Proving Conspiracies with Electronically Stored Information

There is no shortage of people utilizing technology to facilitate illicit or questionable actions.  Below are two recent examples.

Price Fixing Conspiracy

In In re Static Random Access Memory Antitrust Litigation, the Plaintiffs alleged the Defendants engaged in a ten year conspiracy to fix and maintain artificially high prices for Static Random Access Memory (SRAM).  In re Static Random Access Memory Antitrust Litig., 2009 U.S. Dist. LEXIS 110407 (N.D. Cal. Nov. 25, 2009). 

For those not familiar with SRAM, it is a memory device that cannot retain data without a power supply.  In re Static Random Access Memory Antitrust Litig., at *28.  SRAM is used in many electronic devices, including the following: 

(1) The communications market in cell phones and Voice Over Internet Protocol (VOIP) technology;

(2) The computer market in servers, mainframes, high-end computer workstations, and personal digital assistants (PDAs) and smart phones; and

(3) The networking communications market in routers, switches, proxy and gateway devices, modems, storage area networks and firewalls.

In re Static Random Access Memory Antitrust Litig., at *28. 

The Plaintiffs claimed the Defendants, who controlled sixty to seventy percent of the market share of total SRAM sales, engaged in price fixing through email, phone and in person communications.  In re Static Random Access Memory Antitrust Litig., at *28-29.

The recent opinion certified the case as a class action.  This will be an interesting case to watch for the technology involved and what emails appear as evidence supporting the Plaintiff’s claims. 

Another Text Message Helping Prove a Drug Dealing Conspiracy

In a factually protracted drug enforcement case, the Court found enough circumstantial evidence to support the Defendant’s conspiracy conviction. United States v. Alejandro, 2009 U.S. App. LEXIS 25271, 7-8 (5th Cir. Tex. Nov. 17, 2009)

One trial exhibit was a text message that stated: “Pat knows where I can find a dub?” Alejandro, at *7.

The Court went on to define “Pat” was short for Patrick, the Defendant’s first name.  Additionally, the Court explained “dub” was a code word for $200 worth of crack. Alejandro, at *7.

While there was other evidence, such as drug scales and a co-conspirator’s purse with a large amount of cocaine, the text message obviously was damaging evidence.  Alejandro, at *7.

Bow Tie Thoughts

Civil discovery and criminal prosecutions will continue to find text messages, emails or social networking status messages as the smoking gun evidence.  Lawyers must consider the broader scope of discovery that includes these highly transitory forms of electronically stored information.

Admissibility of Email Strings and Co-Conspirator Emails

The Federal Rules of Civil Procedure are frequent superstars spotlighting requests and production of electronically stored information in case law.  Whether or not such discovery is admissible is another story. 

Park W. Radiology & Park W. Circle Realty v. Carecore Nat’l Llc, 2009 U.S. Dist. LEXIS 110282 (S.D.N.Y. Nov. 19, 2009) is an extensive opinion addressing the admissibility of email in motions in limine. 

Admissibility of Email Strings

The Plaintiff attempted to exclude an email string pursuant to the Federal Rules of Evidence 402 (Relevancy), 403 (Prejudice), 608 (Character Evidence/Witness Conduct), and 609 (Impeachment by Evidence of Conviction of a Crime). Park, at *8.

The email string contained the statement, “I was hoping that her friends would want to have sex with [sic] me after they saw the ring.”  Park, at *8. As one can imagine, the Plaintiffs argued the email was irrelevant and highly prejudicial if it somehow was relevant.  Park, at *8.

The Plaintiffs further claimed the email chain contained attorney-client communications.  Park, at *8.

The Defendants in turn argued the email was relevant in showing the bias of one of the Plaintiffs’ trial witnesses.  Park, at *8-9. 

The Court held the section of the email string that could show bias of a trial witness was relevant. However, the section stating, “I was hoping that her friends….” was so prejudicial that it outweighed any relevance it had in showing bias.  As such, that section would need to be redacted for trial.  Park, at *9.

Planning a Conspiracy on Email 

The Defendants sought preclusion of emails from a doctor as hearsay between nonparties (Federal Rule of Evidence 802).  Park, at *39. 

The Plaintiffs claimed the email chain showed a conspiracy because a doctor who was affiliated with the Defendants’ Board of Managers “suggested” to the other doctors on the email that the Defendant was “unlawfully controlling the market for imaging centers and suggesting a business decision agreeable to the conspiracy.”  Park, at *40. 

The Plaintiffs argued that the emails were not hearsay, because they were statements between co-conspirators under Federal Rule of Evidence Rule 801(d)(2)(E). Park, at *40. This provision requires the existence of a conspiracy and the participation of the declarant in furthering the conspiracy.  See, Federal Rule of Evidence Rule 801(d)(2)(E).

The Court issued a “preliminary” denial of the Defendants’ motion in limine to exclude the email messages.  Park, at *40-41.  The Court would allow the use of the email exchange, if the Plaintiffs could meet the co-conspirator requirements of Federal Rule of Evidence Rule 801(d) (2) (E).  Id.

Bow Tie Thoughts

Attorneys and vendors often get wrapped up in the production and review of electronically stored information.  This is with good reason, considering the volume of ESI that can appear in discovery.  However, litigation tends to be over the 10 or 20 key documents that prove a party’s case to the jury.  Being ready for any admissibility challenges can help avoid your case theory getting derailed by motions in limine to exclude a key email or instant message.

Attorneys can help prepare for the admissibility of electronically stored information while doing document review.  Coding fields can be set up for issues such as “Relevant,” “Authentication,” “Best Evidence,” “Hearsay” and “Probative Value vs Unfair Prejudice.”  Reviewing attorneys can consider the admissibility factors as they are performing document review, which may impact their choices on which documents to ultimately use in trial or mediation.

It Takes Two to Tango…and Form a Conspiracy over Text Messages

tangoA “conspiracy” is an “agreement by two or more persons to commit an unlawful act.”  Black’s Law Dictionary, Pocket Edition, 1996. 

Like a tango dance, a conspiracy takes a partner.  However, the number of people in a conspiracy can quickly make it look like a square dance, with everyone needing to follow the dance calls to complete the conspiracy. 

 Under Federal Rule of Evidence 801(d)(2)(E), statements “by co-conspirators are properly admissible as non-hearsay if (1) a conspiracy existed; (2) the declarant and the defendant were both members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy.” United States v. Peck, 2009 U.S. Dist. LEXIS 17634 (D. Utah Mar. 6, 2009). 

 In U.S. v. Peck, 2009 U.S. Dist. LEXIS 17634 (D. Utah Mar. 6, 2009) the defendants were in a conspiracy to 1) steal and sell cars and 2) drug running. 

 One of the defendants sent a co-defendant text messages with Vehicle Identification Numbers (VIN).  These text messages were in furtherance of the auto theft conspiracy.  However, there was no evidence the sender who provided the VINs was part of the drug trafficking conspiracy.  As such, the sender of the text messages was not part of the entire conspiracy. 

 The defendant who sent the text messages picked a dance partner, put on his dancing shoes and made it to the dance floor.  However, he did not make the song request for the drug trafficking arm of the conspiracy.  If he had, he would have been a member of both arms of the criminal conspiracy. 

 Both civil and criminal cases will see text messages, instant messages or tags on social networking sites come into play into lawsuits.  Whether they are non-hearsay, present sense impressions or party admissions will be the subject many court opinions to come.