Wednesday, March 29, 2006

Yet Another Electronic-Evidence-Being-Tossed-on-Hearsay-Grounds Case

Recall our earlier discussion of a California bankruptcy case, where the judge refused to admit records that had been stored electronically on the ground that the records were hearsay (which they obviously were) but did not qualify for the business records exemption (which surprised the proponent to no end apparently). In that case, the judge felt that the person put on to authenticate the records, purporting to act as the custodian of the records under the evidence rules, did not adequately lay a foundation for the exemption because he could not describe the software and how it worked well enough for the judge to believe that the system was trustworthy and deserving of the exemption.

The USDC for the Southern District of Illinois has just tossed out yet another proffer of electronic evidence. In this case, it involves a case where the plaintiff was suing on libel grounds arising out of a posting that had been published on a web site. The 'webmaster' of the site offered up the IP address that identified the poster of the offending comment, which was apparently the only serious way to complete the chain between the anonymous comment and the defendant. The evidence was proffered with an affidavit of the webmaster, who was not available at trial. The defendant objected to the evidence on hearsay grounds, and suggested that the webmaster's foundation was inadequate to admit the evidence under the business records exemption.

The advent of the computer age has created evidentiary issues and admissibility concerns.

With that opening, the court went on to excoriate the plaintiff's efforts, suggesting that it should have done simple acts by preserving the webmaster's testimony during the discovery phase. The court noted that such evidence would need to cover "specificity as to the manner in which the information was retrieved, the software used, or the method of preparation[. Plaintiff's failure to do so] makes the information provided in [webmaster's] affidavit less than trustworthy, and therefore, inadmissible [under the business records exemption]." (emphasis added) Having severed the only way to connect the dots to the defendant, the judge went on to dismiss the plaintiff's case with prejudice.

The case is Wendler & Ezra, P.C. v. American International Group Data Center, Inc. et al (USDC S.D. Ill. No. 04-CV-641-WDS, March 15, 2006). (Ed.: So far, I can only find for-pay links to a copy of the opinion -- If anybody can find a no-charge link please let me know.)

An anomaly or the coming trend? Well, to paraphrase (and sanitize) Arlo Guthrie -- One person doing it is probably crazy, two people doing it are probably crazier, but three persons doing it -- They're likely to think it's an organization. We have at least two judges on record in only the last few months -- And I doubt that they will fall into the even crazier camp over the course of time.

The biggest message I think out of this is NOT that electronic records are somehow suspect or suddenly a huge barrier to litigants. On the contrary, the judges in both of these cases have acknowledged that these records would probably have been admitted had the proper foundation been laid. In both instances, the attempt to use a custodian of records who was overly succinct and/or vague was viewed as inadequate to lay the foundation of trustworthiness that business records should be afforded. Does that mean that the webmaster in the new case ran a bad shop? No. Does that mean that the credit card company kept poor business records of its customer accounts? No. It mostly means that attorneys who want to take these records and get them into evidence need to take the time to understand how things work. It's the lawyer's job to convince the judge that proffered evidence is something we should trust not because it's been output by wizards who work in the basement, but because the judge can see through an easy to understand and transparent explanation of the system in order to trust it. An attorney who takes the time to understand the technology, to interview the person (or persons) who will take on the custodian role, and who makes a compelling presentation on how the system is trustworthy and that the records accurately reflect the proffered evidence will be much less likely to hit the roadblocks found in these two cases. The attorney who continues to ignore this knowledge and apply it does so at the attorney's peril.

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