Email as EvidenceJOHN D. GREGORY

DANIEL J. MICHALUK

February 9, 2010

Email as EvidenceDefinitionsRelevanceAccessProductionAdmissibility and WeightCase studies

2

DefinitionsEmail and e-messages1970s

Classic email (SMTP)1980s

Bulletin boards, MUD, voice mail1990s

Web mail, ICQ, computer-generated or –received faxes2000s

IM, Social networks, Twitter, virtual worldsRemix of all of the above – e.g. notice of FB comments &

repliesVOIP (e.g. Skype = voice + image + IM)Multiplication of carriers : e-messages in the cloud

3

RelevanceWhy focus on email issues? It’s still the killer app

Everybody uses email and (more or less) understands itCan be particularly potent evidence – Gates, Black,

Poindexter Information in transit: special issues

Multiplicity of repositories JurisdictionCommunications/speech issues with content Impermanence

Paradigm caseRaises many issues in strong ways that appear elsewhereEvolves quickly – the answers keep changing

4

AccessStored communications on the corporate e-

mail systemLotus Domino, Microsoft Exchange Server,

GroupwiseBlackberry Enterprise ServerWorkstationsHandheld devices

AccessHard to access stored communications

Un-logged PIN-to-PIN messages (including Blackberry Messenger communications)

Blackberry Internet Service messagesSMS communications

Very hard to access stored communicationsCommunications on employee home computersCommunications on “personal” cloud services

AccessThe law – sources of rights

Employee privacy legislation (federal plus three provinces)

Criminal Code wiretap provision“Common law of the unionized workplace”Constructive dismissal claims by non-union

employees

AccessCases to watch

University of British Columbia – BC Supreme Court

R. v. Cole – Ontario Court of AppealQuon – USSC

AccessPractical options for employers

Do something now!Option #1 – Try harder to control expectations

despite personal use But how far will notice take you?

Option #2 – Give in, and implement privacy controls

Proportional audit/surveillance framework Investigation standards (reasonable suspicion)

ProductionThe problem of volume - retentionRetention policies are key

Email is often on a ‘short’ list for retention At least pressure to move off server, sometimes auto-

delete unless actively saved Limit: reasonably likely to need it in litigation

This can be an e-discovery issue or a trial issue Remington case (1998) – is retention policy reasonable? Broccoli v Echostar (2005) – 21-day retention of emails

10

ProductionPrivilege waiver – the internal counsel problemGenerally one does not produce privileged

information.What is privileged, in-house? If you copy counsel on all internal emails, all the

emails do not become privileged. Separate business advice from legal advice

How to sort it out? Air Canada v Westjet, There is no deemed undertaking rule for

evidence led at trial.

11

ProductionPrivilege waiver – employee emails on

employer systemsA practical problem for employer counsel among

othersCase law on privilege is different from case law

on investigations, audits and surveillanceLots of U.S. developments, few Canadian casesWhat must you do to shield yourself from a

“poisoned client”?

12

Admissibility and WeightProving a digital object is differentVulnerability of information composed of

presence or absence of electric currentWhat happens when the power goes off? When

the system crashes?Malleability of information

Easy to change undetectablyPresentation in the courtroom

Printout vs native format (capacity to present etc)

Mobility multiplies the issues13

Admissibility and WeightThe elements of documentary evidence: dealing with

the differences

Authentication Is this record what it purports to me? Admissibility if foundation laid to support that conclusion The cutting edge of e-evidence including email evidence today

Best evidence rule What is an original electronic document?

Hearsay Does the medium matter? Exceptions wide (reliability) or focused (business records?) It’s not always hearsay (e.g. mechanical evidence)

14

Admissibility and WeightThe Uniform Electronic Evidence Act (where

enacted)“Solutions” to electronic application of these rulesAuthentication: codify

Count on the witness under oath (not saying who)Challenge is in responding to challenges (expertise,

availability of foundation evidence)Best evidence: system not document

Presumptions in aid: it matters whose system it isStandards in aid

Hearsay: do nothingPossible spillover effect of other rules

Admissibility, nothing re weight

15

Case lawNot much of interest on UEEA

R. v. Bellingham (AB) needed evidence of what printouts were

Leoppky v Meston (AB) – demonstrates several things:Court looks behind computer to actual senderA series of emails can satisfy Statute of FraudsStill had missing link i.e. legal rules still apply

Nat. Business Solutions (ON) – email as course of conduct

Singapore vs England: email headers OK or not OK as evidence capable of supporting Statute of Frauds

Lorraine v Markel (NJ) – extreme demands (all obiter)Prove lots about system, manner of production, etcAdmitted some shortcuts might exist e.g. notice of intent

to use

16

An extreme case?“The focus is not on the … creation of the

record, but rather on the … preservation of the record during the time it is in the file”

“The entity’s policies and procedures for the use of the equipment, database and programs are important. How access to the … database [and to the specific program are] controlled is important. How changes in the database are logged, as well as the structure and implementation of backup systems and audit procedures for assuring the continued integrity of the database, are pertinent.”

In re Vee Vinhee, US appeal court, 2005.

17

CGSB StandardCanadian General Standards Board: Standard on

electronic records as documentary evidenceThe key rule of the Standard: think about it! In other words:

Make a policy about how e-records are managedCommunicate the policy Implement the policyMonitor compliance with the policyAdjust the policy as required by circumstances

Have a policy manual that you can point to.Have someone responsible (CRO) (+ witness)

18

New e-messages: ChallengesWebmail, Facebook/MySpace, TwitterAs you go into the cloud, it is harder to:

Authenticate (go to ISP not ASP)Figure out and prove the ‘system’ whose reliability one

would like to count on (or at least appreciate) No standardization – every application is different (not like

SMTP) Consumer oriented – so less rigorous than business systems Proprietary – so codes etc are not readily available Surrounded by TP apps – Tweetdeck, thousands of FB

suppliers – who, where, what are they?Are clouds third party providers in ordinary course of

business, i.e. should they be considered reliable?

19

Admissibility and Weight

Email problem #1 – You didn’t send that

Employee alleges termination on basis of pregnancy

Email pre-dates her pregnancy by two months showing bona fide intent to terminate

Proponent can testify

20

Admissibility and WeightEmail problem #2 – I didn’t send that

Agreement to arbitrate executed through employer’s intranet

Execution by entering SSN or employee ID number plus password

Supervisors could reset passwordsSupervisor resets password to help employee get accessEmail confirmation sent to employeeEmployee claims supervisor executed agreement and

denies reading confirmation email

21

Email as EvidenceJOHN D. GREGORY

DANIEL J. MICHALUK

February 9, 2010