Email as Evidence

JOHN D. GREGORYDANIEL J. MICHALUK

June 11, 2009

Email as Evidence

2

Email as Evidence

OutlineDefinitionsRelevanceAccessProductionAdmissibility and WeightCase studies

3

Definitions

Email and e-messages1970s

Classic email (SMTP)1980s

Bulletin boards, MUD1990s

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

IM, Social networks, Twitter Remix of all of the above VOIP? (Skype = voice + image + IM) Multiplication of carriers : e-messages in the cloud

4

Relevance

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

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

Poindexter Information in transit: special issues

Multiplicity of repositories Jurisdiction Communications/speech issues with content Impermanence

Paradigm case Raises many issues in strong ways that appear elsewhere Evolves quickly – the answers keep changing

Access

Law The traditional “no expectation of privacy” view The balancing of interests approach The beyond control approach

And practice What employers should do

Access

No expectation of privacy view Notification does count The employer owns the medium and has lots of good

reasons to look E-mail communication is too insecure to expect

privacy

Access

The balancing of interests view Lethbridge Community College (2007) MS Hotmail e-mails retrieved through forensic

analysis First case to impose a reasonable grounds

requirement for investigation

Access

The beyond control view Who controls non-work related records? Beyond control view

Johnson v. Bell Canada (September 2008) University of Ottawa (December 2008)

Back to reality MO-2048, City of Ottawa (April 2009)

Access

Practical options for employers Do something! 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)

10

Access

Emerging challenges Email may be overtaken by other means of

communication So…how are you going to deal with employees who

conduct business in the “cloud” Businesses should set policy to ensure business is

done on business systems only

11

Production

E-mail retentionVolume and spread of email is both practical and

legal challengeSo: retention policies = destruction policies

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

delete unless actively saved Maybe some relevance test applied as well

Limit: reasonably likely to need it in litigationThis 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

12

Production

Privilege 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

There is no deemed undertaking rule for evidence led at trial.

13

Production

Privilege waiver – employee emails on employer systems

A practical problem for employer counsel among others

Case law on privilege is different from case law on investigations, audits and surveillance

What must you do to shield yourself from a “poisoned client”?

14

Admissibility and Weight

Proving a digital object is different

Vulnerability of information composed of presence or absence of electric current What happens when the power goes off? When the

system crashes?

Malleability of information Easy to change undetectably

Presentation in the courtroomMobility multiplies the issues

15

Admissibility and Weight

The 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)

16

Admissibility and Weight

The 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 is Standards in aid

Hearsay: do nothing Possible spillover effect of other rules

17

Case law

Not 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 sender A series of emails can satisfy Statute of Frauds Still had missing link i.e. legal rules still apply

Nad 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, etc

18

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.

19

CGSB Standard

Canadian General Standards Board: Standard on electronic records as documentary evidence

The key rule of the Standard: think about it! In other words:

Make a policy about how e-records are managed Communicate the policy Implement the policy Monitor compliance with the policy Adjust the policy as required by circumstances

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

20

New e-messages: Challenges

Webmail, 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

Are clouds third party providers in ordinary course of business, i.e. should they be considered reliable?

21

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

22

Admissibility and Weight

Email 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 passwords Supervisor resets password to help employee get access Email confirmation sent to employee Employee claims supervisor executed agreement and

denies reading confirmation email

JOHN D. GREGORYDANIEL J. MICHALUK

Email as Evidence