Email Authentication: More Than Reading an Email

A Plaintiff sued after being a fraud victim in a “Nigerian advance fee scheme,” with emails allegedly from the Defendant’s CFO.  The email addresses at issue did not have the domain name of the Defendant, but instead yahoo.com and privatelcientsubs.cjb.net. Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011).

The Plaintiff transferred $51,000 in the hopes of getting $19 million a Nigerian bank.  Jimena, at *2.  Litigation followed after the Plaintiff did not get $19 million.

The Defendant moved for summary judgment, claiming the Plaintiff failed to offer admissible evidence, specifically the email messages involving the wire transfers. Jimena, at *7.

The Plaintiff offered an affidavit that discussed how the Plaintiff had personal knowledge of the “emails since I [Plaintiff] read them immediately after I receive them. Since the wire transfer transaction is important to me I take care that records of email are not deleted from the time they were sent to me up to the present time.” Jimena, at *10.

The Court found the Plaintiff’s affidavit was insufficient to authenticate the emails messages with personal knowledge under Federal Rule of Evidence Rule 901(b)(1).  The Court specifically held:

Plaintiff’s affidavit, by itself, is not sufficient authentication of the Standish E-mails. It does not provide any foundation that Plaintiff knows or had any prior communication with Clive Standish. There are no identifying characteristics that provide any foundation for linking the e-mails to Clive Standish. Plaintiff does not include an affidavit or deposition testimony from the purported author, Clive Standish, stating that he wrote the e-mails. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 777 (9th Cir. 2002) (concluding that letters and memoranda were not authenticated because Plaintiff did not submit an affidavit from the author stating that he wrote the letters and memoranda). Plaintiff also does not declare that he witnessed the writing of the Standish E-mails, only that he received them. See id. (“Mirch’s affidavit does not lay a foundation for Exhibit C. Mirch neither wrote the memo nor witnessed Geerhart do so, and he is not familiar with Geerhart’s signature.”). The Standish E-mails are not authenticated through personal knowledge under Rule 901(b)(1).

Jimena, at *11-12.

The Court further noted that the Plaintiff did not offer any deposition testimony of the purported author of the emails.   Jimena, at *11.

The Court ultimately found the following:

Considering the totality of the characteristics, Plaintiff has not laid a sufficient foundation nor evidentiary reliability to justify admission of the Standish E-mails. The Standish E-mails were unsolicited, contain only publicly available, self-serving information, and do not contain any substantive or unique information that supports authenticity.

Jimena, at *17-18.

Bow Tie Thoughts

Electronically stored information has not changed the basic rules of admissibility.  An affidavit that “I read the email” is by itself not enough to authenticate an email message by itself.  Having past experience or familiarity with the sender’s address may help, but offering publically available information likely will not win the admissibility battle.

One strategy of authenticating an email message is to directly question the purported sender in a deposition or have them submit an affidavit.  The questioning traditionally would ask if the witness recognized the exhibit, whether they wrote the email message and when they did so.

Where electronically stored information has changed the game is ensuring that the data was collected correctly, that no underlining metadata was changed and that the ESI was collected in a defensible manner.

‘Nuff Said on Imaging a Laptop

A Plaintiff sought the forensic image of a laptop after the producing party collected the responsive data and placed it on a thumb drive.  Magistrate Judge Nuffer denied the motion. Hansen v. Chevron USA, Inc., 2011 U.S. Dist. LEXIS 58488 (D. Utah May 31, 2011).

In the course of discovery, the Defendant stated in correspondence that a specific individual’s laptop is “where any relevant ESI would be stored.” Hansen, at *2.

The specific individual’s practice was to “print out hard copies of important e-mails in order to preserve the information in the appropriate paper files.” Hansen, at *2.  From the tone of the opinion, the laptop sounded like a personal laptop and the individual possibly a contractor, but the opinion is not specific.

The Plaintiff sought the Defendant to produce the individual’s laptop for an “independent, third-party forensic company, to perform an image copy, or flash image, of the hard drive for indexing, and later harvesting of relevant, non-privileged, information. . . .”  Hansen, at *2.

The Defendant opposed the plan, first challenging the Plaintiffs to show a deficiency in the paper document production and second proposing the individual go through his laptop and transfer relevant files to a thumb drive. Hansen, at *2-3.

The laptop contained propriety, confidential information concerning the Defendant and personal information from the individual, such as social security numbers and credit card information. Hansen, at *3-4.

The Defendant “loaded” the ESI from the laptop to the hard drive regarding the subject matter of the case.  The ESI included searchable ESI and PDF’s.  Hansen, at *3.

The Plaintiffs refused the thumb drive. Hansen, at *3.

The Court swiftly balanced the Federal Rule of Civil Procedure Rule 26(b)(2)(C) limiting factors in favor of the Defendants against forensically imaging the laptop.  The Court noted that the Plaintiffs did not explain their need for the forensic (byte by byte) image of the laptop, other than they “needed” it.  Hansen, at *5.  Coupling the fact the Plaintiff had not reviewed the thumb drive against the fact the laptop contained privileged information, the Court spent little time denying the Plaintiff’s motion. Id.

Bow Tie Thoughts

I am a strong supporter of target collections with portable devices.  In cases where a personal laptop is at issue involving family law to third-party contractors, it is an excellent way to save both time and money in collecting data.  Moreover, it can allow a party to collect directly folders or relevant files while avoiding a private individual’s life from being put on display for legal teams.

No one likes the idea of their tax information, credit card numbers, personal photos and private emails being harvested and reviewed by anyone, even if it their lawyer designating them “non-responsive” or “privileged.”  It is still an invasion.

However, I know many of my friends who are experts in data collection, and normally stoic former law enforcement, whose blood pressure must have skyrocketed at by idea of someone simply copying files over to a thumb drive.

There are numerous problems with this practice, from underlying metadata being changed to the lack of MD5 hash values and a long list of other issues that can fill an expert report.

With that said, there are targeted collection tools available that can provide far greater defensibility than simply copying data to a thumb drive. PinPoint Labs was one of the early proponents of this technology; Access Data Triage is one solution for creating a self-executing collection script on a thumb drive; Guidance EnCase Portable another; Microforensics Titan Collector is one option, as is Nuix Collector Portable.

Fact of the matter is, there are portable collection technologies on the market that can be configured by an expert to collect ESI based on search criteria and generate MD5 hash values and executed by a custodian who signs an affidavit that they used it correctly. A lawyer can then argue such a process created a reasonable, proportional and defensible collection methodology in Court.

The use of portable collection technologically is critical in State Court litigation, such as family law or unlawful detainer cases where cost is an issue.  However, parties should avoid the “fox guarding the hen house” situation of individuals self-selecting ESI without an attorney’s supervision or direction.  There might be situations where a single party has a handful of files and folders where proportionality favors that the data simply be defensibly copied by the individual, but that would highly fact specific.

The technology currently on the market can be prepared in advance for collection, given to a custodian for data acquisition, with affidavits then executed by the expert who prepared the collection device and the custodian who activated it. In short, every step needs to be documented with the mindset a Court may ultimately review the process.

I truly hope to see an opinion similar to this one validating the use of any of the portable collection devices in a lawsuit, whether it is in State or Federal court.  Not all litigants are Titans battling over patents; Portable devices that can collect targeted electronically stored information are necessary for the mere mortals involved in over 90% of litigation in the United States.

When Law Firms Die, Expect Discovery Delays

The iceberg in Trilegiant Corp. v. Sitel Corp., was the dissolution of Howrey LLP.

The Howrey partner representing the Plaintiff was able to line up a lifeboat before Howrey sank, but the Chicago Howrey office suddenly closed before he started at his new firm.

The client case files had not been delivered to the new firm, even through the client had requested they be shipped to the new office.  Trilegiant Corp. v. Sitel Corp., 2011 U.S. Dist. LEXIS 71815, 3-5 (S.D.N.Y. July 1, 2011).

In the maelstrom of the Howrey office sinking, the attorney had only a few hours to gather his belongings while abandoning ship.  The attorney was not allowed to take his client file with him.  Trilegiant Corp., at *4.

There were major problems in getting the case file from Howrey, including being promised delivery of files that never arrived and other files sent to an off-site storage facility without his permission.  Trilegiant Corp., at *4.

The attorney did not begin getting copies of his files until a month after the original court ordered production deadline.  Trilegiant Corp., at *4.  The last hard copy files did not arrive until May and were in disarray.  Trilegiant Corp., at *4-5.

The Defendant was not pleased with the delays.  They brought a motion to compel production of the delayed discovery and extend discovery by one year.  Trilegiant Corp., at *1-2.

The Court evaluated each discovery request subject to the motion to compel.  The Court granted the motion in part and denied in part. Id.

The Court ordered additional discovery to be answered by July 22, 2011. Trilegiant Corp., at *26. However, the Court showed the Plaintiffs a fair amount of judicial compassion.

The Court found in one request that there was undue burden in reviewing and producing the underlining discovery.  The Defendant was entitled to the information, but would bare the cost of searching for it.  Trilegiant Corp., at *10.

In multiple other discovery requests, the Court ordered the Plaintiff to produce responsive discovery by July 22 or be precluded from using the discovery themselves.  Trilegiant Corp., at *12-13.

In another situation, the Court stated that the Plaintiff could not produce what did not exist and there was no showing the Plaintiff had conducted inadequate searches.  Trilegiant Corp., at *14.

The Court ultimately found the following:

To the extent that Trilegiant has not yet produced all responsive documents, it shall do so by July 22, 2011. Despite Trilegiant’s admittedly late production, further sanctions are not warranted because the delay was caused by forces outside the plaintiff’s control: Howrey’s sudden dissolution and its resulting failure to forward Trilegiant’s case file promptly to Mr. Kliebard’s new offices.

Trilegiant Corp., at *19.

The court denied the Defendant’s request for a one-year extension.  Trilegiant Corp., at *24.

The Court explained that the Plaintiff had already produced the majority of its responsive discovery and the Defendant had had considerable time to review the discovery.  Trilegiant Corp., at *25.

The Court stated that one-month was sufficient for the Defendant to review any additional discovery and request any follow-up.

Bow Tie Thoughts

The list of examples is heartbreaking of the law firms and service providers that collapsed from the end of 2008 until now.  Even going back to the 2001-2002 timeframe, 100 year old firms in the San Francisco Bay Area dissolved, along with the titan Brobeck, Phleger & Harrison.  Whenever there is a dissolution, there are many talented attorneys and dedicated litigation support professionals left looking for work.

The impact of either a law firm or service provider failing can send extreme shockwaves through the legal system.  When it is a service provider hosting or storing data, there are serious questions of “where did my client data go?”  This obviously can bring discovery review and production to a grinding halt.

One horror story of a service provider failing had lawyers in Los Angeles looking for their data, which somehow ended up in Chicago.

No dissolution is orderly.  Trilegiant Corp. v. Sitel Corp., is a good example of balancing the interests of moving a case forward while accepting the reality of what caused discovery delays beyond the control of the attorneys handling a case.

Form of Production: Add that Topic to the Meet & Confer Check-List

The Defendants in Specht v. Google, Inc., sought of $21,951.16 for discovery costs.  $17,778.64 of that total was for creating digital versions of the discovery. Specht v. Google, Inc., 2011 U.S. Dist. LEXIS 68968, 9-11 (N.D. Ill. June 27, 2011)

As a general rule, such costs are taxable if the parties have agreed to produce discovery electronically.  Specht, at *9, citing Fast Memory Erase, LLC v. Spansion, Inc., No. 10-C-0481, 2010 U.S. Dist. LEXIS 132025, 2010 WL 5093945, at *5 (N.D. Tex. Nov. 10, 2010).

The Defendants had a significant problem in seeking their costs: There was no evidence the parties agreed to produce discovery electronically.  Specht, at *10.

The best the Defendants could produce was an email that an associate wrote for a partner to review and comment on.  Specht, at *9.

There was no evidence that the draft email had been sent to the Plaintiffs.  Specht, at *9.  Moreover, the draft email did not reference an actual agreement to produce hard copy discovery in electronic format.  Specht, at *9.

The email did reference producing metadata for specific ESI, however, the Court stated that the “Defendant has not adequately documented that an agreement existed between the parties to produce documents electronically.” Specht, at *9-10.

The Court found the $17,778.64 was not recoverable, because the Defendants did not show there was an agreement to produce documents electronically.  Specht, at *10.

Bow Tie Thoughts

This case illustrates the realities of modern litigation. The failure to document an agreement for producing ESI or hard copy documents in electronic format can result in costs for producing discovery denied.  It is a prudent topic to add to a meet and confer “to do” list.

Attorneys should discuss the form of production during the meet and confer process and codify their agreement in a discovery order.  Parties should discuss how databases should be produced, whether hard copy documents are to be scanned and OCR-ed, types of metadata to be produced and how costs should be apportioned.  These are just a few examples of topics for a meet and confer.

Establishing expectations on the above topics can help control litigation costs and put a party in a position of strength if there is a later dispute.

e-Discovery Game Theory: Meet & Confer Over Cost-Sharing

In a case involving 1^st Amendment and RICO allegations by two correctional officers, third-party electronic discovery was sought from different state law enforcement agencies. Couch v. Wan, 2011 U.S. Dist. LEXIS 68017, at *2 (E.D. Cal. June 23, 2011).

The Third-Party sought an order requiring cost-sharing of the electronic discovery.  Couch, at *10.

Cost-sharing in the Ninth Circuit applies the following factors from Zubulake v. UBS Warburg LLC:

1. Extent to which the request is specifically tailored to discover relevant information;

2. Availability of such information from other sources;

3. Total cost of production, compared to the amount in controversy;

4. Total cost of production, compared to the resources available to each party;

5. Relative ability of each party to control costs and its incentive to do so;

6. Importance of the issues at stake in the litigation; and

7. Relative benefits to the parties of obtaining the information.

Couch, at *10, applying Open TV v. Liberate Technologies, 219 F.R.D. 474, 476 (N.D. Cal. 2003), citing Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284 (S.D.N.Y 2003).

Cost-shifting is only triggered when the requested information imposes an “undue burden or expense” that outweighs the likely benefit of the discovery. Couch, at *10, citing Fed. R. Civ. P. 26(b)-(c).

The classic test for whether electronic discovery is unduly burdensome turns on whether the discovery is in a reasonably accessible form, which is controlled by the cost of production.  Couch, at *10.

The Third-Party reported that they collected electronically stored information from 16 computers that amounted to 140 gigabytes [Note, the collection term used by the Court was “downloaded,” so it is not clear what process was used in collecting the data]. Couch, at *11.

The Plaintiffs proposed they provide a list of search terms to reduce the email and text file data set.  The Third-Party agreed to the proposal, but claimed they did not have the resources to search the data.  The Third-Party claimed they needed an outside contractor to search the ESI, which would cost $54,000.

Based on the cost, the Court ordered the parties to meet and confer on cost-sharing on conducting the search terms for processing the discovery.  Couch, at *11-12.

Bow Tie Thoughts

The meet and confer process can easily turn into the classic Prisoner’s Dilemma. Cooperation in discussing solutions to e-Discovery issues might go against an adversarial system at first blush, but it could be the answer to avoiding motion practice and higher discovery costs.

I encourage parties to discuss the type of consultant to be used for conducting searches across a data set.  For example, whether the proposed individual for searching electronically stored information is an IT consultant or an e-Discovery consultant.  This is extremely important, because IT solutions to e-Discovery problems can be like buttering toast with a screw driver.

The screw driver can work, but it can take more time, drive up costs and run the risk of using the wrong tool for the job.

Attorneys should discuss at a Rule 26(f) conference what process and software the consultant is using for search term analysis, such as DT Search for testing search terms or more advanced software such as Nuix, AD Labs, OrcaTec, Clearwell or LexisNexis Early Data Analyzer. 

Anyone of these software applications used by someone trained in them should be able to reduce the data set of standard email and text files to responsive information to a discovery request similar to the one in this case at a reasonable cost.  Granted, exotic files can cause additional challenges, but again, this is an excellent topic for a meet and confer. 

Many attorneys falsely assume that using an e-Discovery consultant is cost-hibtative.  It would be very interesting to see RFP responses on the proposed cost of searching 140 gigabytes of email/text files and whether the responses are below $54,000.  This may turn on the number of search terms proposed, however, it would be an interesting experiment.