Alextronic Discovery
Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM

Wednesday, January 14, 2004

Here Say... Here Say... an ode to Hearsay  

Here Say... Here Say... an ode to Hearsay

When we were in law school leaning about the Hearsay rule (an out of court statement made by another not subject to cross examination and is offered to prove the truth of the matter or issue asserted is considered inherently unreliable) and the many exceptions that swallowed the rule... none of us (except those of us budding litigators born during the Reagan administration) could have ever envisioned that these rules and exceptions would ever apply to the Apple II+ and Vectra 286 computers buzzing in the background.

Today as we communicate primarily though electronic data, the hearsay rule has sprouted up in a fashion that would make Tom Hanks feel like he was still the preschooler he was in the movie "Big".

Think about it. Nearly every e-mail one creates and nearly every Word or Wordperfect document hammered out as well as almost all spreadsheets and html creation are hearsay by their very nature. These documents are usually communications and they are rarely created by an individual placed under oath and subject to cross examination. Hence when the astute 21st century litigator thinks that he or she is the most savvy and slick cat on the street since Rudy Ray Moore by introducing processed electronic evidence, be advised that such a submission screams out to the opposing party "claim Hearsay... claim Hearsay!" Thus, the damaging evidence can be possibly excluded based on the tried and true Hearsay rule.

But... wait... what's that up in the sky? Coming to the rescue is the mighty hearsay exception which effectively swallows the hearsay rule and allows the e-evidence into play.

But how does the hearsay exception work in the world of digital evidence? Consider these variations of the conventional application of the hearsay exception:

1. Usual Business Records Exception - Now data that is entered into spreadsheets or interoffice memos (attached to e-mail messages or not) can come in under this rule.

2. Excited Utterance - Believe it or not, this could work via live chat or ICQ or IRC. Imagine this chat... Broker writes "Hey investor remember that inside tip, I told you about... I am confident about my source and the stock is certain to tank tomorrow."

Investor replies (instantly): "Stupendous! Buy me 1000 shares right now! ! ! !"

This dialog would overcome hearsay by way of the excited utterance (chat) of the investor.

Similarly, the Present Sense Impression - can come in as an exception when one logs on to the network at work and quickly comments on something that appears out of the ordinary on the system or the like.

The Recorded Recollection hearsay exception would come in if an individual routinely tracks his or her thoughts or recollections in a digital media. This blawg itself could possibly qualify as such an exception. Calendaring software and digital diaries would certainly qualify.

Admissions and Statements made Against Interest are routinely dug up in e-mail messages and possibly chatboards and the like.

Finally, the Character Reputation would be a bit more difficult, but if a web page is offered and the page consists of comments by others on the reputation or proclivities of a party and that party's reputation is at issue, this may work as well.

In sum, the more things change the more they stay the same. The hearsay rule and its exceptions seem to stand and perservere.

posted by Alexander | 8:13 PM


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