Civil Subpoenas for ISP Email Accounts

A basic tenet of electronic discovery courses is that providers of online email and document accounts are not required (or permitted) to produce data in response to subpoena in civil actions. The law that prevents ISPs from doing so is the Stored Communications Act, 28 U.S.C. 2701-2712. The data can only be disclosed with the consent of the account holder. There are exceptions for grand jury subpoenas, and certain kinds of government subpoenas. Some courts have held the SCA also prevents the disclosure of customer records (email addresses, account access times, etc.) as opposed to just the content of the messages or documents.

Video Surveillance

If a party takes video surveillance of another party (for example to demonstrate that he is faking the extent of injuries claimed in a tort case) it may be considered work product. Upon receiving a request to produce or interrogatories on the issue, the party taking the video will have to disclose its existence, but may not have to produce the video unless it intends to introduce it as evidence at trial. See Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D. Pa. 1973). However if it does intend to use it at trial, the video taking party may be allowed to introduce the video to a witness at a deposition first, before production, in order to preserve the impeachment value of the video evidence.

However a static video made by a surveillance camera in a store may not be considered work product. See Target Corporation v. Vogel, 41 So. 3d 962 (Fla. 4th DCA 2010). The Florida District Court of Appeal held that, "the video in this case was not protected work product, prepared 'to aid counsel in trying the case.' Id. Rather, it was a video of the accident itself, discoverable evidence under the Rules of Civil Procedure, which are designed 'to prevent the use of surprise, trickery, bluff and legal gymnastics.' Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 111 (Fla.1970). Even if the photographs of the accident scene are characterized as work product, given the circuit court's broad discretion in overseeing discovery, we find no abuse of discretion in the order requiring their production before Vogel's deposition."

United States v. Scholle & the Introduction of Computer Evidence

If your firm is introducing computer evidence in court, be aware that a stronger foundation may be required for computer evidence than regular business records. Part of the basis for this is a decision by the 8th Circuit, United States v. Scholle, 553 F.2d 1109 (8th Cir. 1977). In this admittedly ancient decision (in terms of digital technology) the court found that a party presenting computer evidence has to show evidence of how data for its system was collected, how the data is maintained in the system, and how the extracted data to be presented was retrieved. The Scholle standard calls for a "more comprehensive foundation".

Scholle concerned "novel evidence of a computer printout representing a compilation of information concerning cocaine exhibits" from the DEA that was presented in a case brought against defendants charged with importing and distributing cocaine. The computer records showed that there was an unusual chemical in the cocaine. They came from the System to Retrieve Information from Drug Evidence (STRIDE) which held data on drug samples analyzed by several DEA labs in the United States. Evidence of benzocaine in both cocaine seized by one party importing it, and another party distributing it, was presented to show a chain of conspiracy.

The court acknowledged that a judge has broad discretion to determine the relevancy of computer evidence and noted that FRE 803(6) specifically included "data compilations" in the category of records which can be admitted without the testimony of the person who prepared them when they are made in contemporaneously in the regular course of business. The court held that:

"Even where the procedure and motive for keeping business records provide a check on their trustworthiness (United States v. Fendley, supra), the complex nature of computer storage calls for a more comprehensive foundation. Assuming properly functioning equipment is used, there must be not only a showing that the requirements of the Business Records Act have been satisfied, but in addition the original source of the computer program must be delineated, and the procedures for input control including tests used to assure accuracy and reliability must be presented. "

While the Court of Appeals held that the District Court did not err in admitting the evidence from the STRIDE system, it criticized the weak foundation for the evidence. While the originator of the system testified adequately about the source of the data in the system, no evidence was shown about the procedure for confirming the reliability of its input into the system.

"In evaluating the admission of the disputed printout, we must consider the reliability of what goes into the computer as well as the reliability of what comes out."

While there have been later Court of Appeals decisions holding that computer records should be treated like any other evidence, it remains advisable to follow the Scholle standard. See the Wikipedia article on Digital Evidence.