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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.com - 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


Monday, January 12, 2004

Preservation Putz  

Preservation Putz

To my classmates at Hebrew School, I was known as the Putz because I used to show up without my homework.

No the dog didn't eat it and I wasn't hiding a failure to perform, I just would fail to bring it for one reason or another. Sometimes the car pool would pick me up right after elementary school, when all of my friends played kick ball and Mrs. Steinberg and her annoying son, Ricky, would pull up in an oak paneled station wagon and furiously honk their horn outside of the playground. Of course, I had neglected to bring my Hebrew school homework to elementary school and Mrs. Steinberg would chide me for being an absent minded schmuck all the while ignoring my pleas that she drive me home to let me run up to the TV Pong set where my homework was surely sitting.

At school, I would fearfully tell Mr. Shapiro that I again had forgotten my homework. He would slam his closed fist on the table and yell, "Again, Alexander... why you really are a putz."

And so it went. My Grandmother was born in Jaffa, Israel and was, of course, fluent in Hebrew. More often then not she would catch wind that I would forget my assignments and she became furious as well. She had a right, as she actually was the one that did most of my assignments once she conceded that her grandson would never know the difference between a gimel and a chai.

I learned a lesson as the Hebrew School Putz that thankfully carried into my adult life. Do whatever you can to keep and deliver your documentation.

I am not certain if today I fear the Federal and State Judges as much as I feared Mr. Sharpiro and Mrs. Steinberg, but I can assure you that the former have not labeled me the forgetful Putz.

I pride myself on making sure my clients retain their documentation and produce it as required.

How do I insure that this is done? Here are ten tips and tricks that I adhere to religiously ...

1. I always instruct my clients to make daily backups of active matters and weekly backups of all data.

2. Make sure the client goes to a reputable and experienced consultant for assistance retaining or retrieving electronic records. Asking a friend who happens to be a WordPerfect power user is usually not enough.

3. Careful transporting data. Do not allow an unknown person to transport your backup tapes or CD's. If you carry critical data with you, do not let it out of your sight. Keep in your carry on luggage if your travel and do not check it on and risk it ending up in Bangalore when your litigation support strategy meeting is taking place in Baltimore.

4. Never examine files using Windows as your can change or corrupt metadata leading to a spoliation claim by the other side.

5. Tell your clients to make sure they have installed firewalls and virus protection software. Avoid running a web browser when the user is away from the computer. This only invites hackers and thieves.

6. If your client is a large business/corporation, ask the IT staff to look into a robotic back up silo which automatically creates multiple backup tapes on an incremental basis.

7. Make sure you and your client periodically review its record/data retention policy or policies and confirm that such are up to prevailing standards for the client's particular industry or type of business.

8. Confirm that your client's communications with their clients reveals the specifics about the above enumerated retention policy.

9. If you or your client chooses to "go paperless" by scanning paper documents and merging them with electronic data, be sure to use an experienced and reputable imaging vendor and don't bother trying to take on such a gargantuan task yourself.

10. If you are struggling in Hebrew school and your Grandmother was born in Israel, paint her a nice picture and be sure to let her pinch your cheeks... then hit her up for help on your homework.

posted by Alexander | 12:40 AM

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