Divorce and E-Discovery:

Locating, Obtaining, Introducing and

Restricting Admission of Electronic Evidence

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

WEDNESDAY, APRIL 9, 2014

Presenting a live 90-minute webinar with interactive Q&A

Honorable Scott Beauchamp, Associate Judge, 301st District Court, Dallas

Jessica Hall Janicek, Attorney, KoonsFuller, Southlake, Texas

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-961-9091 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail sound@straffordpub.com immediately so we can

address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

For CLE purposes, please let us know how many people are listening at your

location by completing each of the following steps:

• In the chat box, type (1) your company name and (2) the number of

attendees at your location

• Click the SEND button beside the box

If you have purchased Strafford CLE processing services, you must confirm your

participation by completing and submitting an Official Record of Attendance (CLE

Form).

You may obtain your CLE form by going to the program page and selecting the

appropriate form in the PROGRAM MATERIALS box at the top right corner.

If you'd like to purchase CLE credit processing, it is available for a fee. For

additional information about CLE credit processing, go to our website or call us at

1-800-926-7926 ext. 35.

FOR LIVE EVENT ONLY

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

April 9, 2014

Electronic Discovery

6

April 9, 2014

Electronic Discovery

7

Federal Rules of Civil Procedure

✤ Applicable Sections

✤ 16, 26, 29, 30, 31, 33, 34, 36, 37 and 45

8

Obtaining Information in Electronic or Magnetic Form

Requesting party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced (Rule 34).

Rule 34 allows requesting party to choose format for production.

9

Sources of Electronic Data

✤ Computers (desktop or laptop)

✤ Hard drives or personal backups

✤ Removable media devices (floppy discs, tapes, CDs, ZIP drives)

✤ Optical discs

✤ Network storage (hard discs, remote internet storage or backups)

✤ Portable media (PDAs, cell phones, camera phones, iPods, iPads, MP3 Players, Tablets)

✤ Internet Service Providers and other types of computer systems

10

Common Data Types in Divorce Cases

✤ Voice Transmissions

✤ Audio tape

✤ Cell phones

✤ Voicemail

✤ Video messaging

11

Common Data Types in Divorce Cases

✤ Mobile Devices (PDAs, Cell Phones, Tablet devices)

✤ Calendars

✤ Text messages (SMS/MMS)

✤ Notes

✤ Digital photos

✤ Address books

12

Common Data Types in Divorce Cases

✤ Computer Generated Data

✤ Spreadsheets

✤ Computer simulation

✤ Emails

✤ Information downloaded from GPS devices

13

Common Data Types in Divorce Cases

✤ Video Transmissions

✤ Cell phones

✤ Computers and web cameras

✤ VHS

✤ Surveillance cameras

✤ Video cameras

✤ Internet accounts (YouTube, etc.)

14

Other Types of Data

✤ Active/Online data

✤ Near-line data

✤ Archival or backup data

✤ Data on backup tapes

✤ Erased or damaged data

✤ Hidden data or metadata

15

What is Metadata?

✤ Metadata is data about data

✤ Noteworthy examples

✤ Change tracking, document revision

✤ Cell comments (Excel)

✤ Hidden text

✤ Could contain privileged information

17

Removing Metadata

Google “office find and remove hidden metadata”

18

Native Electronic Format

Refers to the file format which the application works during creation, edition, or publication of a file.

19

How to Get the Information

✤ Requests for Production

✤ Interrogatories

✤ Admissions

✤ Deposition Testimony

✤ Requests to Gain Access to Electronic Devices

20

Creative Requests for Production

Introductory language should include any data or electronic media stored in any computer system or in any cloud system utilized by the opposing party, or which the opposing party has access to.

21

Creative Requests for Production

Request should specifically be made that the electronic data be produced on a CD-Rom disc or zip drive in a version readable under Windows XP or higher, Notepad or Wordpad.

22

RFP Introductory Language

✤ Specifically request that electronically stored data stored on backup tapes be produced.

✤ Specifically request that electronically stored data that has been deleted, but is recoverable, be produced (Ex: Facebook).

23

RFP Example

All letters and correspondence, including electronic writings (for example, including, but not limited to, e-mail, text messages, instant messages, twitter posts, facebook messages, snapchats, whether or not deleted that can still be recovered), between WIFE and any of your agents or employees...

24

RFP Example

For the relevant time period to the present, all documents, correspondence, electronic writings, or other written memoranda, printouts, and screen shots pertaining to any social networking site where you have or have had an account or membership, including but not limited to twitter.com, myspace.com, match.com, eharmony.com, perfectmatch.com, Yahoo Personals, true.com and facebook.com.

25

Digital Media RFPs

✤ Request the production of digital, downloadable media accounts.

✤ “For every iTunes account used, associated with, utilized by or operated by Husband, produce a copy of the iTunes account information, including, but not limited to, a copy of all music, applications, podcasts, videos, or any other media downloaded on Husband’s iTunes account.”

26

iTunes Music

27

iTunes Applications

28

Amazon Kindle

29

Android Applications

30

Farmville, Word Challenge, and other Facebook Applications

31

Objections

✤ OBJECTION: This Request is unduly burdensome, involves unnecessary expense, and/or made for the purpose of harassment. The burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

32

Objections

✤ Note that if you are requested to produce electronic data in all it's forms, including inaccessible data as defined by Zubulake, you want to object to that being unreasonable to obtain and expensive. A cost shifting analysis may need to be performed before production occurs.

33

Objections

OBJECTION: Objection is made to this request to the extent it asks for information not yet available because said request is premature.

Note this is very appropriate for settlement negotiation questions in interrogatories.

46

Interrogatories

47

Interrogatories

✤ Number each party is permitted governed by stipulation, court order, or statute.

✤ Parties are generally limited to 25

✤ FRCP 33(a)(1).

48

Discrete subparts

✤ Each discrete subpart of an interrogatory is considered a separate interrogatory

✤ 33(a)(1)

✤ What is a discrete subpart?

✤ Most district courts ask whether the particular subparts are logically or factually related to the primary question. Madison v. Nesmith, No. 9: 9:06-CV-1488 ; 2008 WL 619171, at *3 (N.D.N.Y. Mar. 3, 2008)

49

Objections—Interrogatories

The subparts contained herein ask for information logically and/or factually related to the primary interrogatory, therefore, an objection to any interrogatory herein under FRCP 33(a)(1) is not permissible.

50

More on Interrogatories

If the answer to an interrogatory may be derived or ascertained from a party’s business records, including electronically stored information, the responding party may answer the interrogatory by specifying and, if applicable, producing the records or allowing the other party to inspect and copy the records. (FRCP 33(d)).

Specifically applies to ESI.

51

Objections

52

Initial Disclosures—Rule 26

✤ Rule 26(1)

✤ Unlike some states, no initial request required to start this process.

✤ Requires “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment”

53

Initial Disclosures—Rule 26 (cont.)

✤ Rule 26(f)

✤ When is initial disclosure sent?

✤ Generally within 14 days of the Rule 26(f) conference, unless a different time is set by stipulation or court order, or unless a party objects during the Rule 26(f) conference that initial disclosures are inappropriate.

54

Initial Disclosures—Rule 26 (cont.)

✤ Rule 26(f)

✤ What happens at the initial discovery meeting?

✤ All parties are required to sit down together before the discovery process begins and agree on a discovery protocol.

✤ Issues of privilege, spoliation, and obtaining and delivering ESI are involved in this meeting.

✤ Failure to participate can result in sanction under Rule 37(f).

55

Other Methods of Discovering Electronic Evidence

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER, ELECTRONIC PROTECTIVE ORDER AND MOTION TO GAIN ACCESS TO IPAD AND IPHONE

TEMPORARY RESTRAINING ORDER, ELECTRONIC PROTECTIVE ORDER, AND ORDER ON EMERGENCY MOTION TO GAIN ACCESS TO IPAD AND IPHONE

56

Who Pays for ESI?

Zubulake

✤ As long as data is accessible, responding party bears the costs.

✤ When data becomes inaccessible, a cost-shifting analysis is applied, and the parties share the costs.

57

What Types of Data Are “Inaccessible” Under Zubulake?

✤ Online Data (hard disks)

✤ Near-line Data (optical disks)

✤ Offline Storage (magnetic tapes)

✤ Backup Tapes [INACCESSIBLE]

✤ Fragmented, Erased, and Damaged Data [INACCESSIBLE]

58

Cost Shifting Test Under Zubulake

✤ The extent to which the request is specifically tailored to discover relevant information;

✤ The availability of such information from other sources;

✤ The total cost of production, compared to the amount in controversy;

✤ The total cost of production, compared to the resources available to each party;

✤ The relative ability of each party to control costs and its incentive to do so;

✤ The importance of the issues at stake in the litigation; and

✤ The relative benefits to the parties of obtaining the information.

59

Spoliation Letters

✤ The “litigation hold”

✤ Instruct to preserve

✤ Preserve both paper and electronic form

✤ Include the length of time for the hold

✤ Any specific information necessary

60

Spoliation (cont.)

✤ Zubulake (sanctions for the destruction of evidence)

✤ FRCP Rule 37 (codifies Zubulake):

✤ “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

62

Facebook Subpoena

63

Facebook Subpoena

64

Other Social Media Subpoenas (AOL)

65

Other Social Media Subpoenas (Craigslist)

66

Other Social Media Subpoenas (MySpace)

67

Why Facebook has changed the face of divorce

68

69

Tell your kids about your divorce before you post to Facebook!

70

More Facebook Fails

71

Text Messages

✤ Most carriers keep content for only mere hours

✤ Example:

✤ ATT—Does not retain content

✤ Verizon—3 days

✤ Sprint—Does not retain content

✤ T-Mobile—Does not retain content

72

Electronic Evidence

73

LORRAINE V. MARKEL AMERICAN INS. CO, 241 F.R.D. 534, (D. Md. 2007)

74

PREQUISITES TO ADMISSIBILITY OF ESI

Relevant

Authentic

Hearsay

Original or Duplicate

Probative Value vs. Unfair Prejudice

75

EMAILS

U.S. v. Safavian, 435 F. Supp. 2d 36 (U.S. D.C. 2006)

CERTAIN EMAILS ARE NOT HEARSAY

Statements attributable directly to the sender (party) are admissions by party opponent. TRE 801(e)(2)

Where it is demonstrated that the contents of the emails indicate that sender (party) manifested an adoption or belief in the truth of the statements of other people as he forwarded their emails – these emails are adoptive admissions. TRE 801(e)(2)(B)

76

U.S. V. SAFAVIAN, 435 F. SUPP. 2D 36 (U.S. D.C. 2006) EMAILS SHOWED STATE OF MIND OF PARTY AT THE TIME HE RECEIVED THEM OR AT SOME LATER TIME. TRE 803(3) EMAIL NOT HEARSAY BECAUSE NOT INTRODUCED TO PROVE THE TRUTH OF THE EMAIL’S CONTENTS. IT IS THE FACT OF THE DISCUSSIONS, RATHER THAN THE CONTENT (OR THE TRUTH OR ACCURACY THEREOF) THAT IS BEING OFFERED. AN INQUIRY IS NOT AN ASSERTION OF THE TRUTH AND CANNOT BE A HEARSAY STATEMENT.

77

“Non-hearsay work” emails

Emails containing an imperative statement giving instructions, how to do something – are not offered to prove the truth of the matter asserted.

“Let’s do a meal so we can start getting business ideas moving”

Emails containing explicit or implicit requests for assistance.

“Do you know if that is doable, and how?”

Emails soliciting an opinion.

“What do you think about this?”

U.S. V. SAFAVIAN, 435 F. SUPP. 2D 36

(U.S. D.C. 2006)

78

Co-conspirator Hearsay Exception Theory. TRE 801(e)(2)(E)

In determining whether a conspiracy existed and whether both the defendant and the declarant participated in it, hearsay is admissible, so long as it does not exclusively rely on the co-conspirator statements.

79

CHAT ROOM LOGS

Criminal defendant complained of trial court’s admission of chat room logs b/c the logs were incomplete and undetectable material alter-ations could have been made.

80

The creator of the logs explained how they were created.

That the printouts were complete and accurate (accuracy goes to weight, not admissibility)

Connection was established between Defendant and print outs (it was his screen name, and at a meeting scheduled with that screen name, he showed up).

U.S. v. Tank, 200 F.3d 627.

81

EMAIL AUTHENTICATED BY DISTINCTIVE CHARACTERISTICS

Verkonyi v. State, 276 S.W.3d 27 (Tex. App. – El Paso 2008)

TRE 901(a) says that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what it’s proponent claims.

TRE 901(b) includes a list of non-exhaustive examples

82

VERKONYI V. STATE, 276 S.W.3D 27 (TEX. APP. – EL PASO 2008)

TRE 901(b)(4)

Distinctive characteristics and the like. Appearance, content, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.

An email is properly authenticated if its appearance, contents, substance, or other distinctive characteristics, taken in conjunction with the circumstances, support a finding that the document is what the proponent claims.

83

EMAIL AUTHENTICATED BY REPLY LETTER DOCTRINE

Verkonyi v. State, 276 S.W.3d 27 (Ct. App. – El Paso 2008)

A letter (email) received in the due course of mail (email) purportedly in answer to another letter (email) is prima facie genuine and admissible without further proof of authenticity.

A reply letter (reply email) needs no further authentication because it is unlikely that anyone other than the purported writer would know and respond the contents of the earlier letter (email) addressed to him.

84

WEBSITE

Breach of Contract.

Defendant attempted to put in evidence recording and writing from its website.

Attested true and correct copy of company overview printed from website and excerpts from news interview on website.

85

OUT

Didn’t establish the website was that of the Defendant.

“Most anyone can create a website”

It may be arguable that most information found on the internet is what it purports to be, “we cannot assume that all of it is.”

Burnette Ranches v. Cano Petroleum, 289 S.W.3d 862 (Ct. App. – Amarillo 2009).

86

Bitcoins

87

Bitcoins

• Digital currency that is completely virtual.

• All transactions on-line

• Users are untraceable.

• Kept in an anonymous on-line wallet.

• Transferrable anywhere in the world.

88

Jessica Hall Janicek KoonsFuller jjanicek@koonsfuller.com Honorable Scott Beauchamp 301st District Court Scott.Beauchamp@dallascounty.org