Pinning Down Admissibility


Admissibility of electronically stored information cases are almost always in criminal cases.

The Pinterest v Pintrips infringement litigation has excellent analysis by US District Court Judge Haywood Gilliam, Jr., on the admissibility of email messages and news articles in civil litigation.

Email Admissibility

Pinterest offered two email messages as evidence of confusion. Pinterest argued the emails put Pintrips on notice of confusion by third parties. Pinterest, Inc. v. Pintrips, Inc., 2015 U.S. Dist. LEXIS 76545, *2 (N.D. Cal. June 12, 2015). As such, Pinterest argued the evidence would be relevant to Pintrips state of mind for the allegation of willfulness and intent. Id.

The Court agreed the emails could be admitted for the non-hearsay purpose of showing Pintrips’ knowledge and intent. Pinterest, at *3. Moreover, Pintrips objections to the relevancy of the email went to the weight of the evidence, not its admissibility. Id.

The first email exhibit was a consumer email to Pintrips’ customer support regarding her password and log in credentials for her Pinterest account. Id. The Court held this email was relevant and admissible to show confusion. Id.

The Court rejected the hearsay exception arguments for the second email. The email was a message from a third party to Pintrip’s CEO with the statement, “[w]hen you say it out loud it sounds like [P]intrips . . .” Pinterest, at *4.

The Court explained the declarant was not expressing confusion herself at the names of the companies, but her opinion that the names sounded similar. Id. The declarant’s statement did not qualify under the “present sense impression” or “state of mind” exceptions to the hearsay rule and thus were inadmissible hearsay. Id.

The Court admitted both messages for the non-hearsay purpose of Pintrip’s knowledge and intent, however, only the first email exhibt was admitted as evidence of consumer confusion. Id.

Admissibility of News Articles

News articles, books, and releases were offered by Pintrips to demonstrate the generic uses of “pin” and “pinning” online. Pinterest, at *4-5. Pinterest opposed, arguing the prospective exhibits were hearsay. Pinterest, at *5.

The Court stated that there “can be no dispute that evidence of the use of the terms “pin” and “pinning”—both by media publications and other companies—is relevant to the Court’s inquiry.” Id.

The Court found that Pinterest had not cited any authority excluding news articles to show generic uses of terms in trademark cases. Pinterest, at *6. The Court noted that other courts had considered the materials for “the non-hearsay purpose of determining whether a word or phrase is used to refer to the specific goods or services of the plaintiff, as opposed to an entire class of goods or services in general.” Id.

The Court ultimately admitted the exhibits as “evidence that ‘pin’ and ‘pinning’ are words that companies and the media use to describe a particular action in the computing and internet context,” but not for the truth of the matter asserted in the articles. Pinterest, at *7.

Bow Tie Thoughts

Judge Haywood Gilliam, Jr., issued a solid opinion on the admissibility issues in this case.

We do not see many opinions on admissibility in civil litigation, because most civil cases do not get to trial. I have seen admissibility issues arise in summary judgment motions, but most of our admissibility cases are criminal.

The Pinterest v Pintrips litigation gives a good look at the admissibility of ESI in civil litigation. Admissibility is often not conducted in document review during the first pass because it increases time and review costs. I recommend issue coding for admissibility in large cases after the dataset has been narrowed down to what will be used in deposition and motion practice. If email, text messages, or social media posts need to be authenticated, depositions are an ideal time to seek those answers. Determining what exhibits need to be explored at deposition are ideal during admissibility review.

Are “Read Receipt” Emails Hearsay?

How do you authenticate “Read Receipt” auto-generated emails? Are the messages hearsay?

social-349528_1280This issue was raised by a Defendant who challenged “Read Receipt” emails generated by one of the Defendants after reading an email from the Plaintiff.

The Court rejected the argument that the “Read Receipt” email was unauthenticated hearsay. Fox v. Leland Volunteer Fire/Rescue Dep’t Inc., 2015 U.S. Dist. LEXIS 30583, 31-32 (E.D.N.C. Mar. 10, 2015).

The Court outright questioned whether a “Read Receipt” email was even a statement, which requires that an assertion is intended under Federal Rules of Evidence 801(a). The Court considered that even if an auto-generated “Read Receipt” email was a statement, it would be admissible against the Defendant because the email was created by the Defendant reading (or at least opening) the Plaintiff’s email message. This is an unique way of saying “Read Receipt” emails are party admissions under Federal Rule of Evidence Rule 801(d)(2)(A) and (D), because the message came from the Defendant’s work email for a matter he was supposed to investigate as part of his job function. Fox, at *30-31.

The Defendant argued the “Read Receipt” was not properly authenticated, because the Plaintiff failed to have a technical affidavit explaining how “read receipt” emails are generated for reliability. Fox, at *31.

The Court rejected the argument the Plaintiff needed to explain how Defendant’s auto-generated email was created. While there are times for technical affidavits, this was not one of them according to the Court. The Court explained that since the email was being admitted as a statement of a party opponent, the Court did not require a technical report to ensure the reliability of the email. Fox, at *31, citing Fed. R. Evid. 801(d)(2).

Bow Tie Thoughts

Authentication and hearsay are issues Courts deal with daily over electronically stored information. I am confident this was not the first Court to deal with the issue of “read receipt” emails, but it was the first I have seen.

I would argue the auto-generated message is not hearsay, because there is no statement from a human being. However, one could argue with a straight face such messages are statements, because the data generated from the time it was read and the sending of the message is an assertion of fact. That being said, finding the “read receipt” message was a party admission was a very clever argument.

If You Also Love Evidence 

I have loved Evidence since law school. I am very happy to be doing a webinar with Guidance Software on the Admissibility of Electronically Stored Information on April 8, 2015, with Judge Matthew A. Sciarrino, Jr. of the Kings County Supreme Court, Kathleen F. McConnell, Esq., of Seyfarth Shaw LLP, and Chad McManamy, Esq., Vice President of E-Discovery and Assistant General Counsel for Guidance Software. If you would like to learn more and attend, you can register at here. I am really looking forward to the webinar.


Swabbing the Decks of Admissibility

Working as a deckhand can be extremely dangerous. There are plenty of reality TV shows with fishermen, tugboats, and salvage crews to highlight the risks professional mariners face daily.


What is also risky in litigation is posting on social media information that could hurt your case.

In Newill v. Campbell Transp. Co., a former deckhand brought motions in limine to limit social media evidence and other testimony in what apparently was a trial over a shipboard injury.

Red Skies in the Morning

The Plaintiff attempted to preclude the Defendant from introducing Facebook posts that showed the Plaintiff could engage in physical activities, despite his claimed injury. Newill v. Campbell Transp. Co., 2015 U.S. Dist. LEXIS 4350, 1-2 (W.D. Pa. Jan. 14, 2015).

The Defendant sought to introduce Facebook posts that the Plaintiff engaged in “painting, landscaping, flooring, going to the gym, undercoating a truck, and going physical.” Newill, at *2. The Plaintiff further offered his skills as a handyman on social media. Id.

The Court held that the Facebook posts that reflected physical capabilities that were inconsistent with his claimed injury would be allowed at trial. Id. However, if during the trial the Plaintiff felt a social media exhibit was overly embarrassing, the Plaintiff could challenge that specific post under Federal Rule of Evidence 403 at that time. Newill, at *3.

Red Skies at Night

The Defendant had a witness [presumably an expert] who was to testify that the Plaintiff’s Facebook posts “probably [were] not giving the employers a good impression,” was simply speculation and thus not admissible. Newill, at *4. This might have been different if there was some evidence that the connected the Plaintiff’s employment status to his social media posting, but none was offered. Id.

Bow Tie Thoughts

I am an Evidence geek. Love it as much as the Rules of Civil Procedure. The difference is Evidence goes to the heart of a trial: What is admissible?

There are many attorneys who think of social media as an epic “gotcha” game with the opposing party. There is no question that the cases where someone who claimed a back injury has posted Facebook video of themselves riding a mechanical bull riding is highly relevant to the lawsuit. However, the fundamental issue with any social media post is it must be relevant to the case. If the information is not relevant, then it is inadmissible.

This case shows an interesting mix. Posts that were relevant to the case could be used at trial, but the Plaintiff could challenge them under FRE 403. Alternatively, testimony that was purely speculative about the Plaintiff’s posts precluding him from getting hired for another job was not admissible.

As with any evidence, ask is this social media relevant to the case? Is there a casual connection to what is trying to be proven? Performing such analysis should help save time conducting document review of social media in discovery.

Stored Communication Act (SCA) & Admissibility of Text Messages

A Defendant convicted of murder and attempted murder challenged the admission of three text messages at his trial. The Supreme Court of Arkansas found no error in admitting the text messages.


The Stored Communication Act

The Defendant challenged the admission of the text message content based on the Stored Communication Act. The SCA challenge included three separate arguments:

The State incorrectly used a prosecutor’s subpoena to obtain the text messages rather than a search warrant, as required by the SCA;

The Government’s acquisition of the substance of the text messages via subpoena violated his constitutional rights under the Fourth Amendment to the United States Constitution;

The State conducted an illegal search under the Arkansas Constitution.

Gulley, at *3.

The State argued the Defendant failed to preserve his claims under the SCA and State Constitution for appellate review. As to the 4th Amendment argument, the State claimed the argument was without merit because the text messages were procured by prosecutor’s subpoena pursuant to a statutory power granted to state prosecutors without any allegations of abuse of power. Gulley, at *4.

The Court agreed the Defendant failed to preserve the Stored Communication Act and the State illegal-search arguments for appeal. Gulley, at *4.

Admissibility of Text Messages

The Defendant challenged the admissibility of the text messages on hearsay and authentication grounds.

The hearsay argument quickly failed, because the issue preserved from the trial was another sender’s text messages on hearsay grounds, not from the Defendant’s text messages. As such, the Defendant could not change arguments on appeal, thus resulting in the hearsay argument being barred from review. Gulley, at *17-18.

However, there was enough of a challenge as to whether the Defendant sent the messages to preserve an authentication argument.

Arkansas Rule of Evidence 901(a) states that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” Gulley, at *18. Moreover, “the testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to authenticate evidence, and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence.” Gulley, at *19, citing Ark.R. Evid. 901(b)(1) &(4).

The Court reviewed each text message and held each was properly authentication by witnesses with knowledge, plus other circumstances showing authenticity. Gulley, at *19.

The first text message was properly admitted based on the testimony of three witnesses and the contents of the message, which demonstrated sufficient facts to authenticate the text message. Gulley, at *19-20.

The second message stated, “I’m getting dropped off over there.” One witness testified that the phone number was assigned to the Defendant and another witness testified to seeing the Defendant dropped off near the victim’s apartment before the murder. Based on the testimony and the timing of the message to the victim’s murder, the Court held authentication was proper. Gulley, at *20-21.

The third text message focused on the content of the message and witness testimony. The message included in part, “Dat’s okay too, I got a car out of the deal…” Gulley, at *21.

The witness testified that the Defendant had called her from the phone number that also sent her the text messages. Moreover, the witness knew the victim assisted the Defendant in financing a car, which was evidenced in the statement, “I got a car out of the deal.”

The Court held all the evidence was sufficient to authenticate the text messages were sent from the Defendant and each was properly admitted at trial. Gulley, at *21-22.

Bow Tie Thoughts

How we live surfaces in how we litigate. Additionally, while civil cases have addressed many eDiscovery issues, criminal cases have addressed admissibility issues of ESI.

Here is a very important take away from admissibility: the same rules of evidence apply to ESI just as they have applied to everything else for 200 years.

Text messages are one of the most common forms of ESI today. For example, teens are estimated to send 60 text messages a day (boys around 50; older girls around 100). Put in other terms, approximately 1.5 trillion text messages were sent in 2009. That number will only go up as more people have smartphones.

What does this mean for civil and criminal litigation? First, the ESI must be preserved. There are many technologies that can preserve text messages, from a collection directly off the phone, to texts backed up to a computer, to screen shots, to photos of the phone, to from the service provider. Second, attorneys cannot forget to request the ESI if text messages are relevant to a case. Third, the same rules of admissibility apply, just as they have applied for the last 200 years.

PhotoCop & The Red Light of Admissibility

Are photos and data from a red light camera hearsay?  The answer is “no” according to the Court of Appeal in People v Goldsmith and conflicts with People v. Borzakian, discussed on the blog Developments in California Trial Practice.

Goldsmith also addressed whether the admission of computer-generated photographs and a video of the traffic violation were unsupported by evidence that the computer operated properly. People v. Goldsmith, 203 Cal. App. 4th 1515, 1518 (Cal. App. 2d Dist. 2012).

The California Supreme Court has held that that “our courts have refused to require, as a prerequisite to admission of computer records, testimony on the ‘acceptability, accuracy, maintenance, and reliability of … computer hardware and software.’ ” Goldsmith, at *1523.

California Courts understand there might be errors with computer records; however, the witness offering the records can be questioned on cross-examination about any errors. Goldsmith, at *1523.

As the Court explained:

Evidence Code sections 1552, subdivision (a) and 1553 establish a presumption that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. Thus the images and information (including the date, time, and location of the violation and how long the light had been red when each photograph was taken) imprinted on the photographs are presumed to accurately represent the digital data in the computer. Goldsmith produced no evidence that would support a finding of the nonexistence of this presumed fact. Therefore the trier of fact was required to assume the existence of the presumed fact. (Evid. Code, § 604.)

Goldsmith, at *1522-1523.

As such, the California Court of Appeal found there was no error in admitting the computer-generated photos from the red light camera, because there was no evidence offered to show the red-light camera was not functioning correctly or issues of errors raised on the cross-examination of the police officer offering the evidence. Goldsmith, at *1524.

Is the PhotoCop Testifying?

The Defendant claimed the photos and data imprinted on them were hearsay. Moreover, the Defendant claimed the State did not prove the business records or public records exceptions to the hearsay rule applied to the computer-generated reports. Goldsmith, at *1525.

The Court of Appeal did not agree, holding the photos and video were not hearsay, thus the hearsay rule did not apply. Goldsmith, at *1525.

Pursuant to California Evidence Code section 1200(a), ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Pursuant to California Evidence Code section 1200(b), hearsay evidence is inadmissible, except as provided by law. Goldsmith, at *1525.

California Evidence Code section 175 defines a “statement” as being made by a “person,” which by definition does not include a computer. As the Court explained:

The Evidence Code does not contemplate that a machine can make a statement, and a printout of results of a computer’s internal operations is not a “statement” constituting hearsay evidence.

The hearsay rule stems from the requirement that testimony shall be tested by cross-examination, which can best expose possible deficiencies, suppressions, sources of error, and untrustworthiness that may lie beneath a witness’s bare, untested assertions; the hearsay rule should exclude testimony which cannot be tested by such cross-examination. It is not possible, however, to cross-examine computer-generated photographs or videos. (Nazary, supra, 191 Cal.App.4th at pp. 754–755.)  As “demonstrative evidence,” photographs and videos are not testimony subject to cross-examination, and are not hearsay. Thus the hearsay rule did not require their exclusion from evidence.

Goldsmith, at *1525-1526.

The Court specifically stated they disagreed with People v. Borzakian (2012) 203 Cal.App.4th 525, because the Borzakian Court did not cite the rule that “that testimony of the accuracy, maintenance, and reliability of computer records is not required as a prerequisite to their admission, and did not agree that computer-generated photographs are not hearsay evidence.” Goldsmith, at *1526.

Bow Tie Thoughts

The Rules of Evidence are creatures of statute to ensure the trustworthiness of legal proceedings, burdens of proof and accurate factfinding (See, Evidence, 3rd Edition, Mueller & Kirkpstrick, Aspen Publishers). Without the Rules of Evidence, proceedings could turn into the Wild West.

Electronically stored information is still “new” to many attorneys, despite social media and smartphones being a societal norm. Many attorneys have significant trouble with ESI in discovery and even more difficulties with the Rules of Evidence.

Computers do not make statements; computers produce data. Human beings make statements and are the ones who program computers, maintain the machines and set parameters for producing reports. If there is a challenge to the evidence, it is best explored either on cross-examination of the witness offering the computer-generated report. Another option is to offer evidence of errors with the computer-generated report with another witness. However, the Rules of Evidence do not require the proffering party to disprove any possible errors as a condition of admissibility if no issue has been raised.

I am presented a webinar on Admissibility of ESI for iConect on March 29, 2012.  If interested in learning more about the Admissibility of ESI from Relevance to Unfair Prejudice, you can view the webinar on the iConect website. The password is Purple.

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 and 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.

I, Hearsay: Computer Generated Reports as Testimony

Is a computer generated printout a statement according to the hearsay rules?  California law says “no.”  People v. Nazary, 2010 Cal. App. LEXIS 2207 (Cal. App. 4th Dist. Dec. 31, 2010)

People v. Nazary is an appeal from an embezzlement conviction.  Part of the evidence offered against the Defendant included computer generated printouts (receipts).  The Defendant opposed the computer generated evidence as hearsay, because the receipts were “offered for its truth to establish that he had stolen money…” Nazary, at *52-53. 

This raises the computer age-old metaphysical issues of whether a computer is a “person” who can make a statement.  To the eternal dismay of science fiction fans, the Court of Appeal did not once invoke Hal 9000 or reference the Outer Limits “I, Robot” trial. 

The Court of Appeals did, however, review the California Rules of Evidence. 

California Evidence Code 1200(a) defines Hearsay as follows:

“[E]vidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated”; 

Nazary, at *53. 

A “statement” is defined under California Evidence Code section 225, as follows:

 “(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression”;

Nazary, at *53. 

A “person” is defined under California Evidence Code section 175 as “a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.” Nazary, at *53. 

In the words of the Court of Appeal, the California Evidence code “does not contemplate that a machine can make a statement.” Nazary, at *53.  However, the witnesses who described the computer generated reports, plus how the computer generated the reports, were subject to examination for the jury.  Nazary, at *54-55.

As the Court of Appeal explained, the admissibility issues with the computer generated reports were foundational.  The issue was whether the computer was operated correctly or possible data errors.  These issues could be addressed by the cross-examination of the expert who used the computer system.  Nazary, at *54.

The Court of Appeals found the receipts were machine generated and thus not hearsay.  Nazary, at *54-55. 

The “Hearsay Rule” requires “testimonial assertions shall be subjected to the test of cross-examination.”  Nazary, at *55.   In the words of the Court, there was “no possible scenario” where the computer system could have been cross-examined.  Nazary, at *55. 

However, those who used the computer system to create the receipts were subject to cross-examination.  Nazary, at *55.  The evidence of machine error were presented for the jury, which was all that was required under California law.  Id.  

Bow Tie Thoughts

Computers do not take an oath to tell the truth and testify in court.  One day, we might live in that science fiction world.  Given that one can fly across the United States with an Internet connection in 5 hours is something that would have been science fiction to someone 90 years ago, do not be surprise if our grandchildren live in a world where a computer can testify as to how data was generated.