Key topics to be discussed:
Using offensive motions in limine, bench briefs, and proffers
Knowing your judge and your opposing counsel
Challenges relating to medical records, conversations, and emails
Special considerations for email and internet evidence
Date: July 28, 2022
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.
Ryan Babcock | The Babcock Law Firm, P.C.
Ryan Babcock is a trial attorney with The Babcock Law Firm, P.C., in Brunswick, Georgia, representing seriously injured plaintiffs in all types of personal injury matters. He is admitted to practice in Georgia and Ohio, and he has tried cases in state and federal courts throughout the state of Georgia. Prior to starting his own law firm, he worked for several years as a law clerk to U.S. District Judge Anthony A. Alaimo, and worked for several years in Atlanta, Georgia, representing corporate defendants in product liability, trucking, premises, and business litigation cases, in cases pending around the country.
Session l – Admissibility of Email and Internet Evidence | 2:00pm – 3:40pm
I. Introduction | 2:00pm – 2:10pm
The digital revolution and the role of counsel and clients and how they:
a. Store, preserve, retain, produce and
b. Present at trial
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 – 2:20pm
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
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 | 2:20pm – 2:30pm
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)
e. Redaction or marking in accordance with a protective order
IV. Drafting discovery that captures all forms of ESI | 2:30pm – 2:40pm
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 | 2:40pm – 2:50pm
Gathering all information early and correctly at the onset of the case is central to a case
Litigation holds and the date that the duty to preserve evidence is or should have been triggered
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
The best methods for gathering the information, retaining, and destroying information
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
The dangers of having information forwarded through firm email
VI. Meet and confer re ESI | 2:50pm – 3:00pm
Rule 26(f), Fed. R. Civ. P.
What is accessible v. inaccessible ESI (Rule 26(b))—the scope of electronic discovery and Initial Disclosure Statements
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
Inadvertent Disclosure and “Claw Back” Agreements (FRCP 26(b) and FRE 502
Break | 3:00pm – 3:10pm
VII. Authentication | 3:10pm – 3:15pm
Authenticating or Identifying Evidence, FRE 901
a. Public records
b. Evidence about a process or system
Self-authentication, FRE 902
Subscribing Witness’ Testimony, FRE 903
VIII. Admissibility | 3:15pm – 3:25pm
Hearsay, FRE 801-804
a. What is the Statement? (Computer-stored vs. computer-generated)
b. Offered for the truth
Hearsay exceptions (Instant messages and emails)
a. Admission by Party Opponent
a. Proving Authenticity
Best Evidence FRE 1002
IX. Expert Witnesses | 3:25pm – 3:30pm
Issues related to emails and other transmissions between client and expert and counsel and expert.
What is and is not protected.
What needs to be produced and what may be protected by attorney-client/work product.
X. Sanctions for Failure to Disclose | 3:30pm – 3:40pm
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
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
Worst Cases and common mistakes which lead to increased expenses and exposure to client and firm
Session ll – Challenges and potential problems with admitting email and internet evidence | 3:40pm – 4:10pm
I. Using offensive motions in limine, bench briefs, and proffers | 3:40pm -3:45pm
II. Knowing your judge and your opposing counsel | 3:45pm -3:55pm
III. Challenges relating to medical records, conversations, and emails | 3:55pm – 4:00pm
IV. Special considerations for email and internet evidence | 4:00pm – 4:10pm