E-Mail as Evidence
-
Upload
dan-michaluk -
Category
Health & Medicine
-
view
987 -
download
1
Transcript of E-Mail as Evidence
JOHN D. GREGORYDANIEL J. MICHALUK
June 11, 2009
Email as Evidence
2
Email as Evidence
OutlineDefinitionsRelevanceAccessProductionAdmissibility and WeightCase studies
3
Definitions
Email and e-messages1970s
Classic email (SMTP)1980s
Bulletin boards, MUD1990s
Web mail, ICQ, computer-generated or –received faxes2000s
IM, Social networks, Twitter Remix of all of the above VOIP? (Skype = voice + image + IM) Multiplication of carriers : e-messages in the cloud
4
Relevance
Why focus on email issues? It’s still the killer app
Everybody uses email and (more or less) understands it Can be particularly potent evidence – Gates, Black,
Poindexter Information in transit: special issues
Multiplicity of repositories Jurisdiction Communications/speech issues with content Impermanence
Paradigm case Raises many issues in strong ways that appear elsewhere Evolves quickly – the answers keep changing
Access
Law The traditional “no expectation of privacy” view The balancing of interests approach The beyond control approach
And practice What employers should do
Access
No expectation of privacy view Notification does count The employer owns the medium and has lots of good
reasons to look E-mail communication is too insecure to expect
privacy
Access
The balancing of interests view Lethbridge Community College (2007) MS Hotmail e-mails retrieved through forensic
analysis First case to impose a reasonable grounds
requirement for investigation
Access
The beyond control view Who controls non-work related records? Beyond control view
Johnson v. Bell Canada (September 2008) University of Ottawa (December 2008)
Back to reality MO-2048, City of Ottawa (April 2009)
Access
Practical options for employers Do something! Option #1 – Try harder to control expectations
despite personal use But how far will notice take you?
Option #2 – Give in, and implement privacy controls Proportional audit/surveillance framework Investigation standards (reasonable suspicion)
10
Access
Emerging challenges Email may be overtaken by other means of
communication So…how are you going to deal with employees who
conduct business in the “cloud” Businesses should set policy to ensure business is
done on business systems only
11
Production
E-mail retentionVolume and spread of email is both practical and
legal challengeSo: retention policies = destruction policies
Email is often on a ‘short’ list for retention At least pressure to move off server, sometimes auto-
delete unless actively saved Maybe some relevance test applied as well
Limit: reasonably likely to need it in litigationThis can be an e-discovery issue or a trial issue
Remington case (1998) – is retention policy reasonable? Broccoli v Echostar (2005) – 21-day retention of emails
12
Production
Privilege waiver – the internal counsel problemGenerally one does not produce privileged
information.
What is privileged, in-house? If you copy counsel on all internal emails, all the
emails do not become privileged. Separate business advice from legal advice
There is no deemed undertaking rule for evidence led at trial.
13
Production
Privilege waiver – employee emails on employer systems
A practical problem for employer counsel among others
Case law on privilege is different from case law on investigations, audits and surveillance
What must you do to shield yourself from a “poisoned client”?
14
Admissibility and Weight
Proving a digital object is different
Vulnerability of information composed of presence or absence of electric current What happens when the power goes off? When the
system crashes?
Malleability of information Easy to change undetectably
Presentation in the courtroomMobility multiplies the issues
15
Admissibility and Weight
The elements of documentary evidence: dealing with the differences
Authentication Is this record what it purports to me? Admissibility if foundation laid to support that conclusion The cutting edge of e-evidence including email evidence today
Best evidence rule What is an original electronic document?
Hearsay Does the medium matter? Exceptions wide (reliability) or focused (business records?) It’s not always hearsay (e.g. mechanical evidence)
16
Admissibility and Weight
The Uniform Electronic Evidence Act (where enacted)
“Solutions” to electronic application of these rulesAuthentication: codify
Count on the witness under oath (not saying who) Challenge is in responding to challenges (expertise,
availability of foundation evidence)Best evidence: system not document
Presumptions in aid: it matters whose system it is Standards in aid
Hearsay: do nothing Possible spillover effect of other rules
17
Case law
Not much of interest on UEEA R. v. Bellingham (AB) needed evidence of what printouts were
Leoppky v Meston (AB) – demonstrates several things: Court looks behind computer to actual sender A series of emails can satisfy Statute of Frauds Still had missing link i.e. legal rules still apply
Nad Business Solutions (ON) – email as course of conduct
Singapore vs England: email headers OK or not OK as evidence capable of supporting Statute of Frauds
Lorraine v Markel (NJ) – extreme demands (all obiter) Prove lots about system, manner of production, etc
18
An extreme case?
“The focus is not on the … creation of the record, but rather on the … preservation of the record during the time it is in the file”
“The entity’s policies and procedures for the use of the equipment, database and programs are important. How access to the … database [and to the specific program are] controlled is important. How changes in the database are logged, as well as the structure and implementation of backup systems and audit procedures for assuring the continued integrity of the database, are pertinent.”
• In re Vee Vinhee, US appeal court, 2005.
19
CGSB Standard
Canadian General Standards Board: Standard on electronic records as documentary evidence
The key rule of the Standard: think about it! In other words:
Make a policy about how e-records are managed Communicate the policy Implement the policy Monitor compliance with the policy Adjust the policy as required by circumstances
Have a policy manual that you can point to.Have someone responsible (CRO) (+ witness)
20
New e-messages: Challenges
Webmail, Facebook/MySpace, TwitterAs you go into the cloud, it is harder to:
Authenticate (go to ISP not ASP) Figure out and prove the ‘system’ whose reliability one
would like to count on (or at least appreciate) No standardization – every application is different (not like
SMTP) Consumer oriented – so less rigorous than business systems Proprietary – so codes etc are not readily available
Are clouds third party providers in ordinary course of business, i.e. should they be considered reliable?
21
Admissibility and Weight
Email problem #1 – You didn’t send that
Employee alleges termination on basis of pregnancy Email pre-dates her pregnancy by two months
showing bona fide intent to terminate Proponent can testify
22
Admissibility and Weight
Email problem #2 – I didn’t send that
Agreement to arbitrate executed through employer’s intranet
Execution by entering SSN or employee ID number plus password
Supervisors could reset passwords Supervisor resets password to help employee get access Email confirmation sent to employee Employee claims supervisor executed agreement and
denies reading confirmation email
JOHN D. GREGORYDANIEL J. MICHALUK
Email as Evidence