JOHN D' GREGORY

1
Email as Evidence

• JOHN D. GREGORY
• DANIEL J. MICHALUK
• June 11, 2009

2
Email as Evidence

• Outline
• Definitions
• Relevance
• Access
• Production
• Admissibility and Weight
• Case studies

3
Definitions

• Email and e-messages
• 1970s
• Classic email (SMTP)
• 1980s
• Bulletin boards, MUD
• 1990s
• Web mail, ICQ, computer-generated or received
  faxes
• 2000s
• 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?
• Its 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

5
Access

• Law
• The traditional no expectation of privacy view
• The balancing of interests approach
• The beyond control approach
• And practice
• What employers should do

6
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

7
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

8
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)

9
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
• Sohow 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 retention
• Volume and spread of email is both practical and
  legal challenge
• So 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 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

12
Production

• Privilege waiver the internal counsel problem
• Generally 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 courtroom
• Mobility 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?)
• Its not always hearsay (e.g. mechanical evidence)

16
Admissibility and Weight

• The Uniform Electronic Evidence Act (where
  enacted)
• Solutions to electronic application of these
  rules
• Authentication 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 entitys 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, Twitter
• As 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 didnt 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 didnt send that
• Agreement to arbitrate executed through
  employers 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

23
Email as Evidence

• JOHN D. GREGORY
• DANIEL J. MICHALUK