The UPC and the admissibility of electronic records

Note that the Uniform Photographic Copies of Business and Public Records as Evidence Act, 28 U.S.C§ 1732, states that:

“If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. “

So even if an original has been destroyed, an accurate copy can be submitted in court. The UPA has been adopted by a majority of states. It was originally passed in 1951 in order to address the admissibility of records stored on microfilm.

Overview of Email in Viewpoint

Elite Discovery's Viewpoint platform has a relationship analyzer which can provide metrics on email data. In the analyzer, a list of domains is shown in the left pane, and a list of individuals is shown on the right. The respective tables will show how many outgoing and ingoing emails are available for each domain and individual.

Clicking on an individual name will pull up another pane which will have multiple tabs listing all of the email addresses associated with the individual; the email addresses of the individuals that this selected individual has exchanged messages with; and a line graph plotting the number of emails including the selected individual across a date range.

The analyzer will also create a circular schematic which shows how emails are exchanged between domains and individuals. Each domain is designated with a color on the outer rim of the circle. Hovering over the inner rim of the circle will make captions pop up showing a specific email address. Lines across the center of the circle visualize communications between different domains and users.

The relations map has blocks for each domain which are sized to reflect their proportion of emails in the system. It's possible to drill down to an individual email level with similarly proportioned blocks. Color coding is used to show how most of the emails for an individual have been coded for relevancy.

It's possible to QC the coding decisions by right clicking an individual block in the chart, and selecting 'Build View', an option which is available on the other tabs as well.

When Does a Party Control ESI?

Courts have adopted three different tests that determine when a party controls electronically stored information.

The Legal Right Standard - adhered to by the 3d, 5th, 6th, 7th, 10th, & 11th Circuits - provides that a party will control ESI when a contract states that it owns it.

Under the Legal Right Plus Notification standard a party is obligated to disclose to a requesting party that the third party has possession of its electronic files, and if it is aware that a party has access to the data then it must disclose this as well.

The “Practical Ability” Standard states that a party must produce ESI it can readily obtain.

The Sedona Conference has rejected this last standard, and states that a party should have actual possession.