Electronic Discovery - Can Contents of My Electronic Communications Be Used As Evidence in Court?

Online communications: "Meet me online so we canobtained in discovery, the government actor or
talk privately for all to read."private individual must still adhere to discovery
The use of electronic internet devices such asrules and search and seizure requirements. Here
computers, laptops, cell-phones and smart phones,are some notes to consider regarding the various
has led to an explosion of readily availableforms of ESI:
information. The web has become a literalE-mail
smorgasbord of data - facts galore, sports statsUnder the EPCA, e-mails are protected from
heaven, and the latest teenage nonsense can allimproper disclosure by third parties both in
be accessed at the touch of a button, or thestorage and in transit. The Federal Rules in 2006
touch of a screen. The sheer amount of "stuff"specifically named e-mails as ESI and therefore
can seem at times more like a virus outbreakthey are discoverable as long as the proper
than an explosion, or like a tidal wave that wipesprocedures are followed. Two main points in the
out the casual web surfer.discovery of e-mails are the temporary nature of
Even more accessible than before are oure-mails, and the level of specificity required in the
communications. Social networking sites have putwarrant or discovery request.
the very corners of our private life on blast for allIn a 2003 case, Zubulake v. UBS Warburg 217
to see and read. The latest posts and statusF.R.D. 309 (S.D.N.Y. 2003), a great deal of effort
updates let everyone know where we've been,was expended during the case in trying to prove
what we ate, what we think about the latestthe existence of certain e-mails. In this case, the
movie, what we're going to wear tomorrow - thee-mails sought were never found, nor was it
list is as endless as our observations of theproven that they were destroyed, and the court
minutest details of our minute-to-minuteruled that they did likely exist. UBS was
existence.sanctioned heavily for not preserving information
And our conversations are getting memorialized inthat might be subject to discovery. The case
the form of comments and instant messages,illustrates how important it is to be timely in the
sometimes allowing random intruders to interjectproduction of ESI, because it is subject to being
in our sophisticated discussions of the mosterased or deleted.
recent happenings. "Who is this person again?" isIn another 2003 case, Theofel v. Jones-Farley 341
not an uncommon question when chatting with anF.3d 978 (2003), a lawyer requesting production
online "friend".of e-mails was sanctioned for not specifying the
As these internet devices are used more anddates of the e-mails requested (he had requested
more for "private" communications, the questionthat all of the company's e-mails be produced).
begs to be asked, "Can my electronicThis case demonstrates that in discovery of ESI,
communications be used as evidence in courta lawyer needs to be very specific as to which
against me?" In general, the answer to this ise-mails are requested. Courts need to be able to
"yes" - this information can be used, subject toidentify which e-mails are relevant to their opinion;
various limitations, during what is known as theif they cannot do so, the discovery request will
discovery process of a trial. What follows is abe denied.
discussion of the basic applications of discovery toText Messages, Instant Messages, and Chats
electronic information.Text messages, Instant Messages (IM), and Chats
What is "The Discovery Process" in General?are all ESI and are treated like e-mails for the
In general, evidence gathered during the pre-trialpurposes of discovery. Therefore they are
phase of a lawsuit is known as discovery. Duringdiscoverable. Many users of text and instant
the discovery phase, each party is allowed tomessage believe that because their messages are
request documents and other items from theexecuted on a mobile phone, their communications
opposing side. Following the Federal Rules of Civilare deleted once sent. However, most service
Procedure (FRCP), these documents and itemsproviders keep a record of texts and IM's for
are entered into the record to be admitted asanywhere from one to three months after they
evidence. If a party is unwilling to produceare sent. Also, after the Zubulake case,
documents for discovery, the other party maycompanies are much more wary of clearing
force them to hand over the evidence usingmessages from their database, especially if the
discovery devices such as a subpoena.message is "potentially discoverable" in a pending
Usually the objects produced during discoverycase.
tend to be documents and records kept on file byText messages and the like can also present
a person or a business. Some items are notproblems with timeliness, as they tend to be
admissible as evidence. Examples of items thatdeleted from the database even more quickly
may not be reached during discovery are thosethan e-mails. Also, most texts do not have a title
protected by the attorney-client privilege, or itemsas do e-mails, so they can be cumbersome to sift
that have been illegally seized by warrant.through for the relevant information. They are still,
What is "Electronic Discovery"?however, discoverable.
In legal parlance, electronic discovery, orSocial Networking Websites
"e-discovery" refers to discovery of ElectronicallyInformation posted on sites such as MySpace or
Stored Information. Electronically StoredFacebook is definitely considered to be ESI and
Information, or "ESI" is an actual legal termsubject to discovery. This means that anything
adopted by the Federal Rules of Civil Procedure inposted by a profile owner that is incriminating
2006. ESI refers to information that is created,could be used against them in court as electronic
stored, and used in digital form, and requires theevidence.
use of a computer for access. Such informationAttorneys now regularly search such networking
may take the form of documents, e-mails, websites such as MySpace and Facebook to gather
site addresses, and digitally stored photographs.information that might be relevant to their cases.
ESI is subject to the basic principals that governThis might involve identifying witnesses, or
the discovery phase. Once admitted as evidence,collecting statements that might add testimonial
ESI becomes "electronic evidence".weight to their case. Also, photographs posted
However, because ESI is a relatively recentonline can be used in various ways to establish a
phenomenon (legally speaking), and because of itscase. Therefore profile owners should be wary of
unique nature, there are various rules andposting any information that might be used
statutes that are unique to e-discovery.against them in court.
E-discovery can often be much more demandingTo date there have been no major corporate
than traditional discovery, both time-wise andlegal cases that relied heavily on the production of
financially, because of the enormous amount ofdiscovery information from social networks such
information that can be stored on a computer.as Facebook or Twitter. A recent Canadian case,
Which Laws Govern E-Discovery?Leduc v. Roman 2009 CanLII 6838 (ON S.C.), held
Federal Rules of Civil Procedure (FRCP)that information posted on websites such as
As mentioned, the basic rules governingFacebook must be disclosed upon request even if
e-discovery are the Federal Rules of Civilthe person has blocked public access to their
Procedure (FRCP). Specifically, Rule 16 wasprofile. It probably won't be long before we see
amended in 2006 to include ESI. The greatestsome major American cases dealing with the
contribution of FRCP to the discussion ofproduction of evidence from social network sites.
e-discovery is the term ESI.Most legal cases involving social networks and
The U.S. Constitution: 4th Amendment Search andprivacy have been the other way around: the
Seizure rules applywebsite intruded on people's privacy with invasive
Under the U.S. Constitution, electronically storedadvertisement. Perhaps the reluctance to involve
information is subject to the same 4thsuch information in litigation is that these websites
amendment protections guiding the search andare very new to the scene. Also, most
seizure process. Some of these 4th amendmentcompanies agree that e-discovery in a social
inquires include whether or not the person has anetwork setting can be a potential nightmare. As
privacy interest in the property, and whether thewith texts, there are usually no titles in much of
police obtained a valid search warrant in seizingthe information posted, not to mention the
the property. As we will see, in the realm ofvarious applications and different features of such
e-discovery, obtaining valid search warrant is asites. Finally, most attorneys would prefer to rely
central theme of the discussion.on traditional forms of evidence such as witness
The Electronic Communications Privacy Act oftestimony, before relying on information from
1986 (EPCA)networking sites.
Born out of old-school wiretapping legislation, theMore recently, the Philadelphia State Bar
EPCA is one of the main legislative Acts affectingAssociation has published an opinion regarding
e-discovery. This federal statute prohibits thirdattorneys' use of third parties to obtain
parties from intercepting and using electronicinformation from social networks. The opinion
communications without proper authorization. Thestated that an attorney should not use a third
term "third parties" applies to both governmentparty in order to gain access to a person's profile,
actors and private citizens. "Proper authorization"for example, by asking someone else to make a
has been subject to scrutiny, since manyfriend request in order to remain anonymous.
websites often contain questionable disclosureAlthough information on social network sites is
agreements. The Act protects communicationsdiscoverable, attorneys and state officials must
that are either in storage or in transit.still abide by rules of ethics and professional
While the EPCA does secure a good amount ofconduct.
privacy for the electronics user, it has been theA Final Note: Creative Lawyering and E-Discovery
target of much criticism. For example, the ActFinally, remember that it is not always the
initially did not protect e-mails while they were incontent of electronically stored information that
transit. However, later cases ruled that this wouldcan be incriminating. ESI can be used in many
defeat the entire purpose of the Act, sincecreative ways. The information might be used to
e-mails are transient at least once in theirprove a required element of a crime, such as the
existence. E-mails are now protected both inperson's mental state, or a person's location in a
storage and in transit.particular place. For example, if a suspect's alibi
Another criticism of the Act is that it is not verymight be questioned if a computer log shows that
difficult for government actors to find waysthey were actively online at a different place.
around the "proper authorization" requirement. AllCreative lawyering means that a lawyer will use
that the agent would need to do is state that theany information to prove their case, and they
information was relevant to issues of nationalmight do so in ways not commonly imagined.
security, i.e., counter-terrorism. Therefore aSo, it is to your benefit that you be aware of the
proper warrant is relatively easy to secure if thepossibility of electronic information being used as
agent could justify a seizure of the ESI based onevidence. Obviously, posting incriminating evidence
anti-terrorism theories. Also, warrantless seizuresis unwise, but bear in mind that information can be
are easily justified on such a theory. Many of theused in a variety of ways. Even seemingly
concerns with anti-terrorism became moreharmless conversations can be used to prove guilt
complicated with the passage of the Patriot Actin a court of law. And statements that other
of 2001, which gave government agents evenpeople post on a user's profile are also fair game.
more access to ESI.It is nearly impossible not to be involved with ESI
Popular Categories of ESI that are Discoverablein some way or another, but a little common
Courts have ruled that basically all forms of ESIsense can go a long way.
are discoverable. As stated, in order for ESI to be