Northern District of Illinois Won't Categorize Withheld Email Attachments

The Tip of the Night for April 25, 2018, discussed an order in In re Broiler Chicken Antitrust Litig., No.16 C 8637 (N.D. Ill. Jan. 3, 2018), which gave detailed instructions on how to perform technology assisted review. This Tuesday, Magistrate Judge Gilbert issued another order in the same case denying the Plaintiffs'

Motion to Compel the production of email attachments, and modify the ESI protocol. See, In re Broiler Chicken Antitrust Litig., No. 16 C 8637, 2018 U.S. Dist. LEXIS 119536 (N.D. Ill. July 17, 2018).

Pursuant to the terms of the ESI protocol, the parties in this case did not have to produce non-responsive attachments to responsive emails. Instead a placeholder was to be inserted indicating that the attachment was withheld. The ESI protocol required the parties to meet and confer as to the information to be included on the placeholder, but they failed to do so. The protocol allowed any party to request the production of any document they had a good faith basis to believe was responsive. Judge Gilbert declined the Plaintiffs' request to exercise his inherent authority to identify certain categories of documents, and direct the Defendants' to identity the category that each withheld email attachment belonged to on the placeholder sheet. He notes that the Plaintiffs' could have requested additional information on the placeholder sheet, but simply failed to do so. He accordingly declined to "rewrite now the ESI Protocol that was agreed to and memorialized almost two years ago." Id. at *16.

Judge Gilbert suggested that the Plaintiffs might have a good basis to challenge the withholding of attachment if the email that had another attachment that was very important to the case. He distinguished this case from Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2011 U.S.Dist. LEXIS 95912, (S.D.N.Y. Aug.18, 2011), in which it was decided that non-privileged attachments to relevant emails can be produced. Unlike in Abu Dhabi, here the parties had an agreement that covered how documents were to be reviewed and produced. This case was also different from others in which documents only contained redactions and were not withheld entirely.

The Court also held that the categorization of the email attachments, given the protocol that was in place, would be unduly burdensome:

"Nevertheless,that is the procedure to which the parties agreed and what the Court ordered. Plaintiffs' request for relief in their Motion would place more burden on Defendants by changing the document review and production protocol near the end of a long process. That is not proportional to the needs of the case, and the Court sees no good reason to change the rules midstream." Broiler Chicken, 2018 U.S. Dist. LEXIS 119536, at *18-19.

Electronic Discovery Institute Course - Class 24: Evidence and Authentication

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on July 8, 2018. Go to https://www.lawinstitute.org/ to sign up for it.

The course on Evidence and Authentication is taught by Anthony Lowe, associate general counsel for Freddie Mac; Wayne Matus, head of eDiscovery for UBS AG; Kevin Brady, of counsel with Redgrave LLP; and Judge Paul Grimm of the District of Maryland.

Evidence

Electronic evidence has to be considered at the beginning of a case. One must consider the preservation of electronic evidence and the chain of custody for it. ESI, like any other form of evidence, will be reviewed as to whether or not it is relevant to the case. By its very nature ESI will be an out of court statement. IT people should conduct the preservation and collection of evidence.

Analyzing ESI

Judge Grimm noted that there is much less discovery in criminal cases than in civil cases. However digital evidence is often involved in criminal cases, and criminal attorneys are often more prepared to handle it correctly. Attorneys who practice civil law often lack the experience of dealing with evidence during a trial.

Authentication

Judge Grimm noted that FRE 901(a) says that you cannot offer evidence unless it is what it purports to be. Different types of electronic evidence will have to be authenticated in different ways. Email may be admitted as a business record, or as an admission. Either the text of a document or its metadata may be necessary for authentication.

Some types of evidence are self-authenticating, other require a witness and foundation. There are 10 methods of authentication under FRE 901(b). Rule 104(a), the preliminary determinations rule, also figures in the authentication process. FRE 901(b)(1) says that someone with personal knowledge of evidence can testify as to its authenticity. An expert under FRE 901(b)(3) can also authenticate evidence. Evidence can be authenticated under FRE 901(b)(9) if generated through a process capable of producing reliable results. FRE 902 addresses how evidence can be self-authenticating.

Generally, it's not necessary to authenticate email messages. Under Rule 104(a) the qualification of a witness may be questioned, and whether or not evidence is privileged can be challenged - the judge makes the determination. The judge will make most decisions on admission of evidence. Under Rule 104(b) the jury will decide on the relevance of evidence. Often when the jury does make such a determination, it is asked to rule on admissibility of electronic evidence.

Hearsay

Hearsay is an out of court statement that is offered to prove the truth of the matter asserted. The inherent nature of ESI causes 'fingerprints' to be generated showing how the evidence was stored. However electronic evidence may also be altered more easily than hard copy evidence. A prior witness statement; a prior consistent statement; and a statement of identification will not be considered hearsay. Business records, public records, and medical records may be exceptions to the hearsay rule.

Originals vs. Duplicates

The original writing rule states that either an original copy, or a exact duplicate must be offered into evidence.

Prejudice

The judge has to make a determination as to the probative value of a piece of evidence.

Qualifying an Expert Witness

Some judges may make the qualification of an expert witness more difficult than others. Some will require that an expert have the necessary knowledge to describe a particular subject to a jury.

Animation vs. Simulation

An animation is a graphic representation of event shown to a jury. A simulation is model based on algorithms to determine probabilities. The expert has to explain the simulation to the jury.

Technology & Evidence

Changing technology presents challenges for the preservation of electronic evidence. Young lawyers may be more accustomed to dealing with digital evidence.

Eastern District of Kentucky Denies Sanctions for Photos Posted Without Copyright Management Informa

On Tuesday, a decision was reached in Philpot v. LM Communs. II of South Carolina, No.5:17-CV-173-CHB, 2018 U.S. Dist. LEXIS 113927 (E.D. Ky. July 10, 2018) concerning infringement of a copyright on a photo of Willie Nelson which the Defendant used to promote a concert without obtaining the permission of the copyright owner.

Plaintiff was not able to submit evidence that the photo used by the Defendant had copyright management information associated with it, and only took a screen grab of the photo used on LM's web site. The Defendant filed a motion for sanctions under Federal Rule of Civil Procedure 37 because of the Plaintiff's failure to respond to the Court's discovery orders. The Court denied the motion for sanctions solely on the basis of the fact that LM Communications did not certify that it conferred with the Plaintiff in an effort to get the required responses. Philpot produced documents late, and then appeared for a rescheduled deposition which had been cancelled because of the missing document production.

The Plaintiff moved to sanction LM Communications for failing to preserve a native copy of the photo which it possessed when it received the cease and desist order, and sought an adverse inference that LM removed the copyright management metadata. The Court faulted the Plaintiff for redacting most of the contents of its cease and desist letter, which makes it impossible to determine if the Defendant was aware that evidence in the digital file was relevant to the Plaintiff's claim. Philipot inspected the photo on LM's website before it was deleted and did not find copyright management information. The absence of such information was not a basis for concluding that the Defendant had removed it.

"He suggests in a conclusory fashion that the file in Defendant's possession at the time it was removed from its website would have provided him more information about the absence of copyright management information than he could glean during his original investigation of this matter, but offers nothing more about what that information might be or how it is relevant to his § 1202 claim. This is not enough to support the sanction he seeks - an inference that Defendant removed the copyright management information. He would have this Court create a variation on res ipsa loquitur, such that posting a copy of an image without copyright management information speaks for itself - that the posting party must have removed it. The Court is unwilling to speculate and concludes that, if anything, only an inference that the image lacked the copyright management information is appropriate." Id. at *14-15.

The Court denied the Plaintiff's summary judgment claim for the removal of copyright information under 28 U.S.C. § 1202, but it did however grant the Plaintiff's motion for summary judgment on its copyright infringement claim.