how to get hearsay, emails, business records, social media

How to Get Hearsay, Emails, Business Records, Social Media and More Into Evidence

All rights reserved. These materials may not be reproduced without written permission from NBI, Inc. To order additional copies or for general information please contact our Customer Service Department at (800) 930-6182 or online at www.NBI-sems.com.

For information on how to become a faculty member for one of our seminars, contact the Planning Department at the address below, by calling (800) 777-8707, or emailing us at [email protected].

This publication is designed to provide general information prepared by professionals in regard to subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, this publication should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the services of a professional should be sought.

Copyright 2021NBI, Inc.

PO Box 3067Eau Claire, WI 54702

90105

IN-HOUSE TRAINING

Can training your staff be easy and individualized?

It can be with NBI.

Your company is unique, and so are your training needs. Let NBI tailor the content of a training program to address the topics and challenges that are relevant to you.

With customized in-house training we will work with you to create a program that helps you meet your particular training objectives. For maximum convenience we will bring the training session right where you need it…to your office. Whether you need to train 5 or 500 employees, we’ll help you get everyone up to speed on the topics that impact your organization most!

Spend your valuable time and money on the information and skills you really need! Call us today and we will begin putting our training solutions to work for you.

800.930.6182 Jim Lau Laurie Johnston

Legal Product Specialists [email protected] [email protected]

How to Get Hearsay, Emails, Business Records, Social Media and More Into Evidence

Authors

Sean Antone HuntThe Hunt Law Firm

Memphis, TN

Robert J. KasietaKasieta Legal Group, LLC

Madison, WI

Jeffrey O. MeunierJeffrey O. Meunier, Attorney at Law

Carmel, IN

David M PotteigerWalcheske & Luzi, LLC

Brookfield, WI

Brock J. SpechtNichols Kaster, PLLP

Minneapolis, MN

Presenters

SEAN ANTONE HUNT is the owner of the Memphis boutique commercial defense law firm, The Hunt Law Firm, where the two-person law firm brings a unique team format to in-house counsel and business clients for their litigation needs. He practices in the areas of Section 1983 litigation, construction litigation, products liability, personal injury, workers' compensation and insurance defense. Recently, Mr. Hunt has become a Rule 31 trained mediator as well. He is a member of the American, Tennessee, Memphis, and National (Ben F. Jones Chapter) bar associations; the State Bar of Georgia; and The Mississippi Bar. Mr. Hunt is licensed to practice law in Tennessee, Georgia and Mississippi. His firm provides defense for clients all over the state of Tennessee and parts of Mississippi and Georgia. He is currently the chair of the Memphis Bar Association's Technology Section, a member of the Memphis Bar Association's Communications Committee, where he writes the technology column and various other articles for the Memphis Lawyer Magazine. Mr. Hunt earned his B.S. degree, in civil engineering, from Tennessee State University and his J.D. degree from Vanderbilt University Law School.

ROBERT J. KASIETA is the founder of Kasieta Legal Group, LLC, in Madison, Wisconsin. He is a certified civil pretrial and trial specialist by the National Board of Trial Advocates. Mr. Kasieta practices in civil litigation, with an emphasis on plaintiff personal injury and employment cases, as well as commercial litigation. He has written and taught extensively in the areas of trial practice, personal injury law and insurance law, and is an instructor of trial practice at the University of Wisconsin Law School. Mr. Kasieta is admitted to practice before the U.S. Supreme Court, as well as the U.S. Court of Appeals for the 11th Circuit, U.S. Court of Appeals for the 7th Circuit, and all Wisconsin courts. He is a member of the Dane County Bar Association, State Bar of Wisconsin, and the American Association for Justice. Mr. Kasieta earned his B.S. degree, summa cum laude, from Northern Michigan University and his J.D. degree from Marquette University Law School.

JEFFREY O. MEUNIER is a sole practitioner with Jeffrey O. Meunier, Attorney at Law. He limits his civil litigation practice to personal injury, motor vehicle accidents, real estate, contracts, and business and commercial litigation. Mr. Meunier is admitted to practice in Indiana and before the U.S. District Court for the Northern and Southern districts of Indiana. He is a member of the Indianapolis Bar Association and the Hamilton County Bar Association. Mr. Meunier earned his B.A. degree from Indiana University and his J.D. degree from Indiana University School of Law.

BROCK J. SPECHT is a partner with Nichols Kaster, PLLP, in Minneapolis, Minnesota. Mr. Specht has a nationwide practice representing plaintiffs in complex, class-action lawsuits typically brought on behalf of workers, consumers, and retirees. His experience includes successfully representing clients in complex lawsuits in numerous federal courts across the country, in private arbitration, and before administrative agencies. Mr. Specht also has significant appellate experience arguing cases in both state and federal courts of appeals. Prior to joining Nichols Kaster, PLLP, he practiced with a major Minneapolis law firm for several years, representing both individuals and major corporations in nationwide litigation involving a wide variety of substantive areas of law. Mr. Specht's pro bono practice includes multiple appointments as a special assistant state public defender, representing clients before the Minnesota Court of Appeals. He has served as an adjunct professor of law at the University of St. Thomas School of Law, teaching appellate brief writing. Mr. Specht has been repeatedly recognized as a Rising Star and Super Lawyer by Minnesota Super Lawyers. He graduated with his B.A. degree from the University of Minnesota and he earned his J.D. degree, magna cum laude, from the University of St. Thomas School of Law.

Table Of Contents

Tools for Getting Your Evidence Admitted

Submitted by Jeffrey O. Meunier

1

I. Tools for Getting Your Evidence Admitted

A. Determining if Evidence is Admissible vs. Inadmissible

1st question: Is the proposed evidence relevant?

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

(a) the United States Constitution;

(b) the Indiana constitution;

(c) a statute not in conflict with these rules;

(d) these rules; or

(e) other rules applicable in the courts of this state.

Irrelevant evidence is not admissible

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice, confusing the

issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.

B. Interrogatories, RFPs, RFAs and Depositions

Interrogatories:

Rule 33. Interrogatories to Parties

(D) Scope--Use at trial. Interrogatories may relate to any matters which can be inquired into under Rule 26(B), and the answers may be used to the extent permitted by the rules of evidence.

An interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion, contention, or legal conclusion, but the court may order that such an interrogatory be answered at a later time, or after designated discovery has been completed, or at a pre-trial conference.

3

RFP

Documents and things produced in discovery are subject to the same evidentiary scrutiny as any

other document. The fact that a document has been produced does not self authenticate the

document or ensure its relevance or admissibility.

RFA

Rule 36. Requests for admission

(B) Effect of admission. Any matter admitted under this rule is conclusively established

Depositions

Rule 32. Use of depositions in court proceedings

(A) Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Rules of Evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition, by or against any party who had reasonable notice thereof or by any party in whose favor it was given in accordance with any one [1] of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.

(2) The deposition of a party, or an agent or person authorized by a party to testify or furnish such evidence or of anyone who at the time of taking the deposition was an officer, director, or managing agent, executive officer or a person designated under Rule 30(B)(6) or 31(A) to testify on behalf of an organization, including a governmental organization, or partnership which is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(a) that the witness is dead; or

(b) that the witness is outside the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(c) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or

4

(d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(e) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or

(f) upon agreement of the parties.

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which ought in context to be considered with the part introduced, and any party may introduce any other parts.

Substitution of parties pursuant to Rule 25 does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject-matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

C. Using Judicial Notice

Rule 201. Judicial Notice

(a) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice:

(1) a fact that:

(A) is not subject to reasonable dispute because it is generally known within the trial court’s territorial jurisdiction, or

(B) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(2) the existence of:

(A) published regulations of governmental agencies;

(B) ordinances of municipalities; or

(C) records of a court of this state.

(b) Kinds of Laws That May Be Judicially Noticed. A court may judicially notice a law, which includes:

(1) the decisional, constitutional, and public statutory law;

(2) rules of court;

(3) published regulations of governmental agencies;

(4) codified ordinances of municipalities;

(5) records of a court of this state; and

5

(6) laws of other governmental subdivisions of the United States or any state, territory or other jurisdiction of the United States.

(c) Taking Notice. The court:

(1) may take judicial notice on its own; or

(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding.

(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

D. Utilizing Affidavits

In most cases affidavits even though sworn are hearsay. Affidavits may be utilized to

authenticate medical or business records.

E. Accumulating Extrinsic Evidence

F. Negotiating and Using Stipulations

A stipulation is a formal legal acknowledgment and agreement made between opposing

parties before a pending hearing or trial. For example, both parties might stipulate to certain facts

and so not have to argue them in court. After the stipulation is entered into, it is presented to the

judge. Use of stipulations at trial are extremely useful to streamline presentation of evidence and

pinpoint issues for trial.

G. Using Motions in Limine

A motion in limine is an evidentiary motion that seeks a determination as to whether to

exclude (or admit) evidence before it is offered at trial. Motion’s in limine are powerful tools to

control what evidence is offered at trial and prevent irrelevant and inadmissible evidence from

being offered and potentially influencing a jury.

6

H. Avoiding and Responding to Objections

Preparation, preparation, preparation. Be prepared and anticipate potential objections.

Critically look at your presentation and examine potential objections. If you are prepared to

combat the objection, the Judge will be impressed, and you will have a better chance of

prevailing. Have cases and citations to rules ready.

A trial brief where you address these evidentiary issues can be very helpful to educate the

Judge and to reduce clutter at trial. The less the jury has to watch evidentiary arguments and side

bar conferences the better.

7

Hearsay: Common Pitfalls and How to Avoid Them

Submitted by Robert J. Kasieta and David M. Potteiger

9

HEARSAY: TOP PROBLEMS AND PITFALLSDAVID M. POTTEIGER

A. Commonly overlooked threshold issues:

1. Hearsay is an out of court statement made to prove the truth of the matter asserted in the

statement.

a. A statement is a person’s oral assertion, written assertion, or nonverbal conduct, if the

person intended it as an assertion. FRE 801(a)

1. Question posed by non-testifying co-defendant to arresting officer following

apprehension of co-defendant, defendant, and others, asking how the police found

them so fast, was an “assertion,” under the hearsay rule; question was an

inculpatory assertion of defendant's participation in the crime, and was not designed

to elicit a response. U.S. v. Summers, 414 F.3d 1287 (10th Cir. 2005).

2. Testimony about an individual's pointing to list was not outside hearsay rule merely

because such individual used no words since the pointing was as much a

“communication” as a statement would have been. U.S. v. Ross, 321 F.2d 61 (2d

Cir. 1963).

b. Nonassertive conduct is admissible whether it is verbal or nonverbal. U.S. v. Perez, 658

F.2d 654 (9th Cir. 1981).

1. Evidence that declarant asked “Is this Kenny?” when police officer called telephone

number displayed on pager recovered from stolen car was not hearsay in carjacking

prosecution; declarant's question could not reasonably be construed to be an

intended assertion, either express or implied. U.S. v. Jackson, 88 F.3d 845 (10th

Cir. 1996).

11

2. Markings on map which purportedly traced course of shrimping vessel allegedly

involved in marijuana smuggling conspiracy were not inadmissible hearsay in that

they were not assertions. U. S. v. Groce, 682 F.2d 1359 (11th Cir. 1982).

c. Offered to prove the truth of the matter asserted

1. If significance of out-of-court statement lies solely in fact that it was made, rather

than in veracity of out-of-court declarant's assertion, statement is not hearsay

because it is not offered to prove truth of matter asserted. U.S. v. Cantu, 876 F.2d

1134 (5th Cir. 1989).

2. The significance of the words was that they were said (i.e., that a “verbal act”

occurred) and how they affected McCoy, not the truth-value of what was said.

United States v. Robinzine, 80 F.3d 246 (7th Cir. 1996).

3. A statement offering to sell a product at a particular price is a verbal act, not

hearsay, because the statement itself has legal effect. Cloverland-Green Spring

Dairies, Inc. v. Pennsylvania Milk Marketing Bd., 298 F.3d 201 (3d Cir. 2002).

d. Exclusions from Hearsay

1. On cross-examination

a. Prior inconsistent statements given under penalty of perjury at a trial, hearing,

or other proceeding or in a deposition

b. Prior consistent statement offered to rebut an express or implied charge of

recent fabrication or improper influence/motive

c. Identifies a person as someone previously perceived

1. Statement made by a party opponent

a. Offered against an “opposing” party

12

1. The distinctions between “confessions” and “admissions” are subtle and

questionable and admissions should receive the same cautious treatment

accorded confessions. U.S. v. Robinson, 459 F.2d 1164 (Fed. Cir. 1972).

2. Defendant's confession to police officer, “I know I did it. I know I got to

go down. I hit her in the head with an ax. I didn't mean to hit her in the

head with an ax. I meant to hit [another] in the head with an ax,” was

admissible under exception to hearsay rule for admissions by party

opponent. U.S. v. Penass, 997 F.2d 1227 (7th Cir. 1993).

b. Made by a party in an individual or representative capacity

c. Party adopted or believed to be true

1. A statement is attributable to a person, for purposes of admission of out-

of-court statements as nonhearsay admissions by party opponent, when he

or she stands silent in the face of its utterance if the natural response

would be to deny it if untrue. Rahn v. Hawkins, 464 F.3d 813 (8th Cir.

2006).

a. Made by a person authorized to make a statement on the subject

1. In many instances, out-of-court statement of an agent of a party will be

admissible as a vicarious or representative admission of his principal. U. S.

v. Pena, 527 F.2d 1356 (5th Cir. 1976).

2. Fact of agency may not be proved by alleged agent's extrajudicial

statements. U.S. v. Jones, 766 F.2d 412 (9th Cir. 1985).

3. Proponent of admission by party opponent must establish declarant's

competence; office or plant gossip does not become admissible simply

13

because it is put into mouth of someone whose statements are not subject to

hearsay objection. Morisseau v. DLA Piper, 532 F.Supp.2d 595

(S.D.N.Y.2008).

e. Was made by a co-conspirator in furtherance of a conspiracy

B. Common mistakes attorneys make with respect to hearsay:

1. Testifying Witness as Declarant

a. Prior statement of a testifying witness, when offered for the truth, is hearsay. United

States v. Check, 582 F.2d 668 (2d Cir. 1978).

b. When the Declarant is also a witness, it is difficult to justify classifying as hearsay

evidence of his own prior statements. . . . The courts declare the prior statement to be

hearsay because it was not made under oath, subject to the penalty for perjury or to the

test of cross-examination. To which the answer might well be: “The declarant as a

witness is now under oath and now purports to remember and narrate accurately. The

adversary can now expose every element that may carry a danger of misleading the

trier of fact both in the previous statement and in the present testimony, and the trier

can judge whether both the previous declaration and the present testimony are reliable

in whole or in part.” Edmund Morgan, Hearsay Dangers and the Application of the

Hearsay Concept, 62 Harv. L. Rev. 177, 192-94 (1948).

2. Whether declarant is available/unavailable

a. Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness

if the declarant:

1. is exempted from testifying about the subject matter of the declarant's statement

because the court rules that a privilege applies;

14

2. refuses to testify about the subject matter despite a court order to do so;

3. testifies to not remembering the subject matter;

4. cannot be present or testify at the trial or hearing because of death or a then-existing

infirmity, physical illness, or mental illness; or

5. is absent from the trial or hearing and the statement's proponent has not been able,

by process or other reasonable means, to procure:

a. the declarant's attendance, in the case of a hearsay exception under Rule

804(b)(1) or (6); or

b. the declarant's attendance or testimony, in the case of a hearsay exception under

Rule 804(b)(2), (3), or (4).

b. But this subdivision (a) does not apply if the statement's proponent procured or

wrongfully caused the declarant's unavailability as a witness in order to prevent the

declarant from attending or testifying.

3. When to bring a motion in limine

a. Motions in limine are common vehicles for preliminary rulings on anticipated hearsay

objections.

b. Brom v. Bozell, Jacobs, Kenyon & Eckhardt, Inc., 867 F. Supp. 686, 31 Fed. R. Serv.

3d 244 (N.D. Ill. 1994)(denying motion in limine to exclude hearsay remarks in age

discrimination suit because issue of whether remarks qualify as a party admission “can

only be resolved based upon consideration of the evidence presented at trial”).

4. Failure to sequester witnesses

15

C. Objecting to Hearsay:

1. Should you object? Hearsay usually is weaker than live testimony, and defendants may

prefer the hearsay version rather than making an objection that would compel the

prosecution to produce a stronger witness. United States v. Moon, 512 F.3d 359, 361 (7th

Cir. 2008).

2. Are your objections specific? The Rules do not require that an objection be presented with

a pinpoint citation to the Rules or reference to a relevant precedent. United States v. David,

96 F3d 1477, 1480 (D.C. Cir. 1996); United States v. Whitaker, 127 F3d 595, 601 (7th Cir.

1997). An objection must state the specific grounds on which is based. United States v.

Swan, 486 F3d 260, 264 (7th Cir. 2007) (objection “hearsay” was insufficient to alert the

court to the claim that the speaker was not an agent of defendant).

3. Should I object at sidebar? “The side-bar conference was held off the record. Therefore, if

defense counsel did object, this court would have no way of knowing it.” United States v.

Reed, 227 F3d 763, 769 n.5 (7th Cir. 2000).

D. Providing foundation for exemptions, exceptions, and exclusions

1. Exemptions

a. Prior statements of witnesses

b. Admissions of party opponents

2. Exceptions when regardless of declarant’s availability - Fed. R. Evid. 803

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

16

(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

(4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for--and is reasonably pertinent to--medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

(5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

17

(8) Public Records. A record or statement of a public office if: (A) it sets out:

(i) the office's activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

(10) Absence of a Public Record. Testimony--or a certification under Rule 902--that a diligent search failed to disclose a public record or statement if:

(A) the testimony or certification is admitted to prove that (i) the record or statement does not exist; or (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice--unless the court sets a different time for the notice or the objection.

(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:

(A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it.

(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.

18

(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:

(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;(B) the record is kept in a public office; and (C) a statute authorizes recording documents of that kind in that office.

(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose--unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. A statement in a document that was prepared before January 1, 1998, and whose authenticity is established.

(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit.

(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage--or among a person's associates or in the community--concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.

(20) Reputation Concerning Boundaries or General History. A reputation in a community--arising before the controversy--concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.

19

(22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if: (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea;(B) the conviction was for a crime punishable by death or by imprisonment for more than a year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter:

(A) was essential to the judgment; and (B) could be proved by evidence of reputation.

3. Exceptions when declarant is unavailable – Fed R. Evid. 804

(1) Former Testimony. Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had--or, in a civil case, whose predecessor in interest had--an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

(3) Statement Against Interest. A statement that: (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

20

(4) Statement of Personal or Family History. A statement about: (A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.

4. Reasons why state hearsay rules may differ from federal rules: 1. Minor technical and verbal variations in terminology; 2. Traditional state practice; 3. Taking sides on controversial provisions; and 4. Breaking new ground.

21

How to Get Hearsay, Emails, Business Records, Social Media, and More Into Evidence

Hearsay: Common Pitfalls and How to Avoid Them

(45 minutes)

1

2

23

Common Pitfalls

▪ Not recognizing hearsay

▪ Not using motions in limine/pre‐hearing conferences

▪ Not making the declarant available

Avoiding Pitfalls

▪ Scour all evidence regarding hearsay

▪ Raise all hearsay concerns in motions in limine/pre‐hearing conferences

▪ Put key declarants on your witness list

3

4

24

Using Hearsay for a Non‐Hearsay Purpose

It’s not hearsay

▪ Never say: “It’s not offered for the truth…”

▪ Consider all elements the hearsay might be relevant to prove–Excluding the truth of the matter asserted

5

6

25

Hearsay within Hearsay

Find an exception to each item

▪ Example:

▪ Q: Mr. Jones, what happened next?

▪ A: Mr. Smith told me that the plaintiff said Plaintiff was not hurt.”

▪ Objection: hearsay

7

8

26

Break it down

▪What Plaintiff told Smith

▪ “Plaintiff said plaintiff was not hurt”

▪ Admission by a party opponent

▪ By definition not hearsay– FRE 801(d)(2)(A) Statement by a party

Break it down

▪What Smith told Jones

▪ Is there a non‐hearsay purpose?– To show that Smith knows the witness

– To show that Smith communicated with the witness

– To show that Smith had knowledge of the case

▪ Is there an exception?– Business record? Excited utterance? Present sense impression?

9

10

27

The Residual Exception

Rule 807 – Residual Exception

▪ (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

11

12

28


▪ (1) the statement has equivalent circumstantial guarantees of trustworthiness;

▪ (2) it is offered as evidence of a material fact;

▪ (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

▪ (4) admitting it will best serve the purposes of these rules and the interests of justice.


▪ (b)Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.

13

14

29

Impeaching a Hearsay Declarant

▪ It’s all about the truth of the matter asserted

15

16

30

Hearsay in Medical Records

Rule 803(4) – Exceptions

▪ (4) Statement Made for Medical Diagnosis or Treatment.A statement that:

▪ (A) is made for — and is reasonably pertinent to —medical diagnosis or treatment; and

▪ (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

17

18

31

See also

▪ Rule 803(6) Business records

▪ Rule 803(9) Records of vital statistics

▪ Rule 803(5) Recorded recollection

Hearsay and the Confrontation Clause in Criminal Matters

19

20

32

Sixth Amendment: Confrontation

▪ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Touchstone

▪ Crawford v. Washington, 541 U.S. 36 (2004)

– “testimonial” hearsay statements to police are admitted only if

–Declarant is unavailable

–Defendant has had a meaningful prior opportunity to cross‐examine the accuser

–Traditional hearsay exception don’t apply

–Foundation rules still apply

21

22

33

Thank you for your kind attention.

[email protected]

23

34

Applying Exceptions to the Hearsay Rule: Real-World Examples

Submitted by Brock J. Specht

35

Applying Exceptions to the Hearsay Rule: Real-World Examples

Brock J. Specht

Nichols Kaster, PLLP

Hearsay Recap

37

Hearsay Recap

Rule 801. Definitions That Apply to This Article; Exclusions fromHearsay(a) STATEMENT. ‘‘Statement’’ means a person’s oral assertion, writtenassertion, or nonverbal conduct, if the person intended it as anassertion.(b) DECLARANT. ‘‘Declarant’’ means the person who made thestatement.(c) HEARSAY. ‘‘Hearsay’’ means a statement that: (1) the declarantdoes not make while testifying at the current trial or hearing; and (2) aparty offers in evidence to prove the truth of the matter asserted inthe statement.

Hearsay Recap

Rule 802. The Rule Against HearsayHearsay is not admissible unless any of the following providesotherwise:• a federal statute;• these rules; or• other rules prescribed by the Supreme Court.

38

Hearsay Recap

Other Relevant RulesRule 803: Exceptions to the Rule Against HearsayRule 804: Hearsay Exceptions; Declarant UnavailableRule 807: Residual Exception

Defining Unavailability of a Witness

39


• Rule 804 contains several exceptions to the rule against hearsay incircumstances where the witness is unavailable to testify at trial.

• A witness can be “unavailable” for purposes of the rule for severalreasons, including:

• Asserting a valid privilege• Refusing to testify• Not remembering the subject matter• Is physically absent or unable to testify


• A declarant who dies before being called to testifyis clearly “unavailable” to testify at trial. See Hornev. Owens Corning Fiberglass Corp., 4 F.3d 276, 28283 (4th Cir. 1993)

• A witness can be physically present but still“unavailable” for purposes of the rule:

• Fifth Amendment: In re Inofin Inc., 219F.Supp.3d 265, 271 (D. Mass. 2016).

• Spousal Privilege: Emmi v. DeAngelo, 261F.Supp.3d 556, 560 61 (E.D. Penn. 2017).

• “[F]latly refuses to testify”: Pitre v. Griffin, 2016WL 7442653, *5 (E.D.N.Y. Dec. 26, 2016).

40

Rule 803 Exceptions

Rule 803 Exceptions

• Rule 803 contains twenty three specific exceptionsto the rule against hearsay.

• Statements described by these exceptions “are notexcluded by the rule against hearsay, regardless ofwhether the declarant is available as a witness.”Fed. R. Evid. 803.

41

Rule 803(2) Excited Utterance


“A statement relating to a startling event orcondition, made while the declarant was under thestress of excitement that it caused.” Fed. R. Evid.803(2).

42


“The presence of three conditions are necessary before astatement may qualify as an excited utterance. To qualify,the proponent must establish (1) a startling event, (2) thedeclarant made the statement under the stress of theevent's excitement, and (3) a nexus exists between thecontent of the statement and the event.” United States v.Magnan, 863 F.3d 1284, 1292 (10th Cir. 2017).

“Admissibility hinges on a statement'scontemporaneousness with the excitement a startlingevent causes, not the event itself.” Id. at 1292–93.


Example: United States v. Magnan, 863 F.3d 1284,1292 (10th Cir. 2017).• The defendant was accused of shooting multiplepeople

• One victim, who later died, identified thedefendant as the shooter on “three separateoccasions ranging from approximately two to fivehours after the shooting.”

• On each occasion, there was evidence that thevictim was suffering mental and physical distressrelated to the shooting, supporting admission ofthe statements as excited utterances.

43

Rule 803(1) Present Sense Impression


“A statement describing or explaining an event orcondition, made while or immediately after thedeclarant perceived it.” Fed. R. Evid. 803(1).

44


“Immediately after” can be several minutes after theevent in question:


“Immediately after” can be several minutes after theevent in question:• United States v. Ferber, 966 F. Supp. 90, 99 (D.Mass. 1997) (email sent shortly after meetingoccurred).

45


“Immediately after” can be several minutes after theevent in question:• United States v. Ferber, 966 F. Supp. 90, 99 (D.Mass. 1997) (email sent shortly after meetingoccurred).

• Canatxx Gas Storage Ltd. v. Silverhawk CapitalPartners, LLC, CIV.A. H 06 1330, 2008 WL 1999234,at *14 (S.D. Tex. May 8, 2008) (email memorializingphone call that “just” occurred).


“Immediately after” can be several minutes after theevent in question.But some close temporal connection is necessary:

46


“Immediately after” can be several minutes after theevent in question.But some close temporal connection is necessary:• E.g. Herster v. Bd. of Supervisors, CV 13 139 JJBSCR, 2015 WL 5443673, at *5 (M.D. La. Sept. 15,2015) (Facebook comments and tweets notpresent sense impressions because “it isimpossible to know whether the comments weremade while or immediately after” the eventoccurred).

Rule 803(3) Present State of Mind

47


“A statement of the declarant’s then existing state ofmind (such as motive, intent, or plan) or emotional,sensory, or physical condition (such as mentalfeeling, pain, or bodily health)….” Fed. R. Evid.803(3).


Example: Packgen v. Berry Plastics Corp., 847 F.3d 80(1st Cir. 2017):

48


Example: Packgen v. Berry Plastics Corp., 847 F.3d 80(1st Cir. 2017):• Commercial contract dispute betweenmanufacturer and parts supplier.



• Manufacturer claimed lost sales due to defectiveparts provided by supplier.

49




• President allowed to testify that prior to productfailures, numerous prospective customers told himthey intended to buy the product.




• President allowed to testify that prior to productfailures, numerous prospective customers told himthey intended to buy the product.

• Jury awarded $7.2 million; admission of statementsupheld on appeal under 803(3).

50

Rule 803(5) Recorded Recollection


“A record that:(A) is on a matter that the witness once knew aboutbut now cannot recall well enough to testify fully andaccurately;(B) was made or adopted by the witness when thematter was fresh in the witness’s memory; and(C) accurately reflects the witness’s knowledge.If admitted, the record may be read into evidencebut may be received as an exhibit only if offered byan adverse party.” Fed. R. Evid. 803(5).

51


Example: Equal Empl. Opportunity Commn. v.Staffmark Inv. LLC, 67 F. Supp. 3d 885, 892–93 (N.D.Ill. 2014):


Example: Equal Empl. Opportunity Commn. v.Staffmark Inv. LLC, 67 F. Supp. 3d 885, 892–93 (N.D.Ill. 2014):• Case involved allegation of disability discriminationin employment.

52



• Parties disputed the facts surrounding the plaintiff’stermination from a project.



• Parties disputed the facts surrounding the plaintiff’stermination from a project.

• Contents of emails sent at the time of theemployee’s discharge admissible when senderscould not fully recall the events described in theemails.

53

Rule 803(17) Commercial Publications


“Market quotations, lists, directories, or othercompilations that are generally relied on by thepublic or by persons in particular occupations.” Fed.R. Civ. P. 803(17).

54


“Market quotations, lists, directories, or othercompilations that are generally relied on by thepublic or by persons in particular occupations.” Fed.R. Civ. P. 803(17).

Example: Mortgage Electronic Registration System(“MERS”), an “electronic database that providesinformation for registered mortgages” and is“generally relied upon by the members of [themortgage underwriting] profession.” U.S. Bank, Nat'lAss'n v. UBS Real Estate Sec. Inc., 205 F. Supp. 3d 386,441 (S.D.N.Y. 2016).

Rule 803(18) Learned Writings

55


“A statement contained in a treatise, periodical, orpamphlet if:(A) the statement is called to the attention of anexpert witness on cross examination or relied on bythe expert on direct examination; and(B) the publication is established as a reliableauthority by the expert’s admission or testimony, byanother expert’s testimony, or by judicial notice.If admitted, the statement may be read into evidencebut not received as an exhibit.” Fed. R. Evid. 803(18).


Example: In re C.R. Bard, Inc., MDL. No. 2187, PelvicRepair Sys. Prod. Liab. Litig., 810 F.3d 913, 925 (4thCir. 2016):

56


Example: In re C.R. Bard, Inc., MDL. No. 2187, PelvicRepair Sys. Prod. Liab. Litig., 810 F.3d 913, 925 (4thCir. 2016):• District Court admitted Material Safety Data Sheet(“MSDS”) as a learned “pamphlet” under 803(18).



• On appeal, Fourth Circuit found an abuse ofdiscretion, noting that no expert was asked aboutthe MSDS on cross, and one expert attacked itduring direct exam.

57



• On appeal, Fourth Circuit found an abuse ofdiscretion, noting that no expert was asked aboutthe MSDS on cross, and one expert attacked itduring direct exam.

• Appellate court also noted that no expertestablished the MSDS as a reliable authority.

Rules 803(19) (21) Reputation

58


(19) Reputation Concerning Personal or Family History. Areputation among a person’s family by blood, adoption, ormarriage—or among a person’s associates or in thecommunity—concerning the person’s birth, adoption,legitimacy, ancestry, marriage, divorce, death, relationship byblood, adoption, or marriage, or similar facts of personal orfamily history.

(20) Reputation Concerning Boundaries or General History. Areputation in a community—arising before the controversy—concerning boundaries of land in the community or customsthat affect the land, or concerning general historical eventsimportant to that community, state, or nation.

(21) Reputation Concerning Character. A reputation among aperson’s associates or in the community concerning theperson’s character.


Example: Pueblo of Jemez v. United States, F.Supp.3d, 2018 WL 6002913 (D.N.M. Nov. 15, 2018):

• Dispute between and American Indian tribe and theUnited States regarding the tribe’s right to aboriginaltitle in certain lands.

• After a lengthy analysis of the reputation exceptionsand their application to American Indian oral traditions,the court held that the proffered oral traditionevidence was not generally admissible but could beadmitted for limited purposes strictly tied to theexceptions, including personal and family history,history regarding land use, and personal character

59

Rules 803(22) (23) Judgments


(22) Judgment of a Previous Conviction. Evidence of afinal judgment of conviction if: (A) the judgment wasentered after a trial or guilty plea, but not a nolocontendere plea; (B) the conviction was for a crimepunishable by death or by imprisonment for more than ayear; (C) the evidence is admitted to prove any factessential to the judgment; and (D) when offered by theprosecutor in a criminal case for a purpose other thanimpeachment, the judgment was against the defendant.

(23) Judgments Involving Personal, Family, or GeneralHistory, or a Boundary. A judgment that is admitted toprove a matter of personal, family, or general history, orboundaries, if the matter: (A) was essential to thejudgment; and (B) could be proved by evidence ofreputation.

60


Example: Chartis Prop. Cas. Co. v. Huguely, 243 F.Supp. 3d 615, 626–27 (D. Md. 2017), aff'd 734 F.App'x 184 (4th Cir. 2018):


Example: Chartis Prop. Cas. Co. v. Huguely, 243 F.Supp. 3d 615, 626–27 (D. Md. 2017), aff'd 734 F.App'x 184 (4th Cir. 2018):

“Here, Plaintiff alleges that Defendant's liability in the CivilCase arises out of his commission of the criminal act ofsecond degree murder. It was essential to Defendant'sconviction for second degree murder for the jury to findthat he had committed a malicious killing. The evidence ofhis conviction is being admitted to prove that hecommitted that same criminal act. … Defendant’sconviction is admissible in this court [under Rule803(22)].”

61

Rules 803(8) (10) Public Records


803(8) Public Records.

803(9) Public Records of Vital Statistics.

803(10) Absence of a Public Record.

62


Example: Fritz v. Islamic Republic of Iran, 320 F. Supp.3d 48, 59 n.3 (D.D.C. 2018):


Example: Fritz v. Islamic Republic of Iran, 320 F. Supp.3d 48, 59 n.3 (D.D.C. 2018):• Private action seeking damages for Iran’s allegedinvolvement in the deaths of four Americans.

63


Example: Fritz v. Islamic Republic of Iran, 320 F. Supp.3d 48, 59 n.3 (D.D.C. 2018):• Private action seeking damages for Iran’s allegedinvolvement in the deaths of four Americans.

• Investigative reports created by the U.S. Army andthe Department of Defense regarding Iranianactivity in the Middle East were admissible aspublic records under 803(8).

Rule 804 Exceptions

64

Rule 804(b)(1) Former Testimony


“Testimony that:

(A) was given as a witness at a trial, hearing, orlawful deposition, whether given during the currentproceeding or a different one; and

(B) is now offered against a party who had — or, in acivil case, whose predecessor in interest had — anopportunity and similar motive to develop it bydirect, cross , or redirect examination.”

Fed. R. Evid. 804(b)(1).

65


• This exception clearly includes testimony given indepositions and trials in prior lawsuits.


• This exception clearly includes testimony given indepositions and trials in prior lawsuits.

• Also includes sworn testimony in otherproceedings—for example, an arbitration hearing.See, e.g., Amobi v. Brown, 317 F. Supp. 3d 29, 39(D.D.C. 2018) (“The Court finds that therequirements of Rule 804(b)(1) are satisfied withrespect to Nguyen's prior testimony in thearbitration proceeding, because Nguyen providedrelevant testimony under oath, and was crossexamined….”)

66

Rule 804(b)(2) Dying Declarations


“In a prosecution for homicide or in a civil case, astatement that the declarant, while believing thedeclarant’s death to be imminent, made about itscause or circumstances.”

Fed. R. Evid. 804(b)(2).

67


• The fact that the declarant ultimately diedfollowing the statement is not, standing alone,sufficient to allow admission of a hearsaystatement under this rule—there must be evidencethat declarant “believed his death was imminent”at the time of the statement.

United States v. Shields, 497 F.3d789, 793 (8th Cir. 2007).

Rule 804(b)(4) Personal/Family History

68


“A statement about:(A) the declarant’s own birth, adoption, legitimacy,ancestry, marriage, divorce, relationship by blood,adoption, or marriage, or similar facts of personal orfamily history, even though the declarant had no wayof acquiring personal knowledge about that fact; or(B) another person concerning any of these facts, aswell as death, if the declarant was related to theperson by blood, adoption, or marriage or was sointimately associated with the person’s family thatthe declarant’s information is likely to be accurate.”

Fed. R. Evid. 804(b)(4).


Example:Mwaipungu v. Yates, 2017 WL 386543, *7(E.D. Mo. Jan. 27, 2017):

69


Example:Mwaipungu v. Yates, 2017 WL 386543, *7(E.D. Mo. Jan. 27, 2017):• Plaintiff claimed to be a U.S. citizen by birth.


Example:Mwaipungu v. Yates, 2017 WL 386543, *7(E.D. Mo. Jan. 27, 2017):• Plaintiff claimed to be a U.S. citizen by birth.• In support of his claim, Plaintiff offered affidavit ofhis father, which attested to the fact that Plaintiffwas born in New York City.

70


Example:Mwaipungu v. Yates, 2017 WL 386543, *7(E.D. Mo. Jan. 27, 2017):• Plaintiff claimed to be a U.S. citizen by birth.• In support of his claim, Plaintiff offered affidavit ofhis father, which attested to the fact that Plaintiffwas born in New York City.

• Court found that “Plaintiff’s father is unavailableand the affidavit contains statements of familyhistory pursuant to Federal Rule ofEvidence 804(b)(4).”

Rule 804(b)(3) Decl’n Against Interest

71


“A statement that:(A) a reasonable person in the declarant’s position would havemade only if the person believed it to be true because, whenmade, it was so contrary to the declarant’s proprietary orpecuniary interest or had so great a tendency to invalidate thedeclarant’s claim against someone else or to expose thedeclarant to civil or criminal liability; and(B) is supported by corroborating circumstances that clearlyindicate its trustworthiness, if it is offered in a criminal case asone that tends to expose the declarant to criminal liability.”

Fed. R. Evid. 804(b)(3).


Example: United States v. Ojudun, F.3d , 2019 WL489051, *9 (2d Cir. Feb. 8, 2019):

72


Example: United States v. Ojudun, F.3d , 2019 WL489051, *9 (2d Cir. Feb. 8, 2019):• District court admitted lengthy confession by thedefendant’s alleged co conspirator related to criminalactivity of both.



• On appeal, the First Circuit concluded that “most of [thedeclarant’s] statements, made to a law enforcementofficial, were designed to minimize his involvement in theplanned fraud and to deflect responsibility onto [thedefendant].”

73



• On appeal, the First Circuit concluded that “most of [thedeclarant’s] statements, made to a law enforcementofficial, were designed to minimize his involvement in theplanned fraud and to deflect responsibility onto [thedefendant].”

• Accordingly, these portions of the confession were notstatements against the declarant’s penal interests, butinstead tended to exculpate the declarant from criminalliability.

Rule 804(b)(6) Forfeiture by Wrongdoing

74


“A statement offered against a party that wrongfullycaused—or acquiesced in wrongfully causing—thedeclarant’s unavailability as a witness, and did sointending that result.”

Fed. R. Evid. 804(b)(6).


• This exception applies “only if the defendant has inmind the particular purpose of making the witnessunavailable.” Giles v. California, 554 U.S. 353, 367(2008) (quotation omitted).

• Thus, the exception does not apply in cases where“the defendant had caused a person to be absent,but had not done so to prevent the person fromtestifying—as in the typical murder case involvingaccusatorial statements by the victim.” Id. at 361.

75


Example: United States v. Pratt, F.3d , 2019 WL489053, *7 (4th Cir. Feb 8, 2019):


Example: United States v. Pratt, F.3d , 2019 WL489053, *7 (4th Cir. Feb 8, 2019):• Defendant made threating calls to witness fromjail.

76


Example: United States v. Pratt, F.3d , 2019 WL489053, *7 (4th Cir. Feb 8, 2019):• Defendant made threating calls to witness fromjail.

• Threats suggested “that [the defendant] wouldhurt [the witness] in the future if she disobeyed[him] and testified against him,” which wassufficient to allow for the admission of thewitness’s hearsay statements under a forfeiture bywrongdoing theory.

Rule 801(d) Exclusions

77

Rule 801(d) Exclusions

• Rule 801(d) excludes from the definition of hearsaytwo types of statements, sometimes called“admissions”:

• Under Rule 801(d)(1), the prior testimony of awitness is not hearsay when it is inconsistentwith the witness’s present testimony, or when itis consistent with the present testimony andoffered to rebut a claim of recent fabrication.

• Under Rule 801(d)(2), any prior statement by aparty is not hearsay when it is offered againstthat party.

801(d)(1) Prior Inconsistent Testimony

Example: United States v. Dean, 823 F.3d 422, 427(8th Cir. 2016):

78



• In prosecution for unlawful possession of afirearm, a witness testified in grand juryproceeding that she saw defendant firing a gun.




• At trial, witness testified that she could notremember whether she saw a gun.

79




• At trial, witness testified that she could notremember whether she saw a gun.

• Court held that lack of memory was sufficient tocreate inconsistency, noting that the testimonyneed not be “diametrically opposed … evasiveanswers, inability to recall, silence, or changes ofposition” are generally sufficient.

801(d)(2) Statement of Party Opponent

Broad Exclusion Includes:• Statement made by party• Statement adopted by party• Statement made by authorized spokesperson• Statement made by agent or employee withinthe scope of the relationship

• Statement made by a co conspirator infurtherance of the conspiracy

80


Examples:• United States v. Lewisbey, 843 F.3d 653, 658 (7thCir. 2016) (hearsay objection a “nonstarter”when text messages sent by the defendant were“his own statements and as such are excludedfrom the definition of hearsay by Rule801(d)(2)(A).”).


Examples:• Van Westrienen v. Americontinental CollectionCorp., 94 F. Supp. 2d 1087, 1109 (D. Or. 2000)(rejecting argument that material fromdefendant corporation’s website was hearsay,holding instead that “representations made bydefendants on website are admissible asadmissions of the party opponent under FRE801(d)(2)(A).”).

81


Examples:• United States v. Browne, 834 F.3d 403, 415 (3dCir. 2016) (four Facebook chats “that [thedefendant] himself participated in,” were“properly admitted as admissions by a partyopponent under Rule 801(d)(2)(A).”).


Examples:• Sea Land Serv., Inc. v. Lozen Intern., LLC., 285F.3d 808, 821 (9th Cir. 2002) (employee ofplaintiff “incorporated and adopted thecontents” of an email by forwarding the email tothe defendant with a cover note that“manifested an adoption or belief in the truth”of the information).

• United States v. Safavian, 435 F. Supp. 2d 36,43–44 (D.D.C. 2006) (similar holding).

82

THANK YOU

83

III. Applying Exceptions to the Hearsay Rule: Real-World Examples

Brock J. Specht, Nichols Kaster, PLLP

- - -

Hearsay can be a trial lawyer’s best friend, and worst enemy. It’s one thing to

assemble a great record in discovery; it’s another thing to get that material into evidence

at trial—or to prevent your adversary from getting their evidence admitted. The rule

against hearsay, which generally prohibits the admission into evidence of out-of-court

statements, and the many exceptions to that rule, are powerful tools that every trial

lawyer must master to successfully present their best case to the judge and jury.

The definition of “hearsay” under the Federal Rules of Evidence is cumbersome.

“Hearsay” is “a statement that: (1) the declarant does not make while testifying at the

current trial or hearing and; (2) a party offers in evidence to prove the truth of the matter

asserted in the statement.” Fed. R. Evid. 801(c). For purposes of this definition, a

“declarant” is “the person who made the statement”; and a “statement” is “a person’s oral

assertion, written assertion, or nonverbal conduct, if the person intended it as an

assertion.” Fed. R. Evid. 801(a), (b). However, if the declarant is also a witness, his or her

prior out-of-court statements may not be hearsay if they meet the conditions in Fed. R.

Evid. 801(d)(1), and an opposing party’s out-of-court statements are almost never

hearsay under Fed. R. Evid. 801(d)(2).

The Federal Rules of Evidence provide that hearsay “is not admissible unless one

of the following provides otherwise: a federal statute; these rules; or other rules

prescribed by the Supreme Court.” Fed. R. Evid. 802. The Rules then go on to list

twenty-three specific exceptions to the rule against hearsay that apply regardless of

whether the declarant is available to testify, several additional exceptions that apply when

the declarant is unavailable to testify, and a general “residual exception” that could apply

in any number of circumstances. Fed. R. Civ. P. 803, 804, 807. A comprehensive review

of these exceptions would fill a treatise, but a survey of real-world examples should

provide a helpful starting point for litigators looking to apply the sometimes-abstract

hearsay concepts to actual hearings and trials.

84

A. Defining Unavailability of a Witness

Rule 804 contains several hearsay exceptions that apply only if the declarant is

“unavailable as a witness.” Fed. R. Evid. 804(a). The Rule provides a variety of

circumstances that render a person “unavailable,” including if the person refuses to

testify, claims not to remember the subject matter, or is physically absent or unable to

testify. See id. Most of these conditions are fairly straightforward—for example, a

declarant who has died prior to being called to testify is clearly “unavailable” to provide

live testimony as a witness at trial. See Horne v. Owens-Corning Fiberglass Corp., 4 F.3d

276, 282-83 (4th Cir. 1993). More interesting circumstances arise when a witness is

physically present at the proceeding but refuses to answer questions on a topic. For

example, invoking a testimonial privilege, such at the Fifth Amendment right against

self-incrimination, In re Inofin Inc., 219 F.Supp.3d 265, 271 (D. Mass. 2016), or the

spousal privilege, Emmi v. DeAngelo, 261 F.Supp.3d 556, 560-61 (E.D. Penn. 2017), is

generally sufficient to render a person “unavailable” as a witness. However, the assertion

of a legally valid privilege is not necessary, as any person “who flatly refuses to testify is

deemed unavailable.” Pitre v. Griffin, 2016 WL 7442653, *5 (E.D.N.Y. Dec. 26, 2016).

B. Excited, Contemporaneous or Spontaneous Utterances

Rule 803(2) provides that a “statement relating to a startling event or condition,

made while the declarant was under the stress of excitement that it caused,” is not

excluded by the rule against hearsay. Fed. R. Evid. 803(2). “The presence of three

conditions are necessary before a statement may qualify as an excited utterance. To

qualify, the proponent must establish (1) a startling event, (2) the declarant made the

statement under the stress of the event's excitement, and (3) a nexus exists between the

content of the statement and the event.” United States v. Magnan, 863 F.3d 1284, 1292

(10th Cir. 2017). However, it is not necessary that the statement be made spontaneous

with the events described in the statement. “Admissibility hinges on a statement's

contemporaneousness with the excitement a startling event causes, not the event itself.”

Id. at 1292–93.

85

Magnan provides a good, albeit tragic, example of this exception. In that case, the

defendant was accused of shooting several individuals. Id. at 1287. One of the victims

was heard identifying the defendant as the shooter on “three separate occasions ranging

from approximately two to five hours after the shooting.” Id. Although the statements

were not contemporaneous with the shooting itself, the court found ample evidence to

support their admission as excited utterances given “the horrific nature of the

circumstances [the declarant] personally encountered and her critical medical condition.”

Id. at 1295. Key to the court’s finding of admissibility was evidence that at the time of

each of the statements, the declarant outwardly exhibits signs of mental and physical

distress resulting from her traumatic experience and severe wounds. Id. at 1293 (moaning

in pain, difficult breathing, unstable vital signs), 1294 (unstable vital signs, appeared to

be in shock), 1295 (hospitalized in critical condition, scared and anxious appearance).

C. Present Sense Impressions

Rule 803(1) provides that a “statement describing or explaining an event or

condition, made while or immediately after the declarant perceived it,” is not excluded by

the rule against hearsay. Fed. R. Evid. 803(1). This exception slightly differs from the

excited utterance exception in that the statement offered must “describ[e] or explain[]”

the event in question, rather than merely “relat[e] to” the event, and there is no

requirement that the declarant be “under the stress or excitement” of the event, as there is

in Rule 803(2). The present sense impression exception also requires that the statement

be made “while or immediately after” the event, although several courts have held that

“immediately after” can be many minutes after the event. See United States v. Ferber,

966 F. Supp. 90, 99 (D. Mass. 1997). Thus, emails sent shortly after an event may still

qualify for the present sense impression exception. Id.; see also Canatxx Gas Storage

Ltd. v. Silverhawk Capital Partners, LLC, CIV.A. H-06-1330, 2008 WL 1999234, at *14

(S.D. Tex. May 8, 2008) (holding that because the “email itself states that Blackmon had

“just called.”… [t]he email is admissible as a present-sense impression.”). However,

when dealing with electronic communications, courts typically require some foundation

establishing that the statement was made during or shortly after the event in question

86

before admitting the statement under the present sense impression exception. See, e.g.,

Herster v. Bd. of Supervisors, CV 13-139-JJB-SCR, 2015 WL 5443673, at *5 (M.D. La.

Sept. 15, 2015) (holding that Facebook comments and tweets are inadmissible hearsay

and did not fall under the present sense impression exception because “it is impossible to

know whether the comments were made while or immediately after” the event occurred).

D. Declarations of Present State of Mind

Rule 803(3) provides that a “statement of the declarant’s then-existing state of

mind (such as motive, intent, or plan)” is not excluded by the rule against hearsay. Fed.

R. Evid. 803(3). In the right circumstances, this exception can be powerful. For example,

Packgen v. Berry Plastics Corp., 847 F.3d 80 (1st Cir. 2017), involved a contract dispute

between a manufacturer and a parts supplier where the manufacturer claimed that faulty

parts obtained from the supplier caused its products to fail, which resulted in lost sales to

end-user customers. Id. at 84-86. As proof of the lost sales, the manufacturer’s president

testified that prior to the product’s failure, numerous customers had told him that they

intended to purchase the product in the future. Id. at 84-85. This testimony was admitted

over a hearsay objection, with the district court concluding that the statements qualified

for the present state of mind exception to the rule against hearsay. Id. at 90. The First

Circuit agreed, and upheld a $7.2 million jury verdict that was based in part on the

challenged statements.

E. Past Recollection Recorded

Under Rule 803(5), a written record is not excluded by the rule against hearsay

when it:

(A) is on a matter the witness once knew about but now cannot recall well

enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the

witness’s memory; and

(C) accurately reflects the witness’s knowledge.

87

Fed. R. Civ. P. 803(5). If these conditions are met, the record may be “read into

evidence” but the record itself will not be admitted unless it is “offered by an adverse

party.” Id.

In the context of electronic communication, this has been applied to emails sent

by defendants when the senders thereafter claim they cannot recall the events described

in the emails. See Equal Empl. Opportunity Commn. v. Staffmark Inv. LLC, 67 F. Supp.

3d 885, 892–93 (N.D. Ill. 2014) (holding that emails were admissible under the recorded

recollection exception, as they were on matters that the parties once knew well but could

no longer recall, and were made when the issue was fresh in the mind of the parties.).

However, because this exception requires a showing that the record concerns something

the witness “now cannot recall well enough to testify fully and accurately,” its

applicability tends to be a matter that can be determined only at trial. Skyline Potato Co.,

Inc. v. Hi-Land Potato Co., Inc., CIV 10-0698 JB/RHS, 2013 WL 311846, at *24

(D.N.M. Jan. 18, 2013) (whether one lacks sufficient memory to testify to the emails

contents can only be determined at trial).

F. Learned Writings and Commercial Publications

While general periodicals such as newspapers and magazines are typically

considered to be “rank hearsay that do not fit a hearsay exception,” Am. Home Assur. Co.

v. Greater Omaha Packing Co., 819 F.3d 417, 429 (8th Cir. 2016) (quotation omitted),

Rules 803(17) and 803(18) allow for the admission of statements from certain types of

publications that are established to be authoritative. Specifically, Rule 803(17) allows for

the admission of “[m]arket quotations, lists, directories, or other compilations that are

generally relied on by the public or by persons in particular occupations.” Fed. R. Evid.

803(17). Similarly, Rule 803(18) allows for the admission of statements contained in “a

treatise, periodical, or pamphlet” if there is expert testimony establishing that the

publication is “a reliable authority.” Fed. R. Evid. 803(18).

One example of the type of commercial publications found to be admissible under

Rule 803(17) is the Mortgage Electronic Research System (“MERS”). “MERS is an

electronic database that provides information for registered mortgages.” U.S. Bank, Nat'l

88

Ass'n v. UBS Real Estate Sec. Inc., 205 F. Supp. 3d 386, 441 (S.D.N.Y. 2016). It is

“available to the general public” and “generally relied upon by the members of [the

mortgage underwriting] profession.” Id.

The use of learned writings is more complicated. Even when admissible, the

statement “may be read into evidence but not received as an exhibit.” Fed. R. Evid.

803(18). But before that happens, the statement must first be “called to the attention of an

expert witness on cross-examination or relied on by the expert on direct examination,”

and the publication must be “established as a reliable authority” either by expert

testimony or by judicial notice. Fed. R. Civ. P. 803(18). If these requirements are not

followed, the learned writing is not admissible. See In re C.R. Bard, Inc., MDL. No. 2187,

Pelvic Repair Sys. Prod. Liab. Litig., 810 F.3d 913, 925 (4th Cir. 2016) (“[W]e find that

the district court abused its discretion by admitting it under Rule 803(18) because the

reliability of the evidence was not established according to the rule's requirements.”).

Moreover, although a court can take judicial notice of the fact that a publication is a

reliable authority in lieu of expert testimony on that issue, in practice courts may be

hesitant to do so. See, e.g., Milward v. Acuity Specialty Prod. Grp., Inc., 969 F.Supp.2d

101, 113 (D. Mass. 2013) (refusing to take judicial notice of a publication’s reliability in

the absence of expert assistance), aff'd sub nom. Milward v. Rust-Oleum Corp., 820 F.3d

469 (1st Cir. 2016).

G. Judgment and Reputation

Rules 803(19), (20), and (21) contain exceptions for certain types of “reputation”

evidence, including matters related to personal or family history (paragraph 19),

boundaries of land or general historical events (paragraph 20), and personal character

(paragraph 21). These exceptions are rarely addressed in modern decisions, but there is

an extensive discussion of them in Pueblo of Jemez v. United States, --- F.Supp.3d ----,

2018 WL 6002913 (D.N.M. Nov. 15, 2018), where the court applied the reputation

exceptions to trial testimony concerning American Indian oral traditions. The case

involved a dispute between and American Indian tribe and the United States regarding

the tribe’s right to aboriginal title in certain lands. After a lengthy analysis of the

89

reputation exceptions and their application to American Indian oral traditions, the court

held that the proffered oral tradition evidence was not generally admissible but could be

admitted for limited purposes strictly tied to the exceptions, including personal and

family history, history regarding land use, and personal character. *23-24.

Rules 803(22) & (23) allow for the admission of certain evidence related to

judgments. Rule 803(22) relates to judgments of criminal convictions, and requires that

the judgment of conviction result from a trial or guilty plea, be for a crime punishable by

death or imprisonment for more than one year, and be offered to prove a fact essential to

the judgment. Among other things, this exception is a useful tool in a civil tort action

where the defendant has been convicted of a crime arising from the same tortious

conduct. The reasoning is as follows:

Here, Plaintiff alleges that Defendant's liability in the Civil Case arises out of his commission of the criminal act of second degree murder. It was essential to Defendant's conviction for second degree murder for the jury to find that he had committed a malicious killing. The evidence of his conviction is being admitted to prove that he committed that same criminal act. … Defendant’s conviction is admissible in this court [under Rule 803(22)].

Chartis Prop. Cas. Co. v. Huguely, 243 F. Supp. 3d 615, 626–27 (D. Md. 2017), aff'd sub

nom. Love v. Chartis Prop. Cas. Co., 734 F. App'x 184 (4th Cir. 2018).

Rule 803(23), on the other hand, goes beyond criminal convictions and allows the

admission of judgments “to prove a matter of personal, family, or general history, or

boundaries” if the matter was “essential to the judgment” and could be “proved by

evidence of reputation.” Fed. R. Evid. 803(23). Examples of this exception in modern

caselaw are virtually nonexistent, and it has been described as “quite possibly the most

obscure hearsay exception in the federal rules.” 30B FEDERAL PRACTICE & PROCEDURE §

6953 (2018 ed.). “One is hard pressed to find an example of the successful invocation of

Rule 803(23) in any published opinion of the federal courts.” Id.

H. Child Statements, Police Reports, Public Records and Reports

Rules 803(8) – (10) create broad leeway for the admission of statements contained

in—or absent from—public records and reports. Specifically, Rule 803(8) allows for the

90

admission of statements in public records and reports that are generated as part of the

office’s legal duties, so long as the opponent has not shown a “lack of trustworthiness” in

the record. Fed. R. Evid. 803(8). Thus, in private civil litigation against the government

of Iran seeking to hold Iran liable for the deaths of several Americans, the court admitted

statements from investigative reports created by the U.S. Army and Department of

Defense under Rule 803(8). Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 59 n.3

(D.D.C. 2018). Importantly, however, “in a criminal case, a matter observed by law-

enforcement personnel” (i.e. statements in police reports) are explicitly not admissible

under this rule. Id.

The hearsay statements of children and persons with certain developmental

disabilities are frequently admitted under Rule 807’s “residual exception” when those

statements relate to abuse suffered by the declarant. See, e.g., Doe. v. Darien Bd. of

Educ., 110 F.Supp.3d 386, 401 (D. Conn. 2015). This practice is common enough that

some state rules of evidence have been amended to include specific hearsay exceptions

explicitly allowing for the admission of such statements. See, e.g., Fla. Stat. § 90.803(23).

I. Former Testimony and Dying Declarations

Rules 804(b)(1) and (b)(2) are two rules that apply only when the declarant is

unavailable to testify in the current proceeding. Rule 804(b)(1) allows for the admission

of testimony of a witness in a prior proceeding when it is offered against a party who had

an opportunity to question the witness in that proceeding. Prior proceedings clearly

include depositions and trials in prior lawsuits, but also include depositions given during

arbitration proceedings, which can be used in subsequent civil litigation provided the

other requirements of the rule are satisfied. See Amobi v. Brown, 317 F. Supp. 3d 29, 39

(D.D.C. 2018) (“The Court finds that the requirements of Rule 804(b)(1) are satisfied

with respect to Nguyen's prior testimony in the arbitration proceeding, because Nguyen

provided relevant testimony under oath, and was cross-examined….”).

Rule 804(b)(2) is the “dying declaration” exception, which allows for the

admission of statements made by an unavailable witness “[i]n a prosecution for homicide

or in a civil case, a statement that the declarant, while believing the declarant’s death to

91

be imminent, made about its cause or circumstances.” The fact that the declarant

ultimately died following the statement is not, standing alone, sufficient to allow

admission of a hearsay statement under this rule—there must be evidence that declarant

“believed his death was imminent” at the time of the statement. United States v. Shields,

497 F.3d 789, 793 (8th Cir. 2007).

J. Statements of Personal or Family History

Another exception that applies only when the declarant is unavailable as a witness

is a statement of personal or family history. This exception includes statements about “the

declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by

blood, adoption, or marriage, or similar facts of personal or family history” as well as

statements about “another person concerning any of these facts, as well as death, if the

declarant was related to the person by blood, adoption, or marriage or was so intimately

associated with the person’s family that the declarant’s information is likely to be

accurate.” Fed. R. Evid. 804(b)(4).

Recent cases involving this exception tend to involve immigration matters. For

example, in Bermea v. Limon, the plaintiff sought a declaration that he was a United

States citizen under a statute granting citizenship to children of United States citizens “if

the parent was physically present in the United States for ten years before the person’s

birth, five of which must have been after the parent’s fourteenth birthday.” No. 1:15-CV-

097, 2018 WL 4103011, at *1 (S.D. Tex. July 17, 2018) (citing 8 U.S.C. § 1401(a)(7)).

The plaintiff claimed that his mother satisfied these requirements, but she was

unavailable to testify so he offered an out-of-court statement to prove these facts, arguing

that it was an admissible statement of personal or family history under Fed. R. Evid.

804(b)(4). Id. The court found the exception inapplicable, noting that the statement

regarding the history of the plaintiff’s mother’s place of residence “is not of the kind that

falls within the ambit of the rule.” Id. at *2. In contrast, in Mwaipungu v. Yates, the court

admitted an affidavit from the plaintiff’s father stating that the plaintiff was born in the

United States, finding that “Plaintiff’s father is unavailable and the affidavit contains

92

statements of family history pursuant to Federal Rule of Evidence 804(b)(4).” No. 4:14-

CV-1996 JAR, 2017 WL 386543, at *7 (E.D. Mo. Jan. 27, 2017).

K. Declarations Against Interest

Rule 804(b)(3) provides an exception for statements of an unavailable declarant

that are “contrary to the declarant’s proprietary or pecuniary interest” or would have a

tendency “to expose the declarant to civil or criminal liability.” In addition, if the

statement is offered in a criminal case and could expose the declarant to criminal liability,

the statement must be “supported by corroborating circumstances that clearly indicate its

trustworthiness” Fed. R. Evid. 804(b)(3)(B). This exception can be confusing, even for

experienced trial judges. One example of such potential confusion is found in United

States v. Ojudun, --- F.3d ----, 2019 WL 489051, *9 (2d Cir. Feb. 8, 2019). In that case,

the trial court admitted under Rule 804(b)(3) a lengthy confession by the defendant’s

alleged co-conspirator related to criminal activity that the declarant and defendant jointly

participated in. Id. On appeal, the First Circuit concluded that “most of [the declarant’s]

statements, made to a law enforcement official, were designed to minimize his

involvement in the planned fraud and to deflect responsibility onto [the defendant].” Id.

Accordingly, these portions of the confession were not statements against the declarant’s

penal interests, but instead tended to exculpate the declarant from criminal liability. Id.

Further, to the extent the statements did tend to incriminate the declarant, the appellate

court found nothing in the record indicating “that the district court made any inquiry as to

whether there were corroborating circumstances” as required under 804(b)(3)(B). Id.

Given the importance of the statements to the defendant’s conviction, the First Circuit

vacated the judgment and remanded the matter for further proceedings. Id.

L. Forfeiture by Wrongdoing

A party who “wrongfully caused—or acquiesced in wrongfully causing—the

declarant’s unavailability as a witness, and did so intending that result,” forfeits the right

to object to the admission of the declarant’s statements on hearsay grounds. Fed. R. Evid.

804(b)(6). This exception applies “only if the defendant has in mind the particular

purpose of making the witness unavailable.” Giles v. California, 554 U.S. 353, 367

93

(2008) (quotation omitted). Thus, the exception does not apply in cases where “the

defendant had caused a person to be absent, but had not done so to prevent the person

from testifying—as in the typical murder case involving accusatorial statements by the

victim.” Id. at 361. In contrast, United States v. Pratt, involved threatening phone calls

from the defendant that suggested “that [the defendant] would hurt [the witness] in the

future if she disobeyed [him] and testified against him,” which was sufficient to allow for

the admission of the witness’s hearsay statements under a forfeiture by wrongdoing

theory. --- F.3d ----, 2019 WL 489053, *7 (4th Cir. Feb. 8, 2019).

M. Admissions Exceptions

Finally, Rule 801(d) contains two important categories of statements—in the form

of admissions by either witnesses or opposing parties—that under the rule are defined as

“not hearsay.” First, under 801(d)(1), a witness’s prior testimony given under oath is not

hearsay to the extent the prior testimony is either inconsistent with the witness’s present

testimony or, if the testimony is consistent, is offered (i) to rebut a charge that the witness

recently fabricated the testimony or (ii) to rehabilitate the witness’s credibility when

attacked on another ground. This convoluted rule is most commonly utilized when a

witness provides testimony on direct examination that is inconsistent with prior sworn

testimony, such as testimony taken in a deposition or grand jury proceeding. In such

cases, the subsequent inconsistent testimony need not be “diametrically opposed” to the

former testimony in order for the former testimony to be admissible; “evasive

answers, inability to recall, silence, or changes of position” are generally sufficient.

United States v. Dean, 823 F.3d 422, 427 (8th Cir. 2016) (quotation and emphasis

omitted).

The second type of admission that is not hearsay is a statement by a party

opponent under Rule 801(d)(2). This rule covers out-of-court statements offered against

parties where the statements were made by individual litigants or their representatives in

an extraordinarily broad fashion, including a statement that:

was made by the party in an individual or representative capacity;

is one the party manifested that it adopted or believed to be true;

94

was made by a person whom the party authorized to make a statement on the

subject;

was made by the party’s agent or employee on a matter within the scope of

that relationship and while it existed; or

was made by the party’s coconspirator during and in furtherance of the

conspiracy.

Fed. R. Evid. 801(d)(2). Additionally, although lawyers and judges often describe such

statements as “admissions,” this description is not entirely accurate. “The term

‘admissions’ is confusing because not all statements covered by the exclusion are

admissions in the colloquial sense—a statement can be within the exclusion even if it

‘admitted’ nothing and was not against the party’s interest when made.” Fed. R. Evid.

801 (2011 committee notes).

Application of this rule is fairly straightforward when dealing with statements

made by a party or, for corporate entities, officers and official spokespersons for the

entity that would typically speak on the entity’s behalf. See, e.g., United States v.

Lewisbey, 843 F.3d 653, 658 (7th Cir. 2016) (hearsay objection a “nonstarter” when text

messages sent by the defendant were “his own statements and as such are excluded from

the definition of hearsay by Rule 801(d)(2)(A).”); United States v. Browne, 834 F.3d 403,

415 (3d Cir. 2016) (four Facebook chats “that [the defendant] himself participated in,”

were “properly admitted as admissions by a party opponent under Rule 801(d)(2)(A).”);

Van Westrienen v. Americontinental Collection Corp., 94 F. Supp. 2d 1087, 1109 (D. Or.

2000) (rejecting argument that material from defendant corporation’s website was

hearsay, holding instead that “representations made by defendants on website are

admissible as admissions of the party-opponent under FRE 801(d)(2)(A).”); Sea-Land

Serv., Inc. v. Lozen Intern., LLC., 285 F.3d 808, 821 (9th Cir. 2002) (employee of

plaintiff “incorporated and adopted the contents” of an email by forwarding the email to

the defendant with a cover note that “manifested an adoption or belief in the truth” of the

information); United States v. Safavian, 435 F. Supp. 2d 36, 43–44 (D.D.C. 2006)

(similar holding).

95

Trickier cases deal with statements that a party may have “adopted” or were

arguably made by a party’s agent. For example, courts are split on whether statements

made by a party’s retained expert are attributable to the party and therefore admissible

under this rule. Federal Circuit Court Judge William Bryson, sitting by designation in the

District of Delaware, recently conducted an extensive overview of this split in authority,

with an exhaustive list of cases finding that prior statements by experts are, or are not,

admissible against a party in subsequent litigation. See Pernix Ireland Pain Dac v.

Alvogen Malta Operations Ltd., 316 F. Supp. 3d 816, 819 (D. Del. 2018) (citing cases

and noting that “[t]here is substantial case law dealing with the admissibility under Rule

801(d)(2) of the testimony, depositions, or reports of an expert against the party that

retained the expert. The case law on this subject is mixed, however, with courts reaching

different results under a variety of different factual circumstances”). After an extensive

analysis, Judge Bryson concluded that the statements at issue in that case were not

admissible under applicable Third Circuit law. Id. at 828.

96

Getting Business Records Admitted

Submitted by Sean Antone Hunt

97

GETTING BUSINESS RECORDS ADMITTED

SEAN ANTONE HUNT, ESQ.

THE HUNT LAW FIRM

TRUE IMPEDIMENT TO BUSINESS RECORDS

RECORDS HEARSAYRule 802

1

2

99

RULE 803 EXCEPTIONS

Regular Conducted Activity

RECORDED RECOLLECTION

Establish Witness’ Lack of Memory

Identify and Authenticate Statement

Read the Statement to the Judge/Jury

3

4

100

REGULARLY CONDUCTED ACTIVITY

Made at or near the Time of the Event

Kept in the Ordinary Course

Regular Practice to Make Record

APPLYING THE EXCEPTION

Admissible

Trustworthy

Records Exception

5

6

101

SIGNS OF UNTRUSTWORTHINESS

• Person with knowledge• Complete and IntegratedTrustworthy

• Person with NO knowledge• Too much left outUntrustworthy

AMBIGUOUS, INACCURATE OR INCOMPLETE RECORDS

Be Aware

Translate

Explain

Correct

7

8

102

SELF-AUTHENTICATING BUSINESS RECORDS

Certified Records

Data from Electronics

Electronic Process

Public Records Acknowledged Documents

GETTING BUSINESS RECORDS ADMITTED

SEAN ANTONE HUNT, ESQ.

9

10

103

IV. Getting Business Records Admitted

A. How to Lay a Foundation for a Business Record

ny discussion of the admission of evidence needs to start with Rule 402 of the

Tennessee Rules of Evidence which provides that “Relevant evidence is

admissible unless any of the following provides otherwise: the United States

Constitution; a federal statute; these rules; or other rules prescribed by the Supreme

Court. Irrelevant evidence is not admissible.” Fed. R. Evid. 402. The basic import of

this rule is that anything that is likely to have a bearing on the issues is admissible unless

something makes it inadmissible. Generally, that is not the way that most practitioners

view the rules. Instead, we often look for ways that evidence should be admitted or could

be admitted rather than assuming that it is admissible unless something provides that it is

not. In principle, this means that establishing the foundation for your evidence is highly

important and an art form that we should all practice.

Keep in mind that the true impediment to business records, in most situations, is

going to be the hearsay rule. That is, most business records will fall within the definition

of hearsay found at Rule 801. So, the necessity is to establish that your business records

fall within one of the exceptions to the hearsay rule found under Rule 803, or some other

rule. Most commonly, however, most practitioners are attempting to get their business

records into evidence through Rule 803(5), 803(6), 803(8) 803(15), 803(16), 803(22)

and/or 803(23). These rules provide as follows:

The following are not excluded by the rule against hearsay, regardless of whether

the declarant is available as a witness:

* * * *

(5) Recorded Recollection. A record that:

A

104

(A) is on a matter the witness once knew about but now cannot

recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh

in the witness's memory; and

(C) accurately reflects the witness's knowledge.

If admitted, the record may be read into evidence but may be

received as an exhibit only if offered by an adverse party.

(6) Records of a Regularly Conducted Activity. A record of an

act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by--or from

information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted

activity of a business, organization, occupation, or calling, whether

or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification that

complies with Rule 902(11) or (12) or with a statute permitting

certification; and

(E) the opponent does not show that the source of information or

the method or circumstances of preparation indicate a lack of

trustworthiness.

* * * *

105

(8) Public Records. A record or statement of a public office if:

(A) it sets out:

(i) the office's activities;

(ii) a matter observed while under a legal duty to report, but not

including, in a criminal case, a matter observed by law-

enforcement personnel; or

(iii) in a civil case or against the government in a criminal case,

factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or

other circumstances indicate a lack of trustworthiness.

* * * *

(15) Statements in Documents That Affect an Interest in

Property. A statement contained in a document that purports to

establish or affect an interest in property if the matter stated was

relevant to the document's purpose--unless later dealings with the

property are inconsistent with the truth of the statement or the

purport of the document.

(16) Statements in Ancient Documents. A statement in a

document that was prepared before January 1, 1998, and whose

authenticity is established.

* * * *

(22) Judgment of a Previous Conviction. Evidence of a final

judgment of conviction if:

106

(A) the judgment was entered after a trial or guilty plea, but not a

nolo contendere plea;

(B) the conviction was for a crime punishable by death or by

imprisonment for more than a year;

(C) the evidence is admitted to prove any fact essential to the

judgment; and

(D) when offered by the prosecutor in a criminal case for a purpose

other than impeachment, the judgment was against the defendant.

The pendency of an appeal may be shown but does not affect

admissibility.

(23) Judgments Involving Personal, Family, or General

History, or a Boundary. A judgment that is admitted to prove a

matter of personal, family, or general history, or boundaries, if the

matter:

(A) was essential to the judgment; and

(B) could be proved by evidence of reputation.

Fed. R. Evid. 803. But, each of these exceptions comes with its own problems and

controversies. Below, we talk about a couple of them.

1. Recorded Recollection

The notes to Paragraph 5 of the Federal Rules of Evidence provides us this

discussion of the principal controversy regarding a record of a person’s recorded

recollection. “The principal controversy attending the exception has centered, not upon

107

the propriety of the exception itself, but upon the question [of] whether a preliminary

requirement of impaired memory on the part of the witness should be imposed. The

authorities are divided. If regard be had only to the accuracy of the evidence, admittedly

impairment of the memory of the witness adds nothing to it and should not be required.

McCormick § 277, p. 593; 3 Wigmore § 738, p. 76; Jordan v. People, 151 Colo. 133, 376

P.2d 699 (1962), cert. denied 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d 699; Hall v. State,

223 Md. 158, 162 A.2d 751 (1960); State v. Bindhammer, 44 N.J. 372, 209 A.2d 124

(1965). Nevertheless, the absence of the requirement, it is believed, would encourage the

use of statements carefully prepared for purposes of litigation under the supervision of

attorneys, investigators, or claim adjusters. Hence the example includes a requirement

that the witness not have ‘sufficient recollection to enable him to testify fully and

accurately.’”

As stated, one of the first requirements of the rule is that the witness lacks

sufficient memory to “testify fully and accurately” to the matter at hand. Most

practitioners have essentially utilized this particular record concept to simply refresh the

witness’ memory. But the exception, under the federal rules, allows for the record to be

read into evidence, even if it is not received as a document. Nevertheless, the problem

with allowing the document to be read into evidence is the possibility that the mere fact

that a document was created and read to the jury might provide it more weight and

credibility then the testimony would have received if it simply come from the witness’

testimony on examination. With this thought in mind, the simple requirement that the

witness lacks sufficient memory to testify fully and accurately to the information in the

record does not discourage the use of “statements carefully prepared for purposes of

litigation under the supervision of attorneys, investigators, or claims adjusters.” Certainly,

a witness could be coached, inappropriately, of course, to indicate that they lack full and

accurate information on a given subject to allow the statement to be read into evidence.

Nevertheless, the steps to get in this particular piece of evidence are simple:

108

Question the witness as to the matter and subject of the statement;

Establish that the witness does not have sufficient memory to testify fully and

accurately to the subject matter of the statement; and

Identify and authenticate the statement as required by the rule and either read the

statement to the jury as the questioning attorney or have the witness read the

statement themselves.

2. Records of a Regularly Conducted Activity

While this is the most common and most widely used business records exception,

it, too is not without some criticisms and shortcomings. One problem with this rule is the

same as the documents above. The concern is that these records will be carefully

prepared for the purposes of litigation under the supervision of attorneys, investigators or

claim adjusters. Then, the admissibility of these records would be sought by practitioners

under the “business records exception.” Often this is the case within businesses who have

common and anticipated exposure to litigation in certain areas of their practice. For

Witness Lacks Memory

Authenticate Statement

Read to Judge/Jury

109

example, internal memos and evaluations of products could be carefully scripted to avoid

later litigation associated with a products liability case dealing with the product.

Therefore, for example, in the state of Tennessee, the Tennessee version of this rule also

has a requirement that there be a “business duty to record or transmit” the subject

information. The advisory comment on the Tennessee rule notes that “without that duty, a

business record with lack the trustworthiness necessary to carve out a hearsay exception.”

Nevertheless, under the Federal Rules of Evidence the practitioner need only

establish the following:

The record was made at or near the time of the event by someone with

knowledge;

The record was kept in the ordinary course of business; and

It was the regular practice of the business to make this record.

At Time of the Event

Kept in Ordinary Course

Regular Practice to Make

110

B. Applying the Business Records Exception

ssuming that even the proper foundation has been laid for a business record

under the Rule 803 exception, the inquiry does not stop there for the opposing

party, that is. Most of these hearsay exceptions, still come with the caveat that

if there is a genuine issue as to the lack of trustworthiness of a particular record, the

record may be challenged. For example, under Rule 803(6)(E) of the Federal Rules of

Evidence, the rule makes clear that for the rule to apply there must not be evidence from

the opponent that the “source of information or the method or circumstances of

preparation indicate a lack of trustworthiness” of the subject record. Thus, in theory a

record made by a business is admissible, but its admissibility is not guaranteed. In that

circumstance, both the opponent and the proponent should be aware of the circumstances

under which the record was prepared.

Let’s take, for example, a common business record for most businesses, an

accident report or a first report of work injury. These forms, usually held or kept by the

Admissible

Trustworthy

Records Exception

A

111

business to record accidents and/or injuries for the purposes of federal reporting,

Worker’s Compensation, and more, come with a business duty to make and keep the

record. But, by their very nature, they also come with the possibility of some admitted

liability. Thus, the impetus to create a record that is overly favorable to the business when

preparing this record is not only present, but of paramount concern. In that situation,

witness statements and/or circumstances recorded or not recorded could easily be

manipulated by the person involved with preparing the record to make sure that the

record is most favorable to the business.

In those circumstances, it may take extrinsic evidence to show that the record

itself is untrustworthy. But the practitioner should be wary and not automatically accept

such a record. Instead, question the witness who offers the record about its authenticity,

about the author of the record, and about additional information that may have been left

out of the record. In other words, who decided what information should be included and

excluded from the record. Obviously, numerous exclusions of relevant information make

the record more susceptible to suspicion and possibly untrustworthiness.

• Person with knowledge

• Complete & IntegrateTrustworthy

• Person with no knowledge

• Too much left outUntrustworthy

112

C. Handling Ambiguous, Inaccurate or Incomplete Records

bviously, since the lack of trustworthiness is a hallmark to getting most of

your business records into evidence through the business records exception,

identifying and determining ambiguous, inaccurate or incomplete records

means that there will be problems with the admissibility of those records. Putting aside,

for the moment, any issues regarding spoliation, which might also provide the proponent

of certain records problems, there is the obvious problem of simply being unable to get

the pertinent business records admitted. While there are no catchall concepts for dealing

with problem records, there are a few key components that the average practitioner

should be placing within their toolkit. Here are some concepts.

Make sure to be aware of any ambiguities, inaccuracy or missing components

from your records. This means review the records carefully and compare them

with other copies of records for any inconsistencies. The last thing any

practitioner wants is to be the only one, in the room, who does not know that there

is a difference in the records.

Be prepared to have witnesses explain in ambiguous, inaccurate or incomplete

information. For example, doctors who consistently, within their medical records,

go back and forth between left and right when talking about parts of the body,

need to explain why their records are not consistent about which side of the body

is being treated. If the explanation is inadequate, further witnesses and

information should be sought.

Have witnesses translate and/or interpret records that appear to be ambiguous

from the very beginning. Do not wait until cross-examination and the need to

rehabilitate a witness or a record before asking about information that’s

ambiguous. Remember, ambiguity simply means that the language use is capable

of two perfectly reasonable interpretations. The English language is fraught with

ambiguity. Therefore, there is no shame in having an ambiguous record. The

O

113

average practitioner just needs to recognize it and have the record properly

interpreted from the beginning.

If a record can be amended or corrected, have the record amended and corrected

prior to beginning the litigation or, at least, prior to providing the record to the

opposing party. In that, however, do not make the mistake of withholding the

inaccurate record that has been corrected. That simply gives more credibility to

the inaccuracies and makes it more likely that the record will be considered

untrustworthy. Instead, be candid and upfront about the inaccuracy and the

correction of the same.

Be Aware

Translate

Explain

Correct

114

D. Self-Authenticating Business Records

emember, under rule 901, to satisfy the requirement of authentication of a

record, or any other item of evidence for that matter, the proponent must

produce evidence sufficient to support a finding that the item “is what the

proponent claims it is.” This can be accomplished in several ways including testimony of

witness with knowledge, non-expert opinion regarding handwriting, comparison by an

expert witness or the trier of fact and more. But, under rule 902, certain records are self-

authenticating. The practitioner should be familiar with all of these self-authenticating

records as they provide an opportunity to easily obtained the admission of a record.

Under the federal rules, the following categories of records are self-

authenticating:

Domestic Public Documents That Are Sealed and Signed

Domestic Public Documents That Are Not Sealed but Are Signed and Certified

Foreign Public Documents

Certified Copies of Public Records

Official Publications

Newspapers and Periodicals

Trade Inscriptions and the like

Acknowledged Documents

Commercial Paper and Related Documents

Presumptions under Federal Statute

Certified Domestic Records of Regularly Conducted Activity

Certified Foreign Records of the Regularly Conducted Activity

Certified Records Generated by an Electronic Process or System

Certified Data Copied from an Electronic Device, Storage Medium, or File

R

115

Remember, however, this rule simply negates the necessity of authentication of a

record, in other words, having the witness testified that it is what it is. It does not,

however, satisfy the requirements of, for example, the hearsay rule. But, note that a

certification of a record under this rule allows the practitioner to take a business record

with the certification of the custodian, or another qualified person, an offer that into

evidence without more. The obvious import of this is to prevent the parties from having

to take of deposition of a records custodian simply for the purposes of offering a business

record. On the other hand, note that the rule does indicate that the proponent must give an

adverse party reasonable written notice of the intent to offer the record and make the

record available for inspection. This allows, as we mentioned above, the opposing party

to determine if there is any indication of untrustworthiness associated with the record. It

also allows them to be prepared to make that objection. The rule does not specify how an

objection should be made. But, obviously a motion in limine would satisfy this

requirement.

Take notice of the comment to Paragraph 14 of Rule 902 of the Federal Rules of

Evidence which provides as follows:

Today, data copied from electronic devices, storage media,

and electronic files are ordinarily authenticated by “hash

value.” A hash value is a number that is often represented as

a sequence of characters and is produced by an algorithm

based upon the digital contents of a drive, medium, or file.

If the hash values for the original and copy are different, then

the copy is not identical to the original. If the hash values for

the original and copy are the same, it is highly improbable

that the original and copy are not identical. Thus, identical

hash values for the original and copy reliably attest to the

fact that they are exact duplicates. This amendment allows

self-authentication by a certification of a qualified person

116

that she checked the hash value of the proffered item and that

it was identical to the original. The rule is flexible enough to

allow certifications through processes other than comparison

of hash value, including by other reliable means of

identification provided by future technology.

Fed. R. Evid. 902 (Note to Paragraph 14). This provides the reality of why certain

electronic data is considered to be self-authenticating. It is because that data, when it has

been changed or altered, is easier to recognize by persons with knowledge of the

technology. Thus, the committee determined that the expense and inconvenience of

producing an authenticating witness for this evidence was often unnecessary. As a result,

this rule was promulgated in 2017.

117

Texts, Social Media, Emails and More:

Getting Yours in and Keeping Theirs Out

Submitted by Sean Antone Hunt

119

TEXTS, SOCIAL MEDIA, EMAILS AND MORE

GETTING YOURS IN AND KEEPING THEIRS OUT

COLLECTION AND PRESERVATION

Authenticity

Program

Data Access

• Consider Differing Data Types• Tools for Access Data• Understanding Data• Authenticating Data

1

2

121

SELF HELP VERSUS EXPERT HELP

Cheaper Costly

WHAT’S WRONG WITH THIS PICTURE?

3

4

122

AUTHENTICATING YOUR EVIDENCE

Social media

VideoTexts

EVIDENCE RULE 901 IS YOUR FRIEND

5

6

123

KEEPING OUT OPPONENT’S EVIDENCE

Look for Embedded HearsayLook for Embedded Hearsay Look for AlterationsLook for Alterations

TEXTS, SOCIAL MEDIA, EMAILS…NOTHING NEW!

7

8

124

V. Texts,SocialMedia,EmailsandMore:GettingYoursin

andKeepingTheirsOut

A. Collection and Preservation – How to Safeguard Authenticity

bviously, the best way to obtain data from the opposing party is to utilize a data

retrieval specialist. There are many companies that actually perform this

particular service and will provide you with information in a format that you can

easily evaluate and use. But, if your case does not justify the expense or, for some reason,

you are just determined to do it yourself, here are some considerations for your quest.

1. Types of Data, Production Specifications and Formats - in Detail

Unfortunately, the types of data and the format of the data will vary quite a bit

depending upon the device utilized to create the data. For example, photographs on a

computer may have photographs in one of the 3 common photographic formats, i.e.,

JPEG, PNG or GIF. But, there are numerous other formats that may be associated with a

particular program. Moreover, photographs on a tablet, iPhone or android phone may

have a completely different format as well. The reason for this is that each of these

programs is utilizing its own coding system to encode the photograph and utilize space on

its internal storage. While there are some commonalities and standards, manufacturers of

these devices and their software coders don’t always feel obliged to utilize the customary

format. Thus, when you go looking for this type of information, be prepared to look for

various formats. Here are some of the common formats that you might find for

photographs/images alone:

O

125

Name Common Filename

Extensions

Description

Joint

Photographic

Experts Group

(JPEG)

.jpg, .jpeg, .jpe, .jif, .jfif,

.jfi

A commonly used method for

compression for digital images,

particularly those images produced by

digital photography. The degree of

compression can be adjusted, allowing

a selectable trade-off between storage

size and image quality. JPEG typically

achieves 10:1 compression with little

perceptible loss in image quality.

Portable

Network

Graphics (PNG)

.png A dotmatrix type image group file

format that supports lossless data

compression. Reportedly, PNG was

created as an improved, non-patented

replacement for Graphics Interchange

Format (GIF) and is the most widely

used lossless image compression

format on the Internet

Graphics

Interchange

Format

.gif A bitmap image format that was

developed by a team at CompuServe in

1987. It has since come to be one of the

most popular format used on the

Internet due to its wide support and

portability. As a bit of trivia, the

compression technique used to

compress GIF images was patented in

126


Extensions

Description

1985 and controversy over the

licensing agreement spurred the

development of the PNG format. But,

by 2004, all relevant patents had

expired.

Bitmap Image

File (BMP)

.bmp, .dip A dotmatrix type image file format

used to store bitmap digital images,

independently of the display device

(such as a graphics adapter) especially

on Windows and Mac operating

systems. The BMP file format is

capable of storing two-dimensional

digital images both in monochrome and

color.

Picture

Exchange

(PCX)

.pcx PCX is an image file format developed

by the now-defunct ZSoft Corporation.

It was the native file format for PC

Paintbrush and became one of the first

widely accepted DOS imaging

standards although it has since been

succeeded by more sophisticated image

formats such as BMP, JPEG and PNG.

Tagged Image

File Format

(TIFF)

.tiff, .tif A computer file format for storing

dotmatrix type images, popular among

graphic artists, the publishing industry

and photographers. Tif is widely

127


Extensions

Description

supported by scanning, faxing, word

processing, optical character

recognition, image manipulation,

desktop publishing, and page layout

applications. There additionally have

been several extensions and technical

notes published with minor extensions

or variations to the format which was

originally created by Aldus

Corporation and later updated by

Adobe Systems.

Encapsulated

Postscript (EPS)

.eps, .epsf, .epsi A postscript is a page description

language in the electronic publishing

and desktop publishing business.

Encapsulated postscript is a standard

postscript document which is intended

to be usable as a graphics file format.

EPS files are more or less self-

contained, and reasonably predictable

postscript documents that describe an

image or drawing. An EPS file is a

postscript program, saved as a single

file that includes a low level resolution

preview encapsulated inside it which

allows some programs to display a

preview on the screen.

128


Extensions

Description

Portable

Document

Format (PDF)

.pdf Although this format is quite familiar

and developed in the 1990s to present

entire documents including text

formatting and images, it can’t be

forgotten that this format can

encapsulate images, graphics, and

more. The format is based on the

postscript language and each PDF file

encapsulates a complete description of

a fixed layout flat document, including

the text, fonts, vector graphics, raster

images and other information needed to

display it.

And, keep in mind, this is only a few of the possible image file formats that the

practitioner might encounter. In fact, often many programs and applications create their

own image file format and/or compression standard for their own uses. Thus, the number

of file formats is nearly unlimited. Likewise, this also only includes image files and does

not include items such as video, documents, SMS messages, MMS messages, and more.

With all of that said, if the average practitioner does not obtain an expert to obtain

the documents themselves, the next best thing will be to have the opposing party to

produce printouts of the subject information. In other words, proud of the Facebook page,

or a text message conversation, eliminates the need to know what file format is being

used and how to access that file format. Note that Rule 34 of the Tennessee Rules of Civil

Procedure allows a party to request “electronically stored information (including

writings, drawings, graphs, charts, photographs, sound recordings, images, phonorecords,

129

and other data and data compilations stored in any medium from which information can

be obtained either directly or, if necessary, after translation by the respondent into a

reasonably usable form).” So, unless you have some suspicion that the opposing party is

not producing all of the relevant information, it is probably best to have them produce the

information in a format that is directly obtainable and usable by your expert, staff, etc.

2. ObtainingEvidence:Smartphones,PCsandTablets,Third

Parties,FlashDrivesandExternalHardDrives,CloudStorage

Obtaining evidence from smart phones, PCs and tablets can be quite tricky and

encompassing. Unlike the current digital thieves of the day, most practitioners do not

have with them the devices necessary to of the average smart phone, PC or tablet. But

such devices are available. For example, cnet.com in 2008 reported of a device that it

calls a CSI Stick or Cellular Seizure Investigation Stick. Purportedly developed primarily

for law enforcement surveillance, the device was also available to the public.

Manufactured by a company called Paraben, they created a device that was a self-

contained module about the size of a cigarette lighter. The device plugs directly into most

Motorola and Samsung cell phones to capture all data they contain. An updated and

slightly modified version of that device marketed as a Paraben Phone Recovery Stick is

available through Amazon but hasn’t mixed reviews about the ability to recover deleted

data. I suspect, however, that

the use of this device to

recovered current data that has

not been deleted would be

seamless. Nevertheless, paying

the price tag of $119 to test it

may not be worth the effort.

Instead, I would suggest for this purpose, you contact the service such as Verity

Digital Forensics out of Memphis for recovery of electronic evidence. A service such as

Figure 1. Available at Amazon.com

130

this will provide you expert assistance in preserving, recovering, examining and

presenting the electronic evidence from your case. Plus, it will also satisfy the needs of

your case regarding any chain of custody and/or authentication requirements.

But, if you must obtain the information yourself, once you’ve obtained the

electronic data from the smart phone, PC or tablet, remember that you must authenticate

that information in order to get it into evidence. That is, Rule 901 of the Tennessee Rules

of Evidence provides the guidelines in Tennessee for the authentication and identification

of evidence in order for it to be admissible at trial. It provides, in pertinent part, “the

requirement of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to the court to support a finding by the trier of fact that

the matter in question is what its proponent claims.” Thus, while this is open ended, it

still can be quite challenging when we are talking about obtaining information off of a

smart phone, PC or tablet. One possible way of authenticating that information is to

simply get the party from whom it was taken to identify and authenticate the existence of

the information. But a crafty opposing party will likely defeat even the most well-

intentioned practitioner trying to authenticate the evidence in that fashion. Thus, it may

be incumbent upon you to actually show that the information was taken from the

opponent smart phone, PC or tablet and show the timing, creation, and author of the

information.

One court has stated that this can be done using metadata. The court stated

“[a]nother way in which electronic evidence may be authenticated under Rule 901(b)(4)

is by examining the metadata for the evidence.” Lorraine v. Markel Am. Ins. Co., 241

F.R.D. 534, 547 (D. Md. 2007). As discussed more fully below, metadata is “data about

data” and provides information about how, when, and by whom the data set or document

was collected, created, accessed or modified. This will allow the practitioner to avoid

spurious allegations such as the opponent maintaining that the image, document, or other

data taken from the smart phone or tablet has been modified or changed in some fashion.

131

But, once you have overcome the problems with obtaining and authenticating data

you received from a smart phone, PC or tablet, it becomes another matter altogether to

obtain similar type data from 3rd parties and/or cloud storage. Thanks to the Stored

Communications Act (18 USC §§2701-2712), getting this information from the Internet

Service Provider, Facebook, twitter, etc. can be quite challenging. Purportedly, the

purpose behind the Stored Communications Act was to create 4th amendment like privacy

protection for email and other digital communications stored on the Internet. However,

since the 4th amendment applies to governmental entities, it shouldn’t apply to

nongovernmental parties who are part of a lawsuit. But, social media providers such as

Facebook have taken a different position. For example, Facebook on its help center page,

in response to the frequently asked question “May I obtain any account information or

account contents using a subpoena” answers by stating “Federal law does not allow

private parties to obtain the content of communications (example: messages, timeline

posts, photos) using subpoenas. See the Stored Communications Act, 18 U.S.C. § 2701 et

seq.”

132

Although the skeptic in us might have a different view of this, this particular

position appears to have merit. 18 USC S §2702 provides that an entity providing

“electronic communication service” or an entity providing “remote computing service” to

the public may not divulge to any person or entity the contents of any communication

that the service has. Ignoring for now the definitions of electronic communication service

and remote computing service, it is important to note that at least one court has held that

the Act “requires that entities such as YouTube who provide ‘remote computing service

to the public shall not knowingly divulge to any person or entity the contents’ of any

electronic communication stored on behalf of their subscribers, and ECPA § 2702

contains no exception for disclosure of such communications pursuant to civil

discovery requests.” Viacom Int'l Inc. v. YouTube Inc., 253 F.R.D. 256, 264 (S.D.N.Y.

2008). The concept seems to be quite established, notwithstanding the obvious argument

that the 1986 statute was enacted at a time when social media did not exist. Take for

example what the federal court in Crispin v. Christian Audigier, Inc. stated:

Congress passed the Stored Communications Act in 1986 as part of the

Electronic Communications Privacy Act. "The SCA was enacted because

the advent of the Internet presented a host of potential privacy breaches that

the Fourth Amendment does not address." Quon v. Arch Wireless Operating

Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008) (citing Orin S. Kerr, A User's

Guide to the Stored Communications Act, and a Legislator's Guide to

Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004)). The SCA

prevents "providers" of communication services from divulging private

communications to certain entities and individuals. Kerr, supra, at 1213. It

"creates a set of Fourth Amendment-like privacy protections by statute,

regulating the relationship between government investigators and service

providers in possession of users' private information." Id. at 1212. First, the

statute limits the government's right to compel providers to disclose

information in their possession about their customers and subscribers. 18

U.S.C. § 2703. "Although the Fourth Amendment may require no more than

133

a subpoena to obtain e-mails, the statute confers greater privacy protection."

Kerr, supra, at 1212-13. Second, the statute limits the right of an Internet

Service Provider ("ISP") to disclose information about customers and

subscribers to the government voluntarily. 18 U.S.C. § 2702.

The statute distinguishes between a remote computing service ("RCS")

provider and an electronic communication service ("ECS") provider,

establishing different standards of care for each. Quon, 529 F.3d at 900. The

SCA defines an ECS provider as "any service which provides to users

thereof the ability to send or receive wire or electronic communications."

18 U.S.C. § 2510(15). With certain enumerated exceptions, it prohibits an

ECS provider from "knowingly divulg[ing] to any person or entity the

contents of a communication while in electronic storage by that service."

Id., §§ 2702(a)(1), (b). The SCA defines [RCS as "the provision to the

public of computer storage or processing services by means of an electronic

communications system," id., § 2711(2), and in turn defines an electronic

communications system (as opposed to an electronic communication

service) as "any wire, radio, electromagnetic, photooptical or

photoelectronic facilities for the transmission of wire or electronic

communications, and any computer facilities or related electronic

equipment for the electronic storage of such communications," id., §

2510(14). The SCA prohibits an RCS provider from "knowingly

divulg[ing] to any person or entity the contents of any communication

which is carried or maintained on that service." Id., § 2702(a)(2). "[A]

person who does not provide an electronic communication service [or a

remote communication service] can disclose or use with impunity the

contents of an electronic communication unlawfully obtained from

electronic storage." Wesley College v. Pitts, 974 F.Supp. 375, 389 (D. Del.

1997) (citing 18 U.S.C. § 2702(a)).

134

An ECS provider is prohibited from divulging only "the contents of a

communication while in electronic storage by that service." 18 U.S.C. §

2702(a)(1). "Electronic storage" is "(A) any temporary, intermediate storage

of a wire or electronic communication incidental to the electronic

transmission thereof; and (B) any storage of such communication by an

electronic communication service for purposes of backup protection of such

communication." Id., § 2510(17). By contrast, an RCS provider may not

divulge the content of any communication received by electronic

transmission that is carried or maintained on its service for a customer or

subscriber "solely for the purpose of providing storage or computer

processing services to [the] subscriber or customer, if the provider is not

authorized to access the contents of [the] communications for purposes of

providing . . . services other than storage or computer processing." Id., §

2702(a)(2).

* * *

Although some courts have considered the SCA's application to certain

types of providers, none appears to have addressed whether social-

networking sites fall within the ambit of the statute. In Quon, the Ninth

Circuit considered whether a party providing text-messaging pager services

was an ECS provider or an RCS provider. The Ninth Circuit concluded that

defendant provided a "service" that enabled the plaintiff and others to "send

or receive . . . electronic communications," namely text messages, i.e., that

it was an ECS. Quon, 529 F.3d at 901. By contrast, an RCS provider must

provide "computer storage or processing services." Although the pager

service archived text messages on its server, and was therefore storing the

messages, Congress contemplated that an ECS provider would provide

some storage as well. Id. (citing 18 U.S.C. § 2510(17), which states that an

ECS provider may provide storage of communications for backup purposes

135

and describes a temporary, intermediate storage of communications

incidental to the electronic transmission thereof). The Ninth Circuit

concluded that the text-messaging pager service "served as a conduit for the

transmission of electronic communications from one user to another, and

stored those communications 'as a "backup."'" and as a consequence, held

that it constituted an ECS provider. Id. at 902 (quoting Theofel v. Farey-

Jones, 359 F.3d 1066, 1070 (9th Cir. 2004)).

* * *

Judge McDermott cited Quon for the proposition that a company is an ECS

provider if it "served as a conduit for the transmission of electronic

communications from one user to another, and stored those communications

as a backup for the user." Applying this definition, Judge McDermott held

that for Facebook, MySpace, or Media Temple to be considered ECS

providers, they had to "provide internet access or operate as conduits for the

transmission of data from one location to another." Because the websites'

messaging services are used solely for public display, he found that they

did not meet this definition.

The court concludes that, although largely sound, Judge McDermott's

reading of Quon and the SCA is contrary to law in certain respects. First,

Judge McDermott interpreted the descriptive language in Quon as a broadly

applicable definition of an ECS provider rather than as a description of a

particular type of provider, i.e., a text-messaging pager service. Treating

Quon's formulation as the exclusive definition of ECS provider, however,

improperly limits the reach of the statute, which extends to "any service

which provides to users thereof the ability to send or receive wire or

electronic communications." 18 U.S.C. § 2510(15) (emphasis supplied).

136

Judge McDermott also found that Facebook, MySpace, or Media Temple

engaged in public messaging only and concluded that this fact was

dispositive. In reaching this conclusion, Judge McDermott apparently

misconstrued the information plaintiff provided concerning the nature of the

services the third-party companies provided. It is clear, for instance, that

Media Temple provides "webmail," which is a "service that allows users to

view email messages." In addition plaintiff stated that both Facebook and

MySpace provided "private messaging services."

Recognizing that all three sites provide private messaging or email services,

the court is compelled to apply the voluminous case law cited above that

establishes that such services constitute ECS. Moreover, the information the

parties gave Judge McDermott establishes that Facebook wall postings and

the MySpace comments are not strictly "public," but are accessible only to

those users plaintiff selects. The court therefore finds relevant, if not

controlling, the authority regarding private electronic bulletin board

services ("BBS").

Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 971-80 (C.D. Cal. 2010). As a

result, at least one federal district court has held that the protections of the Stored

Communications Act applies to social media companies and prevents an individual from

sending out a simple subpoena to them to obtain that information. In general, it seems

that the idea is that the providers of that information shouldn’t have access to the

information themselves and therefore should not have the ability to divulge that

information to any other 3rd party. It appears, however, that the issue, although far from

completely settled, has pretty much been decided by this previous decision. That means,

for the average practitioner, sending out a subpoena for Facebook, text, and other

information from the provider is not going to work.

Note, however, that this does not protect the opposing party from disclosing their

own communications and Facebook or other social media postings. Instead, this statue

137

stands for the sole proposition that the platform provider, i.e., Facebook, cannot be

compelled, by subpoena or otherwise, to provide this information under the Stored

Communications Act.

In short, just the discussion of this topic alone, which appears to be quite

unsettled, could take up the space of an entire book. But for practical purposes, just be

aware that in order to get information from 3rd parties or cloud storage, the average

practitioner will need permission from the owner. It means asking the owner for

permission or for the information specifically.

3. MetadataExplained

In order to understand how to safeguard the authenticity of your electronic

evidence, i.e., text messages, social media, emails etc., the practitioner has to have a

working understanding of metadata. As you will see, metadata is the way that the parties

can determine if electronic information has been modified and is no longer authentic.

With the right expert testimony, an expert can tell whether or not a picture, an email, a

text message, etc. has been modified from its original version by utilizing metadata.

Wikipedia defines metadata as “data [information] that provides information

about other data.” There are 3 distinct types of metadata, descriptive metadata, structural

metadata and administrative metadata. Descriptive metadata describes a resource for the

purposes of identification and discovery. It includes elements such as title, abstract,

author and keywords. Structural metadata is metadata about containers of data and

indicates how compound objects are put together, for example, how pages are ordered to

form chapters. It describes the types, versions, relationships and other characteristics of

digital materials. Administrative metadata provides information to help manage a

resource, such as when and how it was created, file type and other technical information,

and who can access it.

138

This concept is not foreign to most of us. In fact, we’ve probably used it for many

years. Take, for example, the card catalog that libraries used prior to online cataloging of

books and information. The cards in the Dewey decimal system format made the original

form of metadata. Now, however, in digital forms, metadata quite often goes along with

the actual file itself. Because the metadata is not always readily apparent and viewable in

the application, most of us forget about its existence. Nevertheless, this type of data is

still there. Again, according to Wikipedia “[t]here are different metadata standards for

each different discipline (e.g., museum collections, digital audio files, websites, etc.).

Describing the contents and context of data or data files increases its usefulness. For

example, a web page may include metadata specifying what software language the page

is written in (e.g., HTML), what tools were used to create it, what subjects the page is

about, and where to find more information about the subject.”

Knowing this fact opens up a proverbial Pandora’s box. It provides infinite

possibilities as well as infinite problems. That is, metadata, for example, may be written

into digital photograph files to identify who owns it, copyright information, contact

information, brand of camera or model of camera used to create it and more. Metadata is

also particularly useful in video where the information about its contents such as

transcripts of conversations and text descriptions of the scenes can be inserted into the

exact same file as the video.

The concept of metadata is not foreign or complex. What is somewhat complex

and problematic, however, is the idea of accessing and obtaining the metadata. Metadata

requires the user to utilize the specific language in standard of the metadata in order to

read it. In other words, if the data is in HTML or XML, an application that understands

and processes these languages will be necessary for the average individual to view the

metadata. Thus, again, the possibilities are endless and, as a result, points the average

practitioner back to an expert in order to obtain the metadata. Although there are online

metadata viewers, providing that information to an unknown third-party may be

problematic, ethically speaking. In other words, you would be providing sensitive and

139

confidential client information to an unknown website. This, of course, is not the optimal

solution. Therefore, if you insist upon doing this type of search of metadata yourself, then

I suggest that you invest in software specific for viewing metadata. Wikipedia provides

an excellent comparison chart and table of several metadata viewing/editing programs at

the following link: https://en.wikipedia.org/wiki/Comparison_of_metadata_editors.

B. How to Authenticate Electronic Evidence and Get It Admitted

1. EmailMessages,ChainsandAttachments

Once you have gotten over the hurdle of attaining the electronically stored

information you desire, your next question is going to be is that information complete and

authentic. In other words, has the information somehow been changed, abridged or

otherwise modified? For example, with the use of the tools available to the average

person, such as Photoshop, photographs can be modified in such a way that changes to

the photograph, visually, are nearly imperceptible. So how do you determine if the

information you received is authentic.

This is where metadata becomes your friend. As you may recall, metadata is data

about data. As result, the metadata for certain electronically stored information will

provide you with a brief look at the history of the ESI including its creation, its

modification and more. But getting to this information, under normal circumstances, is

not easily done without expert help. While Photoshop, for example, will show you the

metadata associated with the photograph, if you download the photograph from a social

media site, it may be nearly impossible to tell, from the metadata alone, if the photo has

140

been modified. This is because the original metadata may have been overwritten by the

social media site.

So, the best option to determine the authenticity of any particular evidence is to

obtain that evidence in its native format. In other words, obtaining a CD or flash drive

version of data is preferable to getting a print out of the exact same data. With the CD or

flash drive version, the metadata will be available for review. With the printout, of

course, there is no metadata to review.

Therefore, when it comes to authenticating email messages, for example, it helps

to remember Rule 901 of the Federal Rules of Evidence. It provides, as you may recall,

“[t]o satisfy the requirement of authenticating or identifying an item of evidence, the

proponent must produce evidence sufficient to support a finding that the item is what the

proponent claims it is.” Assuming that the metadata that you received with the email does

not indicate any modifications, simply having a witness testified that the email is what it

said it was or is from the person it purports to be is adequate enough to get the email

admitted. And recall that Rule 1003 provides that a “duplicate is admissible to the same

extent as the original unless a genuine question is raised about the original's authenticity

or the circumstances make it unfair to admit the duplicate.” That means that your email is

admissible the moment it has been identified by a witness with knowledge, assuming that

the email is not hearsay or inadmissible for other reasons.

The same is true for an email trail or chain and the attachments. These are also

admissible upon authentication by a person with knowledge. The easiest way to

authenticate these is simply to get the person who sent the email to identify it or the

person who receive the email to identify it and its attachments.

2. SocialMedia,InstantMessagesandBlogs

141

Because the authentication of social media, instant messages and blogs still falls

under Rule 901, there authentication and admission are essentially the same as email

messages and attachments. Therefore, we need not reiterate those points here. However,

there are some considerations for social media and blogs that are not considerations for

emails and attachments. Social media, for example, is subject to hacking quite often.

Thus, it may be possible for someone to actually log into someone’s social media account

and post something on their timeline or as a part of their twitter feed without the person’s

actual knowledge or permission. In that situation, it might be possible to authenticate the

message, but the message itself might not be from the person who owns the account. The

same is true for blogs and comments to blogs as well. In these situations, recall that Rule

1003 requires a genuine question be raised about the original’s authenticity. Here a

genuine question can be raised by the owner of the social media account or blog

testifying that their accounts have been hacked.

Keep in mind, that with the appropriate expert assistance, the opposing party can

actually determine if the account owner actually is sincere about having their social

media account hacked or, on the other hand, if they are simply being disingenuous. For

one thing, once the social media account has been hacked, it has certain characteristics

that can be tracked. That is, rarely do hackers gain access to the account owner’s account

simply to post a single posting. Instead, most often, they post multiple postings and grab

information about friends, contacts, etc. Finding that on a social media account will help

to confirm that the social media account has actually been hacked.

3. TextsandOtherSmartPhoneEvidence

More often than not, the issue of whether or not a text message or other smart

phone evidence is authentic depends more on where the evidence was obtained. If the

evidence has been obtained through some expert, then the expert can testify that the text

142

message or phone log, etc. actually came from the phone that they were provided. In

other words, they can usually testify to the chain of custody of the smart phone to show

that the smart phone they were given, assuming it was one belonging to one of the parties

or someone else at interest, actually contained the information they pulled.

But, again, remember that authenticity can be obtained for these items directly

from the party who provided the evidence. Again, simply asked the owner if the text

message, phone log, etc. belongs to them.

4. Voicemail,VideoandAudioRecordings

Finally, voicemail, video and audio recordings are similar in their authenticity

when considered under Rule 901. But keep in mind that Rule 1001 specifically mentions

recordings and photographs and places them under the purview of Rule 1003. This means

that unless there is a genuine issue as to the authenticity of these items, even a duplicate

of the items is admissible. Likewise, consider the fact that subdivision (b)(5) of Rule 901,

for example, specifically talks about a way of authenticating a person’s voice as in the

voice of an individual on a voicemail message. Likewise, subsection (b)(6) talks about a

telephone conversation as well.

C. Getting Their Electronic Evidence Thrown Out of Court

As we all know, Rule 402 of the Federal Rules of Evidence provides that

“[r]elevant evidence is admissible unless any of the following provides otherwise: the

United States Constitution; a federal statute; these rules; or other rules prescribed by the

Supreme Court.” Thus, we can start with the assumption that most of your opponent’s

evidence will be admissible unless some rule provides that it is not. Therefore, the most

143

direct ways of getting your objections to any evidence, before it is offered to the trier of

fact, is to simply file a motion in limine prior to trial.

For obvious reasons, crucial evidence which may be controversial should be

tested for admissibility in a motion in limine prior to trial. For example, in a defamation

case where the plaintiff has alleged defamatory statements made by one of his creditors to

one of the national credit reporting agencies by reporting one of his credit accounts

involved in a bankruptcy, the question of admissibility of the fact that the plaintiff's wife

had in fact filed bankruptcy may not be easily seen at the beginning of the case. If, in this

example, the plaintiff had a bankruptcy reported on his credit account, but he had not

filed for bankruptcy, the fact that his wife filed for bankruptcy and had privileges on his

credit cards may or may not be admissible. As a result, the best method for obtaining the

admission of this evidence or, for that matter, it’s exclusion, is to seek the guidance of the

court prior to trial with a motion in limine.

D. Applying the Hearsay Rule

1. IsComputer‐GeneratedandCellPhoneInformationHearsay?

Any discussion of whether computer-generated or cell phone information is

hearsay needs to start with a valid and good understanding of hearsay. The Tennessee

appellate courts have dealt with this very issue and have provided a fairly universal

concept for hearsay. Hearsay is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” State v. Meeks, 867 S.W.2d 361, 375 (Tenn. Crim. App. 1993).

Essentially, if you understand the role of this rule, its primary purpose is to limit the

factfinder’s consideration to reliable evidence received from witnesses who are under

144

oath and subject to cross-examination. In fact, rule 801 of the Tennessee rules of

evidence defines a statement and a declarant, subject to the hearsay rule as follows:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal

conduct of a person if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

Tenn. R. Evid. Rule 801.

The federal rule is similar and states as follows:

(a) Statement. “Statement” means a person's oral assertion, written assertion, or

nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

Fed. R. Evid. 801. Thus, the true question becomes, with computer-generated

information, who is the “person” who makes the statement? Who is the “person” who

intends the statement to be an assertion? Thus, the court in State v. Meeks was faced with

the question of whether a printout, which contained the date, day and time of a call, the

number called and the number from which the call was made, was admissible

notwithstanding the hearsay rule. The court noted that “[a]lthough a computer printout of

information from a databank programmed into the computer by a person may be viewed

as a person's statement for hearsay purposes, the printout of a telephone trace does not

necessarily represent evidence of computer stored declarations other than the fact that a

certain telephone number exists.” State v. Meeks, 867 S.W.2d at 375. The Meeks court

stated:

The leading case regarding hearsay and computer generated telephone

tracing systems appears to be State v. Armstead, 432 So.2d 837 (La.1983)

in which the court stated the following:

145

From our understanding of the record, however, we are not dealing

with computer stored human statements or assertions which have

been retrieved from the computer and introduced into evidence in

printout form. The invention of electronic switching systems in

telecommunications has eliminated the need for manual

involvement in a telephone trace. Since the computer is actually

responsible for making the telephone connection, the computer can

be programmed to record the source of any incoming call. Thus, the

printout of a telephone trace in this type of system does not represent

evidence of computer stored declarations. The computer generated

data by recording the source of various telephone connections as it

was making them. Therefore, the evidence in this case was

generated solely by the electrical and mechanical operations of the

computer and telephone equipment, and was not dependent upon the

observations and reporting of a human declarant.

Id. at 839–840. The court considered the printout to be a “self-generated

record of its operations, much like a seismograph can produce a record of

geophysical occurrences, a flight recorder can produce a record of physical

conditions onboard an aircraft, and an electron microscope can produce a

micrograph, which is a photograph of things too small to be viewed by the

human eye.” Id. at 840 (footnote omitted).

* * *

In this case, the record reflects that persons with special knowledge about

the operation of the computer system gave evidence about the accuracy and

reliability of the computer tracing so as to justify the admission of the

computer printouts. The rule against hearsay is not implicated.

State v. Meeks, 867 S.W.2d at 375–76 (emphasis added).

146

In essence, whether there is an argument regarding computer-generated

information and cell phone information being hearsay depends upon the type of

information. If the information is simply stored recollections of human statements or

assertions, then the argument above does not apply. On the other hand, if the information

is simply a stored record of computer interactions, then the rule against hearsay is not

implicated.

2. AdheringtotheHearsayRule

Now that we have established that certain information, generated by computers

and so on, is not hearsay. The next question becomes: what about the information that is

a recorded recollection of a human statement or assertion? In other words, information

from Facebook, Twitter, Instagram, etc. are clearly assertions and statements of human

beings. How do you adhere to the hearsay rule but still managed to offer into evidence

the statements?

In this situation, the practitioner must follow the general rules of hearsay in order

to obtain the admission of their proposed evidence. Thus, if the practitioner has a

Facebook post from an individual or a witness, and the post is offered for the truth of the

matters stated in the post itself, then the practitioner must endeavor to meet one of the

hearsay exceptions. Most often, the hearsay exception that will apply is Rule 803 (1.2)

which is an admission by a party opponent. That is, most often you will be using the

statements of the opponent against them.

147

3. ApplyingHearsayExceptionstoEmail,TextandSocialMedia

Rules 801 and 803 of the Federal Rules of Evidence provide for the exceptions to

the hearsay rule. The rules, collectively, provide for 25 different exceptions to the general

hearsay exclusionary rule. But, most likely only 4 will be useful to the average

practitioner in most circumstances. These are: 801(d)(2) An Opposing Party’s Statement;

803(1) Present Sense Impression; 803(3) Then-Existing Mental, Emotional or Physical

Condition; and 803(5) Recorded Recollection. Most social media, email and text

messages will fall into one of these 4 categories.

801(d) Statements That Are Not Hearsay. A statement that meets the following

conditions is not hearsay:

* * * *

(2) An Opposing Party's Statement. The statement is offered against an

opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the

subject;

(D) was made by the party's agent or employee on a matter within the scope of

that relationship and while it existed; or

(E) was made by the party's coconspirator during and in furtherance of the

conspiracy.

This is the most obvious of the hearsay exceptions that might apply to email, text

messages or social media. In most situations using a post or email against another party

opponent will be the most relevant and efficient use of the evidence in any event. That is,

an email from an opposing party admitting or denying something relevant to the litigation

is likely to be the most useful information you have. As I mentioned earlier, in a previous

case, I was able to use posts from a workers’ compensation claimant to show that the

148

workers compensation claimant, whose job was to drive a forklift, had admitted that she

was attending, competing and traveling to a motorcycle convention in another state. Her

own statements in her Facebook posts were the best evidence of her capabilities in the

workers compensation case.

803(1) Present Sense Impression. A statement describing or explaining an

event or condition, made while or immediately after the declarant perceived

it.

and

803(3) Then-Existing Mental, Emotional, or Physical Condition. A

statement of the declarant's then-existing state of mind (such as motive,

intent, or plan) or emotional, sensory, or physical condition (such as mental

feeling, pain, or bodily health), but not including a statement of memory or

belief to prove the fact remembered or believed unless it relates to the

validity or terms of the declarant's will.

These two exceptions might also apply. Although it will be difficult to find a situation

where the existing mental or emotional condition of an individual is recorded in a social

media, text message or other email where it is not also an admission by a party opponent,

there are some possibilities. For example, a practitioner may find that they want to utilize

their own’s client’s social media, text messaging or emails to assert a mental, emotional

or physical condition. In that case, utilizing this particular exception will be most useful.

Take for example a lawsuit where your client needs to prove that the client was not aware

of a certain particular fact. You may find yourself offering emails, social media or text

messages that suggest facts that were contrary to that knowledge. In other words, you

might be able to prove that your client did not know, for example, of the existence of a

defect on their property at the time a premises liability plaintiff encounters the defect and

gets injured.

803(5) Recorded Recollection. A record that:

149

(A) is on a matter the witness once knew about but now cannot recall

well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh

in the witness's memory; and

(C) accurately reflects the witness's knowledge.

If admitted, the record may be read into evidence but may be received as an

exhibit only if offered by an adverse party.

Of course, for this exception to be utilized, the witness must be on the stand and unable to

remember some particular fact that they did, in fact, know earlier. As you may recall,

common law rules allow a witness to have the recollection refreshed by the written

contents of the document. However, the document itself is not admissible under the

common law rule. Under this rule, however, the document can be use and adopted by the

witness and, if admitted, the record can be read into evidence, but not received as an

exhibit. Thus, utilizing this rule, text message and/or an email could be utilized by a party

to not only refresh the memory of a witness but also to establish the contents of that

email, text message and, possibly, social media post.

150

Expert Witnesses: How to Apply the Rules

Submitted by Jeffrey O. Meunier

151

VI. Expert Witnesses: How to Apply the Rules

A. Determining the Admissibility of Expert Witness Testimony

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (B)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

(a) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (B)(4)(c) of this rule, concerning fees and expenses as the court may deem appropriate.

(b) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(B) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means,

(c) Unless manifest injustice would result,

(i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivision (B)(4)(a)(ii) and (B)(4)(b) of this rule; and

(ii) with respect to discovery obtained under subdivision (B)(4)(a)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (B)(4)(b) of this rule the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness's perception; and

(b) helpful to a clear understanding of the witness's testimony or to a determination of a fact in issue.

153

Rule 702. Testimony by Expert Witnesses

(a) A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

(b) Expert scientific testimony is admissible only if the court is satisfied that the expert testimony rests upon reliable scientific principles.

Rule 703. Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.

Rule 704. Opinion on an Ultimate Issue

(a) In General—Not Automatically Objectionable. Testimony in the form of an opinion or inference otherwise admissible is not objectionable just because it embraces an ultimate issue.

(b) Exception. Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

Rule 705. Disclosing the Facts or Data Underlying an Expert’s Opinion

Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross examination.

B. Expert Witness Reports - Spotting Red Flags

The content of an expert witness report will depend on the specific facts of the case and the

expert’s planned testimony. However, many expert reports – even from very different disciplines – share

similar organizational features. For instance, most include statements of:

ꞏ Qualifications

ꞏ The assignment given to the expert (i.e. evaluating medical records / recreating

accident conditions)

154

ꞏ Documents reviewed and research undertaken

ꞏ The expert’s opinions

ꞏ Any necessary disclaimers

ꞏ Signature and date

Most reports also include a section for attachments containing relevant documents, like

the expert’s CV. When working with an expert witness, it’s wise to provide a basic outline like

this one. Advise the witness to keep comments short and to the point within each section.

Once you review your opponent’s expert’s report, you’ll want to analyze all the

information that both supports and undercuts the opposing expert’s opinion. Be sure to closely

review and scrutinize the expert’s report, with an eye to every single error or inconsistency.

When you have a complete and thorough understanding of both the expert’s testimony and

report, you can start to identify some of the foundational weaknesses outlined below, and build

an effective cross-examination strategy around them.

In a foundational attack, your cross-examination should chiefly exploit the following

areas:

1. the opposing expert’s investigation of the case at hand,

2. the opposing expert’s methodology, and

3. the opposing expert’s conclusions.

There are several ways to approach weaknesses in each of these areas. Which ones you

choose to use will depend on the idiosyncrasies of your case and the opposing expert.

C. Attacking Credibility

155

Exploring prior testimony of the expert can be helpful. If the witness always testifies on

one side that can be used to undermine credibility. Obviously attacking the credentials of the

expert undermines credibility.

To challenge the expert’s investigation of the case, you can exploit deficiencies in the

opposing expert’s understanding of the facts. Or you can highlight problems with the how the

investigation was conducted.

One of the benefits of attacking the facts of the opposing expert’s opinion is that it lets

you stay on familiar ground during cross examination, since you already know the facts inside

out. Additionally, you can avoid getting mired in a complex argument about the science; which

can be a potentially confusing line of questioning for the jury.

Alternatively, if you can’t challenge the facts, you can challenge the investigation itself.

You will want to exploit any differences between the opposing expert’s investigation and

standard procedures by asking questions that compare his or her investigation against model

investigatory protocol. Be sure to highlight investigatory measures that might have been more

appropriate for the case at hand that the expert did not follow.

D. Establishing (or Challenging) Character and Competency

E. Impeaching an Expert Witness

Impeachment of an expert is the same as impeaching any witness. Prior inconsistent

statements and showing of bias. One attack is premised on assumptions. Where the adverse

expert’s conclusions are premised on certain assumptions, a skillful cross can begin with an

156

agreement that the quality of the opinion depends on the correctness of the assumptions. Here,

the list of potential cross-examination points includes:

the danger for experts of relying on assumptions

assumptions made in this case

the concession that if the assumed facts are wrong then the opinion might be

wrong as well

F. Dealing with Hearsay

Rule 703. Bases of an Expert’s Opinion Testimony

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. Experts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.

Experts may in certain circumstances rely on inadmissible evidence including hearsay.

G. Handling Court-Appointed Expert Witnesses

Court appointed experts are still experts and treatment of hem should not be significantly

altered by that status. A little more care is required and obviously the attack based upon them

being a “hired gun” is no longer available.

157

Tips for Getting Demonstrative, Physical, Scientific and Other Evidence Admitted

Submitted by Robert J. Kasieta

159

How to Get Hearsay, Emails, Business Records, Social Media, and More Into Evidence

Tips for Getting Demonstrative, Physical, Scientific, and Other Evidence Admitted

(30 minutes)

1

2

161

Key Considerations

▪ Seek stipulations

▪ Provide source/supporting data

▪ Seek prior court approval–Motions in limine are not just for limiting

▪ Use the right sponsoring witness

▪ Don’t forget judicial notice

Thank you for your kind attention.

[email protected]

3

4

162

Ethical Considerations

Submitted by Brock J. Specht

163

Ethical Considerations for HandlingEvidence in Litigation

Brock J. Specht

Nichols Kaster, PLLP

Handling Evidence in Litigation

• Zealous representation of the client is almost always the litigator’s primary objective.

• The ethical rules surrounding the handling of evidence can occasionally conflict with this objective.

• Litigators need to balance zealous advocacy with their ethical obligations and the right to a “just, speedy, and inexpensive determination.” FRCP 1.

165

Sources of Authority

• ABA Model Rules of Professional Conduct

• State Ethics Rules

• Restatement of the Law Governing Lawyers

• ABA Standing Committee on Ethics and Professional Responsibility

Key Rules• Model Rule 1.1: Competence

• Model Rule 1.6: Confidentiality

• Model Rule 3.3: Candor

• Model Rule 3.4: Fairness

• Model Rule 3.6: Publicity

• Model Rule 4.2: Comm’s w/ Represented

• Model Rule 4.3: Dealing w/ Unrepresented

• Model Rule 4.4: Rights of Third Persons

• Model Rule 5.1: Supervision of Others

166

Competence

Competence

• Model Rule 1.1:

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

167

Competence & Technology

• The duty of competence requires knowledge of “the benefits and risks associated with relevant technology.”

ABA Model Rule 1.1, cmt. 8.

• The days of ignoring technology are long gone.


• State Bar of California’s Formal Opinion 2015-193:• Requires every attorney to assess potential e-discovery

issues at the outset• If counsel lacks the e-discovery skills necessary to

competently handle the matter, counsel must:• Acquire sufficient skill;• Associate with an expert; or• Decline the matter.

168


• Other states impose varying requirements:• Minnesota Lawyers Prof. Resp. Bd. Opinion No. 22 (Mar.

26, 2010):Lawyer must understand what metadata is, how it is transmitted and accessed, and what actions can be taken to prevent or minimize transmission.


• Delegation is allowed, but:

• In-house:• Model Rules 5.1 & 5.3: Duty to supervise

• Outsourced:• Model Rule 1.2: Allocation of authority• Model Rule 1.5: Fee sharing• Model Rule 1.6: Confidentiality

169

Chain of Custody

Chain of Custody

• Basic standards of conduct:• A lawyer may not falsify documentary or other evidence.• A lawyer may not alter such material in any way that

impairs its evidentiary value for other parties.• A document, such as an affidavit or declaration, prepared

by a lawyer for verification by another person must include only factual statements that the lawyer reasonably believes the person would make if testifying in person before the factfinder.

Restatement (Third) of the Law Governing Lawyers § 118 & cmt. b.

170

Chain of Custody

• Specific Examples:• Back-dating documents• Removing a document to another file• Deleting or adding language or other information• Materially changing the physical appearance of a

document or file

Restatement (Third) of the Law Governing Lawyers § 118 & cmt. b.

Chain of Custody

• Electronically Stored Information (“ESI”)• Model Rule 3.4 also prohibits a lawyer from “alter[ing],

destroy[ing] or conceal[ing] a document or other material having potential evidentiary value.”

• Comment 2 makes clear that this rule “applies to evidentiary material generally, including computerized information.”

171

Chain of Custody

• Metadata:• Author• Date created• Date last saved• Date accessed• Last saved by• Last printed

Chain of Custody

• Metadata:• Author• Date created• Date last saved• Date accessed• Last saved by• Last printed

172

Confidentiality

Confidentiality

• Model Rule 1.6(a):“A lawyer shall not reveal information relating to therepresentation of a client unless the client givesinformed consent, the disclosure is impliedlyauthorized in order to carry out the representation orthe disclosure is permitted by [certain enumeratedexceptions].”

173

Confidentiality

• Deliberate, unauthorized disclosures of confidentialinformation are clear violations of Rule 1.6(a)

• Inadvertent disclosures are also within the scope ofRule 1.6

HACKERS!

174

Confidentiality

• Model Rule 1.6(c):“A lawyer shall make reasonable efforts to prevent theinadvertent or unauthorized disclosure of, orunauthorized access to, information relating to therepresentation of a client.”

Confidentiality

Inadvertent & Unauthorized Disclosures:• “The unauthorized access to, or the inadvertent orunauthorized disclosure of, information relating tothe representation of a client does not constitute aviolation of paragraph (c) if the lawyer has madereasonable efforts to prevent the access ordisclosure.”

Model Rule 1.6, cmt. 18.

175

Confidentiality

Inadvertent & Unauthorized Disclosures:• “The unauthorized access to, or the inadvertent orunauthorized disclosure of, information relating tothe representation of a client does not constitute aviolation of paragraph (c) if the lawyer has madereasonable efforts to prevent the access ordisclosure.”


Reasonable Efforts to Prevent InadvertentDisclosure

• Factors include, among other things:• the sensitivity of the information• the likelihood of disclosure if additional safeguards arenot employed

• the cost of employing additional safeguards• the difficulty of implementing the safeguards• the extent to which the safeguards adversely affect thelawyer’s ability to represent clients (e.g., by making adevice or important piece of software excessively difficultto use)


176


• Lawyers and law firms are required to possess a significantlevel of technical competence:“[T]hose providing legal services now regularly use a varietyof devices to create, transmit and store confidentialcommunications, including desktop, laptop and notebookcomputers, tablet devices, smartphones, and cloudresource and storage locations. Each device and eachstorage location offer an opportunity for the inadvertent orunauthorized disclosure of information relating to therepresentation, and thus implicate a lawyer’s ethicalduties.”

ABA Formal Opinion 477.


• The Model Rules Allow for a Flexible Standard:“A client may require the lawyer to implement special securitymeasures not required by this Rule or may give informed consentto forgo security measures that would otherwise be required bythis Rule.”

ABA Model Rule 1.6, cmt. 18.

177

Receiving Inadvertently Disclosed Material

• Model Rule 4.4(b):“A lawyer who receives a document or electronically storedinformation relating to the representation of the lawyer'sclient and knows or reasonably should know that thedocument or electronically stored information wasinadvertently sent shall promptly notify the sender.”

Supervision of Others

178


• Model Rule 5.1(a):“A partner in a law firm, and a lawyer who individuallyor together with other lawyers possesses comparablemanagerial authority in a law firm, shall makereasonable efforts to ensure that the firm has in effectmeasures giving reasonable assurance that all lawyersin the firm conform to the Rules of ProfessionalConduct.”• Model Rule 5.3 includes similar requirements forsupervising non lawyers


• Modern e Discovery Requires Sophisticated Training& Skills Development:

“Unlike paper documents kept in storage cabinets,which can be sorted readily by a conscientiousattorney (or paralegal), e discovery requiressophisticated knowledge—both of a party’s specificsystems and operations, and of preservation, search,and retrieval techniques.”

Debra Lyn Bassett, E Pitfalls: Ethics and EDiscovery, 36 N. Ky. L. Rev. 449, 461–62 (2009).

179

Spoliation & RelatedIssues

Spoliation

Spoliation refers to the “destruction or materialalteration of evidence or to the failure to preserveproperty for another’s use as evidence in pending orreasonably foreseeable litigation.”

Micron Tech., Inc. v. Rambus Inc.,645 F.3d 1311 (Fed. Cir. 2011).

180

Spoliation

• Model Rule 3.4:“A lawyer shall not … unlawfully obstruct another party’saccess to evidence or unlawfully alter, destroy or conceal adocument or other material having potential evidentiaryvalue.”

Spoliation

• ESI Challenges:“Simply turning on a personal computer can destroy ‘slack’ and‘temporary’ files, cause electronically stored information to beoverwritten, or alter metadata (for example, data showing when a filewas created or modified),” and clicking on a file can change its “lastaccessed” date.

1 eDiscovery & Digital Evidence § 11:1; see also The Sedona Conference,Commentary on Ethics & Metadata 9 (2013).

181

Spoliation

Social Media

Spoliation

Social Media• Q. Can a lawyer advise a client to removepotentially damaging content from social mediaaccounts?

• A. No consensus, but most ethics opinions seemto suggest that you can, provided the content isotherwise preserved for litigation.

• Note: other civil or criminal rules may apply.

182

Concealing Evidence

• A lawyer may not:• “conceal a document or other material having potentialevidentiary value.” ABA Model Rule 3.4.

• “knowingly withhold a document that has been properlyrequested in discovery unless the lawyer does so inprocedurally proper form,” Restatement (Third) of the LawGoverning Lawyers § 118(2), cmt. c.

• “mix responsive and nonresponsive documents together ina way designed to obstruct detection of responsivedocuments.” Restatement (Third) of the Law GoverningLawyers § 118(2), cmt. c.

Concealing Evidence

Metadata• Q. When producing ESI, is a lawyer required to produceany corresponding metadata?

• A. The federal rules do not impose a bright line obligation:“Whether this information should be produced may beamong the topics discussed in the Rule 26(f) conference.”Fed. R. Civ. P. 26 (2006 comm. notes).

183

Communicating withCustodians

Client Communications

Model Rule 3.3(a):“A lawyer shall not knowingly … offer evidence that thelawyer knows to be false.”“If a lawyer, the lawyer’s client, or a witness called bythe lawyer, has offered material evidence and thelawyer comes to know of its falsity, the lawyer shalltake reasonable remedial measures, including, ifnecessary, disclosure to the tribunal.”

184

Client Communications

Model Rule 3.3(a):• Because of the potential for abuse related to ESI,lawyers dealing with unsophisticated clients mayneed to discuss their obligation of candor at theoutset of the representation.

Non Client CommunicationsRepresented Persons

Model Rule 4.2:“In representing a client, a lawyer shall not communicateabout the subject of the representation with a person thelawyer knows to be represented by another lawyer in thematter, unless the lawyer has the consent of the otherlawyer or is authorized to do so by law or a court order.”

185

Non Client CommunicationsRepresented Persons

Sanctions for Violating Rule 4.2 Can IncludeDisqualification or a New Trial:• Rowe v. Vaagen Bros. Lumber, Inc., 996 P.2d 1103 (Wash. App. 2000)(ordering new trial due to defense counsel’s ex parte contact withplaintiff's expert witness).

• Weeks v. Independent Sch. Dist. No. I 89, 230 F.3d 1201 (10th Cir.2000) (upholding disqualification of plaintiff’s attorney due to exparte communications with defendant’s employees).

Non Client CommunicationsUnrepresented Persons

Model Rule 4.3:“In dealing on behalf of a client with a person who is notrepresented by counsel, a lawyer shall not state or imply thatthe lawyer is disinterested.”“When the lawyer knows or reasonably should know that theunrepresented person misunderstands the lawyer’s role in thematter, the lawyer shall make reasonable efforts to correct themisunderstanding.”

186

Non Client CommunicationsUnrepresented Persons

Model Rule 4.3, comment 1:“In order to avoid a misunderstanding, a lawyer willtypically need to identify the lawyer’s client and, wherenecessary, explain that the client has interests opposedto those of the unrepresented person.”

Challenging PrivilegeunderFRE 502(d)

187

Challenging Privilege—Rule502(d)

Fed. R. Evid. 502(d):“A federal court may order that the privilege orprotection is not waived by disclosure connectedwith the litigation pending before the court — inwhich event the disclosure is also not a waiver in anyother federal or state proceeding.”

“Quick Peek” Challenge under 502(d):• Fairholme Funds, Inc. v. United States, 134 Fed.

Cl. 680, 686–87 (2017) (ordering production ofpotentially privileged documents, with no waiverof privilege, for “quick peek” review by opposingcounsel, as a means of expediting discovery).

• Winfield v. City of New York, 2018 WL 2148435,*7 (S.D.N.Y. May 10, 2018) (rejecting theargument that a court can compel production ofprivileged documents for a “quick peek” review).

Challenging Privilege—Rule 502(d)

188

THANK YOU

189

VIII. Ethical Considerations for Handling Evidence in Civil Litigation

Brock J. Specht, Nichols Kaster, PLLP

- - -

The preservation, production, and handling of evidence presents many ethical

considerations, especially in light of today’s complex electronic discovery (“e-discovery”)

processes. As with many other aspects of litigation, attorneys handling evidence must

balance zealous representation of their clients with the promotion of a just, speedy, and

inexpensive resolution as an officer of the court. The failure to adhere to either of these

ethical concerns can result in disqualification, preclusion of evidence, monetary sanctions,

disciplinary proceedings, and other serious consequences.

The Sedona Conference’s “Cooperation Proclamation”—issued more than a decade

ago on July 8, 2008—seeks to balance these potentially competing interests by abrogating

the barrage of discovery requests and motion practice that had proven unsustainable in the

world of high-volume electronically stored information (“ESI”). The proclamation, which

has been endorsed by more than 400 federal and state judges, calls on attorneys to work

together to reach agreement on reasonable approaches to the discovery of ESI, while still

effectively and zealously representing the interests of their clients. The ABA’s Model

Rules of Professional Conduct (“Model Rules”) help strike this balance by requiring

attorneys to adhere to duties of competence, confidentiality, fairness to opposing counsel,

and candor toward the tribunal and others.

Competence should always be at the forefront of an attorney’s ethics checklist.

Model Rule 1.1 requires “the legal knowledge, skill, thoroughness and preparation

reasonably necessary for representation.” The complex technologies involved in managing

e-discovery pose a significant competence hurdle for attorneys both new and experienced.

Indeed, the comments to Model Rule 1.1 remind attorneys that they have a duty to “keep

abreast of changes in the law and its practice, including the benefits and risks associated

with relevant technology.” ABA Model Rule 1.1, cmt. 8.

Additional state-specific authorities tend to demonstrate how the duty of

competence applies to complex e-discovery issues. For example, the State Bar of

190

California’s Formal Opinion 2015-1931 explains that the duty of competence requires that

every attorney “assess at the outset of each case what electronic discovery issues might

arise during the litigation, including the likelihood that e-discovery will or should be sought

by either side.” In cases where e-discovery is likely to be present, “the duty of competence

requires an attorney to assess his or her own e-discovery skills” and where such skills are

lacking “the attorney must try to acquire sufficient learning and skill, or associate or consult

with someone with expertise to assist.” Id. The only other “permissible choice” is “to

decline the representation.” Id. Many other jurisdictions have adopted similar technology

specific standards. See, e.g., Minnesota Lawyers Prof. Resp. Bd. Opinion No. 22 (Mar. 26,

2010) (concluding that the duty of competence requires lawyers to understand what

metadata2 is, how it is transmitted and accessed, and actions that can be taken to prevent or

minimize transmission).

In order to provide competent representation, attorneys today must not only

understand the basics of preserving and producing emails and other electronically stored

documents, but must also become familiar with more advanced concepts such as capturing

metadata and using sophisticated document review strategies such as technology-assisted

review or “TAR,” among other things. Thus, while all attorneys are expected to educate

themselves enough to discuss, manage, and determine the strategy relating to the

preservation and discovery of ESI, they may have to familiarize themselves with new

technologies and information on a case-by-case basis as well. For example, a case

involving text messages and social media may raise different technology and legal

concerns than a case involving business emails and instant messages.

In the absence of in-house e-discovery support, attorneys may need to associate

with outside counsel or consulting services in order to competently leverage discovery

technologies. The comments to Model Rule 1.1 allow for this, but require attorneys to

“ordinarily obtain informed consent from the client.” ABA Model Rule 1.1, cmt. 6. Further,

1 Available at https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL% 202015-193%20%5B11-0004%5D%20(06-30-15)%20-%20FINAL.pdf2 The advisory committee’s note to Federal Rule of Civil Procedure 26 defines “metadata” as “[i]nformation describing the history, tracking, or management of an electronic file.”

191

while in-house support falls under the firm’s “cone of silence” and fee structure, delegation

to external parties raises additional ethical compliance concerns under Model Rules 1.2

(allocation of authority), 1.4 (communication with client), 1.5(e) (fee sharing), 1.6

(confidentiality), and 5.5(a) (unauthorized practice of law). Counsel must assure

themselves that any arrangement with outside entities is consistent with their duties to their

client and the requirements of these rules.

A. Chain of Custody Considerations

Attorneys engaging in discovery practice must adhere to the ethical “chain of

custody” rules regarding the handling of evidence. These rules prohibit tampering with or

destroying evidence either intentionally or unintentionally; require attorneys to maintain

confidentiality of evidence either on behalf of their client or under a protective order; and

mandate proper supervision of staff, consultants, and junior attorneys to prevent their

violation of such rules. While all of these rules are equally important, technologically

unsophisticated counsel should pay particular attention to their obligation to avoid

unintentionally tampering with electronic evidence as a result of a lack of familiarity with

the technology involved in modern computer systems.

1. Integrity of Evidence

In handling potential evidence, attorneys must be careful to ensure that they neither

intentionally nor unintentionally alter documents and other materials prior to trial. The

Restatement of the Law Governing Lawyers provides that “[a] lawyer may not falsify

documentary or other evidence.” Restatement (Third) of the Law Governing Lawyers §

118(1) (2000). The Restatement specifically discusses chain-of-custody considerations,

recognizing that an attorney “may serve as custodian of evidentiary material, which

ordinarily should reach the proceeding in its original condition.” Restatement (Third) of

the Law Governing Lawyers § 118, cmt. b. Thus, “[a] lawyer may not alter such material

in any way that impairs its evidentiary value for other parties,” except as procedural rules

permit “in the course of reasonable scientific tests by experts.” Id. The Restatement also

cautions against altering documents “with the purpose of misleading another, such as by

back-dating the document, removing the document to another file to create a false

192

impression of its provenance, deleting or adding language or other characters to the

document so as to alter its effect, or materially changing its physical appearance.” Id.

While the Restatement discusses the handling of documents and files in terms

dating from the time when these concepts described papers and Redropes—not bits and

bytes—these concepts apply with equal force in the digital age. Consistent with the

Restatement, Model Rule 3.4(a) prohibits an attorney from unlawfully altering, destroying,

or concealing “a document or other material having potential evidentiary value,” and the

comments to the rule specify that this provision “applies to evidentiary material generally,

including computerized information.” ABA Model Rule 3.4, cmt. 2. Therefore, not only

are attorneys clearly prohibited from engaging in intentional tampering, but attorneys and

members of their staff charged with collecting potentially relevant ESI or handling this ESI

during the review and production process must take care to ensure that none of the data—

including the metadata associated with potentially relevant files—is altered in the process.

Failure to do so risks sanctions by the court, and even the unintentional alteration or

destruction of evidence could have significant adverse consequences for you and your

client. For counsel who lack a sophisticated understanding of how to access and handle

sensitive ESI, an e-discovery expert—whether in-house or an external service provider—

can be of great value, and may be ethically required in order to adhere to the duty of

competence.

2. Confidentiality

Attorneys must also maintain the confidentiality of evidence provided by their

client or under a protective order. Model Rule 1.6 generally prohibits an attorney from

revealing information relating to the representation of a client “unless the client gives

informed consent, the disclosure is impliedly authorized in order to carry out the

representation,” or the disclosure is permitted by a specific exception, such as “to comply

with other law or a court order.” ABA Model Rule 1.6(a). Compliance with this rule is not

only crucial to maintaining a client’s confidence in the attorney-client relationship, but is

also important to ensure that the client’s proprietary and other confidential data is protected

from inadvertent disclosure. Attorneys producing and handling evidence during litigation

193

have traditionally ensured that confidential information remains confidential via carefully

drafted protective orders and, where warranted under substantive law and allowed under

local practice, the filing of particularly sensitive information under seal.

In the age of online “hacking,” however, attorneys must do more to ensure that their

clients’ confidential information is not publicly disseminated.3 The ABA recently amended

Model Rule 1.6 to include the following language: “A lawyer shall make reasonable efforts

to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to,

information relating to the representation of a client.” ABA Model Rule 1.6(c). The

comments to the new provision emphasize that the issue of whether an attorney has acted

unethically does not depend on whether a disclosure occurred, but instead whether the

attorney took “reasonable efforts” to try to prevent an unauthorized disclosure in the first

instance. ABA Model Rule 1.6, cmt. 18. To this end, a number of factors are listed for

evaluating the reasonableness of the attorney’s efforts, which “include, but are not limited

to, the sensitivity of the information, the likelihood of disclosure if additional safeguards

are not employed, the cost of employing additional safeguards, the difficulty of

implementing the safeguards, and the extent to which the safeguards adversely affect the

lawyer’s ability to represent clients (e.g., by making a device or important piece of software

excessively difficult to use).” Id.

This is a complex and technical area of attorney ethics, as the ABA’s Standing

Committee on Ethics and Professional Responsibility recognized in Formal Opinion 477:

[T]hose providing legal services now regularly use a variety of devices to create, transmit and store confidential communications, including desktop, laptop and notebook computers, tablet devices, smartphones, and cloud resource and storage locations. Each device and each storage location offer an opportunity for the inadvertent or unauthorized disclosure of information relating to the representation, and thus implicate a lawyer’s ethical duties.

3 See, e.g., Ben Kochman, “China-Backed Hackers Targeted US Law Firm: Security Co” Law360 (Feb. 6, 2019), available at https://www.law360.com/consumerprotection/ articles/1126344/china-backed-hackers-targeted-us-law-firm-security-co

194

The Opinion4 contains a lengthy analysis of these issues in light of the “reasonable efforts”

standard in Model Rule 1.6(c), and it is worth consulting by any attorney looking to educate

themselves on these issues.

Finally, the comments to Model Rule 1.6 provide for additional flexibility in how

a lawyer handles cybersecurity, stating that a client “may require the lawyer to implement

special security measures not required by this Rule or may give informed consent to forgo

security measures that would otherwise be required by this Rule.” Id. It is not uncommon

for sophisticated corporate clients to mandate specific security measures. And even when

such measures are not specified by the client, it may be prudent for counsel to provide

clients with a written description of their cybersecurity protocols in order to avoid

ambiguity and assure the clients that counsel’s best efforts will be devoted to protecting

sensitive confidential information.

3. Supervision of Staff and Junior Attorneys

Senior attorneys are required to provide adequate supervision to staff and junior

attorneys to ensure firm-wide compliance with the rules governing the handling of

evidence. Model Rule 5.1 requires a supervising attorney to “make reasonable efforts to

ensure that the other lawyer conforms to the Rules,” and makes the supervising attorney

responsible for a junior lawyer’s misconduct under certain circumstances. Model Rule 5.3

applies similar supervisory duties regarding non-lawyer staff and outside consultants.

The comments to Model Rule 5.1 explain that this duty requires a firm to “establish

internal policies and procedures designed to provide reasonable assurance that all lawyers

in the firm will conform to the Rules.” Continuing legal education (“CLE”) programs can

contribute toward the fulfillment of this obligation. The comments also note that a firm’s

obligations will vary depending on the “firm’s structure and the nature of its practice.” Rule

5.1 also requires supervisors to “intervene to prevent avoidable consequences of

misconduct if the supervisor knows that the misconduct occurred.”

4 Available at: https://www.americanbar.org/content/dam/aba/images/abanews/ FormalOpinion477.pdf

195

When it comes to ESI, those with managerial authority must make reasonable

efforts to ensure that junior attorneys and staff members understand the firm’s e-discovery

software to minimize the risk of inadvertent alteration or disclosure. “Unlike paper

documents kept in storage cabinets, which can be sorted readily by a conscientious attorney

(or paralegal), e-discovery requires sophisticated knowledge—both of a party’s specific

systems and operations, and of preservation, search, and retrieval techniques.” Debra Lyn

Bassett, E-Pitfalls: Ethics and E-Discovery, 36 N. Ky. L. Rev. 449, 461–62 (2009). Thus,

firms should review former policies from the days of paper document discovery that may

have allowed for minimal supervision of junior attorneys performing document review,

and should consider bringing in an e-discovery expert. But beware of relying solely on e-

discovery experts to ensure compliance: the supervisory requirements of Rule 5.3 apply to

non-lawyers both “employed” and “retained” by a firm.

B. Spoliation, Preservation, and Missing Evidence

Attorneys are duty-bound to preserve relevant evidence for litigation and to produce

relevant documents pursuant to ethical and procedural rules. Model Rule 3.4 not only

prohibits the unlawful obstruction, alteration, destruction or concealment of materials

“having potential evidentiary value,” but also the failure “to make reasonably diligent effort

to comply with a legally proper discovery request by an opposing party” and to “knowingly

disobey an obligation under the rules of a tribunal.” See also Restatement (Third) of the

Law Governing Lawyers § 118(2) (“A lawyer may not destroy or obstruct another party’s

access to documentary or other evidence when doing so would violate a court order or other

legal requirements, or counsel or assist a client to do so.” )

1. Preservation and Spoliation

Parties who fail to preserve potentially relevant evidence may be sanctioned for

“spoliation,” which courts have defined as “the destruction or material alteration of

evidence or to the failure to preserve property for another’s use as evidence in pending or

reasonably foreseeable litigation.” Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1320

(Fed. Cir. 2011). The Restatement explains that record-retention is a nebulous issue that

“[n]o general statement can accurately describe”; rather, attorneys must consult statutes

196

and decisions of the particular jurisdiction involved. The legality of an action “may turn on

such factual questions as the state of mind of the client or a lawyer.” Restatement (Third)

of the Law Governing Lawyers § 118(2) cmt. c.

ESI presents particularly complex preservation challenges. “Simply turning on a

personal computer can destroy ‘slack’ and ‘temporary’ files, cause electronically stored

information to be overwritten, or alter metadata (for example, data showing when a file

was created or modified),” and clicking on a file can change its “last accessed” date. 1

eDiscovery & Digital Evidence § 11:1 (citing Gates Rubber Co. v. Bando Chem. Industries,

Ltd., 167 F.R.D. 90 (D. Colo. 1996)); see also The Sedona Conference, Commentary on

Ethics & Metadata 9 (2013). Parties must therefore be particularly careful in placing a

litigation hold on ESI that is potentially relevant to foreseeable litigation, and may need to

consult an e-discovery expert who can help connect the dots between legal requirements

and technological considerations, in order to avoid expensive and time-consuming

spoliation motion practice.

Attorneys counseling on social media compliance must balance the duty to preserve

potential evidence with the duty to zealously represent a client when counseling on the

removal of questionable content from social media or other electronic spaces. While the

New York Lawyers’ Association has determined that lawyers may instruct clients to

remove social media content that carries legal implications, NYCLA Ethics Opinion 745

(July 2, 2013), a Virginia lawyer who advised a plaintiff to clean up his Facebook photos

agreed to a five-year suspension from the practice of law for violating Rules 3.3 (candor

toward the tribunal), 3.4 (fairness to opposing party and counsel), and 8.4 (misconduct),

Allied Concrete Co. v. Lester, 285 Va. 295, 736 S.E.2d 699 (2013). The Philadelphia Bar

Association has taken a middle-ground approach by stating that an attorney is permitted to

instruct a client to delete damaging information from social media sites, “but must take

appropriate action to preserve the information in the event it should prove to be relevant

and discoverable.” Philadelphia Bar Ass’n Prof. Guidance Comm., Op. 2014-5 (July 2014).

In response to frequent intentional and unintentional spoliation of ESI, Federal Rule

of Civil Procedure 37(e) was amended in 2015 to provide for remedial measures to address

197

prejudice caused by a breach of the duty to preserve. Unintentional spoliation may be

remediated by measures no greater than necessary to cure the loss, while intentional

spoliation may result in a presumption that the lost information was unfavorable to the

spoliating party, a jury instruction to this effect, or even dismissal.

Rule 37(f) provides a safe harbor for electronic information lost due to the “routine

operation of an electronic information system.” But the advisory committee note to Rule

37 cautions that “a party is not permitted to exploit the routine operation of an information

system to thwart discovery obligations by allowing that operation to continue in order to

destroy specific stored information that it is required to preserve” under applicable law.

C. Missing and Highly Prejudicial Evidence

In addition to prohibiting spoliation, Model Rule 3.4 prohibits the obstruction or

concealment of materials “having potential evidentiary value,” and requires attorneys to be

“reasonably diligent” in complying with proper discovery requests. The Restatement

explains that “a lawyer may not knowingly withhold a document that has been properly

requested in discovery unless the lawyer does so in procedurally proper form,” and may

not “mix responsive and nonresponsive documents together in a way designed to obstruct

detection of responsive documents.” Restatement (Third) of the Law Governing Lawyers

§ 118(2) cmt. c (citing Restatement (Third) of the Law Governing Lawyers § 110, cmt. e).

Thus, lawyers cannot attempt to cloak highly prejudicial evidence through evasive tactics

unless they can properly justify doing so under procedural rules.

The discovery of highly prejudicial evidence can also raise ethical concerns relating

to the disclosure of such evidence. Model Rule 3.6(a) prohibits “[a] lawyer who is

participating or has participated in the investigation or litigation of a matter” from

disclosing highly prejudicial evidence via “an extrajudicial statement that the lawyer knows

or reasonably should know will be disseminated by means of public communication,” with

limited exceptions. The comments to Rule 3.6 discuss the importance of the rule

“particularly where trial by jury is involved,” but notes that “[c]ivil trials may be less

sensitive.” Further, the comments explain that statements otherwise prohibited by the Rule

“may be permissible when they are made in response to statements made publicly by

198

another party, another party's lawyer, or third persons,” where such a response is

reasonably required to prevent prejudice to the lawyer’s client.

One issue peculiar to ESI is whether or not metadata should be produced for

corresponding electronic evidence. Scholarly literature has stated that a presumption

against disclosing metadata absent agreement or court order would protect confidentiality;

however, “metadata certainly has the potential for leading to additional relevant evidence,

such as additional editing—and additional editors—of the document,” with the caution that

metadata may yield inaccurate information. Debra Lyn Bassett, E-Pitfalls: Ethics and E-

Discovery, 36 N. Ky. L. Rev. 449, 466–68 (2009). The advisory committee note to Federal

Rule of Civil Procedure 26 resolves the issue on a case-by-case basis by stating that

“[w]hether this information should be produced may be among the topics discussed in the

Rule 26(f) conference.”

D. Communicating with Data Custodians

Discovery procedures also present ethical concerns relating to communicating with

custodians of potentially relevant evidence such as clients, opposing parties, and third

parties.

1. Client Communication

In working with clients to gather evidence supporting their case, attorneys must

adhere to rules governing candor toward the tribunal. Model Rule 3.3 prohibits a lawyer

from knowingly offering false evidence, and requires a lawyer who discovers that material

evidence is false to “take reasonable remedial measures, including if necessary, disclosure

to the tribunal.” A lawyer may refuse to offer evidence he reasonably believes is false under

Rule 3.3. Thus, despite the duty of confidentiality, an attorney has an overriding duty to

either refuse to offer or take remedial steps to address false evidence a client may provide

during discovery.

Although courts have issued differing opinions on whether deposition testimony is

subject to Rule 3.3 before trial, the ABA Committee on Ethics and Professional

Responsibility states that the rule is equally applicable to discovery as trial because

“potential ongoing reliance” on the misrepresentations could influence further proceedings

199

including settlement negotiations. See ABA Formal Ethics Op. 93-376. The Committee

suggested that the lawyer’s first step in rectifying a client’s false evidence should be to

urge the client to rectify the situation confidentially. If these efforts fail, the lawyer must

take action to ensure the fraud is not perpetrated on the court and withdraw from the

representation to avoid assisting in the fraud under Model Rules 3.3 and 1.2(d).

2. Opposing Party and Third Party Communication

In communicating with non-client custodians, an attorney must adhere to rules

governing communications with parties represented by counsel as well as unrepresented

parties. Under Model Rule 4.2, a lawyer may not communicate about a case with a party

that the lawyer knows is represented by another lawyer in that matter without the consent

of the other lawyer or authorization by law. The comments to the rule state that it applies

even if the represented party initiates or consents to contact. Rule 4.2 covers not only the

named parties, but any person who has retained counsel in a matter and whose interests are

potentially distinct from those of the client on whose behalf the communicating lawyer is

acting, including potential defendants and witnesses who have hired counsel. ABA Formal

Ethics Op. No. 95-396 (1995). But counsel must be retained for the specific matter at

hand—thus, a general relationship with counsel, including in-house counsel, does not

trigger the rule. See, e.g., Humco, Inc. v. Noble, 31 S.W.3d 916, 919 (Ky. 2000).

A violation of the ex parte communication rules can result in an order for a new

trial or even disqualification of counsel, especially when the violation results in the

disclosure of confidential information or other prejudice. See, e.g., Rowe v. Vaagen Bros.

Lumber, Inc., 996 P.2d 1103 (Wash. App. 2000) (ordering new trial due to defense

counsel’s ex parte contact with plaintiff's expert witness); Weeks v. Independent Sch. Dist.

No. I-89, 230 F.3d 1201 (10th Cir. 2000) (upholding disqualification of plaintiff’s attorney

due to ex parte communications with defendant’s employees).

Further, Model Rule 4.4 requires an attorney to notify the sender if information was

inadvertently sent. The comments to the rule explain that this provision applies to the

receipt of information “that was mistakenly sent or produced by opposing parties or their

lawyers,” such as “when an email or letter is misaddressed” or a document is “accidentally

200

included with information that was intentionally transmitted.” The comments explain that

while the attorney must notify the sender and take protective measures, whether the

document must be returned is determined under applicable law such as that relating to

privileges.

In communicating with non-client custodians, attorneys must also be careful not to

let the adversarial nature of litigation lead to harassing or illegal discovery tactics. Model

Rule 4.4 also prohibits attorneys from using means intended to “embarrass, delay, or

burden a third person,” and from obtaining evidence through illegal means. See also

Restatement (Third) of the Law Governing Lawyers § 106. And the Restatement prohibits

the solicitation of evidence that a lawyer reasonably should know a third party “may not

reveal without violating a duty of confidentiality to another imposed by law.” Restatement

(Third) of the Law Governing Lawyers § 102. The comments to the Restatement explain

that this rule may apply when the custodian is an agent, i.e. an employee, of the opposing

party.

Finally, Model Rule 4.3 applies to communications with an unrepresented person.

Attorneys are prohibited from appearing disinterested in the client’s matter. See also

Restatement (Third) of the Law Governing Lawyers § 103. The comments to the rule

explain that, “[i]In order to avoid a misunderstanding, a lawyer will typically need to

identify the lawyer’s client and, where necessary, explain that the client has interests

opposed to those of the unrepresented person.” Thus, attorneys communicating with

custodians not represented by counsel must make clear whom they are representing when

seeking evidence in the matter.

E. Challenging Privileges Under Rule 502(d)

Model Rule 1.6(c) requires attorneys to protect against the inadvertent disclosure

of information related to the representation of a client. Due to the high volume of ESI

produced in litigation today, inadvertent disclosure of privileged documents has become a

significant issue. Federal Rule of Evidence 502 was adopted in 2008 to resolve disputes

among courts regarding when such inadvertent disclosures constitute waivers of privilege.

See Fed. R. Evid. 502 (2008 advisory committee notes). “[W]hile establishing some

201

exceptions to waiver, the rule does not purport to supplant applicable waiver doctrine

generally.” Id.

Rule 502(d) allows federal courts to “order that the privilege or protection is not

waived by disclosure connected with the litigation pending before the court—in which

event the disclosure is also not a waiver in any other federal or state proceeding.” In other

words, even in the absence of a stipulated protective order, courts may protect inadvertent

disclosures from waiving attorney-client privilege in the matter at hand as well as in other

proceedings involving different parties. Such an order may specify that privilege is not

waived even when producing parties fail to take reasonable care to prevent disclosure of

privileged documents. See, e.g., Brookfield Asset Mgmt., Inc. v. AIG Fin. Prod. Corp., No.

09 CIV. 8285 PGG FM, 2013 WL 142503, at *1 (S.D.N.Y. Jan. 7, 2013) (stating that

whether or not the defendant “dropped the ball” in its privilege review, the parties were

bound by the 502(d) order stating that there can be no waiver of privilege).

However, while Rule 502(d) is typically thought of as a “shield” protecting litigants

from a waiver of privilege, at least one court has also allowed it to be used as a “sword” to

force litigants to disclose to their opponents potentially privileged documents under a

“quick peek” procedure. For example, in Fairholme Funds, Inc. v. United States, 134 Fed.

Cl. 680, 686–87 (2017), the Court of Federal Claims ordered the disclosure of 1500

documents that the United States claimed were subject to a privilege. The court did so as a

means of expediting discovery in the matter, while making explicit that the disclosure did

not operate as a waiver of privilege, as provided under Rule 502(d). The terms of this

“quick peek” disclosure were as follows:

Specifically, the court orders defendant to provide plaintiffs with access to, at a location of defendant's choosing, the approximately 1500 documents plaintiffs seek to review. Upon reviewing the documents, plaintiff shall identify those documents it seeks to be produced. Defendant will then be given one last opportunity to review the documents identified by plaintiffs. If defendant still maintains that the documents are privileged, defendant shall so indicate. If, however, defendant no longer seeks to assert either the deliberative process or bank examination privilege over the documents, it shall produce the documents to plaintiffs. As to those documents over which defendant continues to assert a privilege, plaintiffs may file a motion to compel their production if they believe that those documents are not

202

privileged. Defendant will then provide the documents to the court for an in camera review.

Id. It should be noted that this holding has not been universally adopted, with at least one

other court expressing sharp criticism of Fairholme’s reasoning. See Winfield v. City of

New York, 2018 WL 2148435, *7 (S.D.N.Y. May 10, 2018) (“this Court does not agree

with Fairholme’s reasoning or reliance on Federal Rule of Evidence 502(d) as the basis for

its order”).

203

Thank Youfor choosing NBI for your

continuing education needs.

Please visit our website at www.nbi-sems.com for a complete list of

upcoming learning opportunities.

204