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					         King County Bar Association’s
          HOUSING JUSTICE PROJECT
            VOLUNTEER ATTORNEY
         BROWN BAG TRAINING SERIES
                October 2, 2009


  COMPUTER AND DIGITALLY STORED EVIDENCE
 UNDERSTANDING AND APPLYING THE RULES OF
EVIDENCE IN THE SHOW CAUSE HEARING CONTEXT

               1.25 General CLE Credits
           (Live Approval Code # 239955)



                                             1
                         Speaker Bio

Barbara Harris has been the managing attorney for the Housing
  Justice Project since August of 2008. Her previous experience
  includes serving for nearly nine years as a Pro Tem Judge for
  King County Superior Court and has a Temporary, Term
  Limited Commissioner until 2008. Prior to working for King
  County Superior Court, Barbara was employed for eight years
  with one of Seattle’s Public Defender Agencies.




                                                                  2
Evidence, ev’i-dens, n.

That which demonstrates that a
fact is so, testimony; proof;
witness-To make evident, to prove
“Webster’s Dictionary”


“Be frank and explicit with your
lawyer…it is his business to
confuse the issues afterwards”

-J.R. Solly



                                    3
        Learning to be proactive in your efforts.
        How to get in or keep out such evidence.

Overview of Electronic Discovery
• Most documents today are in digital form. “Electronic (or
  digital) documents” refers to any information
• created, stored, or best utilized with computer
  technology of any sort, including business
• applications, such as word processing, databases, and
  spreadsheets; Internet applications,
• such as e-mail and the World Wide Web;



                                                          4
                 Overview Electronic Discovery


• devices attached to or peripheral to computers, such as
• printers, fax machines, pagers; web-enabled portable devices
               .
  and cell phones; and media used to
• store computer data, such as disks, tapes, removable drives,
  CDs, and the like.

Source: from a presentation on electronic discovery by Ken
   Withers, former Senior Judicial Education Attorney at the
  Federal Judicial Center, to the National Workshop for United
  States Magistrate Judges on June 12, 2002.


                                                                 5
         Since the scope of discovery in state
         courts is similar to that permitted in
         federal courts, it is likely that Washington
         courts will consider federal law when
         grappling with e-discovery issues. In
         addition to the guidance provided by
         federal rules and case law, state courts
         may also refer to the "Guidelines for State
         Trail Courts Regarding Discovery of
         Electronically Stored Information"
         ("Guidelines") when addressing ESI issues.
         The Guidelines were developed by the
         Conference of Chief Justices Working
         Group on Electronic Discovery in August
         2006. (available at
         http://www.ncsconline.org/images/EDisc
         CCJGuidelinesFinal.pdf).

Source: James R. McCullagh on Washington
State Law and E-Discovery Requirements
Partner, Perkins Coie LLP
                                                        6
                   Washington & ESI Current Status

• Washington State Bar Mulls ESI Rule Changes
  Written by Charles T. Tsuji Tuesday, 28 July 2009 15:19 Washington state case
  law is sparse when it comes to the topic of electronically stored information
  (ESI).

    If the WSBA decides to implement aspects of the federal rules regarding ESI, it
   would be the latest in a string of states to do so. In late June, California Gov.
   Arnold Schwarzenegger signed into law the Electronic Discovery Act. The new
   law integrates federal electronic discovery rules into the California Code of
   Civil Procedure.

• The proposed amendments to Washington state law call for the
  adoption of changes similar to federal civil rules 26, 33, 34, 37, 45
  and evidence rule 502. One major deviation from the federal rules
  comes in regards to the mandatory meet-and-confer meetings
  under Federal Rule 26(f).



                                                                                   7
                      FYI

• A judge in the case of Lorraine v. Markel
  American Insurance Co., 2007 U.S. Dist. LEXIS
  33020 (D. Md. May 4, 2007) issued a one
  hundred page opinion that is essentially a
  primer on how to get electronic evidence in at
  trial.




                                                   8
             Practical Application of the Hearsay Rule
             Hearsay evidence almost always comes in. So
             many exceptions that they swallow the rule.

•Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available
 as a witness:
(1) Present sense impression.--A statement describing or explaining an event or
 condition made while the

declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited utterance.--A statement relating to a startling event or condition made while
the declarant was under the stress of excitement

caused by the event or condition.
(3) Then existing mental, emotional, or physical condition.--A statement of the declarant's
 then existing state of mind, emotion, sensation,
or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health),
but not including a statement of memory or
belief to prove the fact remembered or believed unless it relates to the execution, revocation,
identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment.--Statements made for
purposes of medical diagnosis or treatment and describing

medical history, or past or present symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment                                                 9
• (5) Recorded recollection.--A memorandum or record concerning a matter
  about which a witness once had knowledge but now has insufficient
  recollection to enable the witness to testify fully and accurately, shown to
  have been made or adopted by the witness when the matter was fresh in
  the witness' memory and to reflect that knowledge correctly. If admitted,
  the memorandum or record may be read into evidence but may not itself
  be received as an exhibit unless offered by an adverse party.

Scenario:
LL previously sent tenant a letter stating that tenant has met certification
    requirements and the next certification will be in a year. A few months
    later tenant is facing eviction for allegedly failing to comply with
    certification requirements and non payment of market rate rent.
You, adverse party, move to admit the letter. Opposing party objects, Court
    overrules the objection. (Case ends up getting set for trial as genuine
    issue of fact exists as to whether or not the LL complied with the
    certification process requirements prior to charging tenant market rate
    rent).
                                                                                 10
Authenticating a Letter: PRACTICE TIPS
 You should ask the following
 questions in order to establish the
 foundation for a letter to be
 admitted into evidence:
 Are you familiar with the signature
 of Mr. Smith (person who signed
 letter)?
 How are you familiar with Mr.
 Smith's signature?
 Show the witness plaintiff's Exhibit
 "D" for identification.
 Do you recognize the signature at
 the bottom of this letter?
 Whose signature is it?

 Move to admit into evidence.            11
• (6) Records of regularly conducted activity.--A memorandum, report,
  record, or data compilation, in any form, of acts, events, conditions,
  opinions, or diagnoses, made at or near the time by, or from information
  transmitted by, a person with knowledge, if kept in the course of a
  regularly conducted business activity, and if it was the regular practice of
  that business activity to make the memorandum, report, record or data
  compilation, all as shown by the testimony of the custodian or other
  qualified witness, or by certification that complies with Rule 902(11), Rule
  902(12), or a statute permitting certification, unless the source of
  information or the method or circumstances of preparation indicate lack
  of trustworthiness. The term "business" as used in this paragraph includes
  business, institution, association, profession, occupation, and calling of
  every kind, whether or not conducted for profit.



                                                                                 12
• (7) Absence of entry in records kept in accordance with the
  provisions of paragraph (6).--Evidence that a matter is not
  included in the memoranda reports, records, or data
  compilations, in any form, kept in accordance with the
  provisions of paragraph (6), to prove the nonoccurrence or
  nonexistence of the matter, if the matter was of a kind of
  which a memorandum, report, record, or data compilation
  was regularly made and preserved, unless the sources of
  information or other circumstances indicate lack of
  trustworthiness.



                                                                13
    HEARSAY EXCEPTIONS
Evidence Rule 803(8) --Public
records and reports.
Evidence Rule 803(9) -- Records of
vital statistics.
Evidence Rule 803(10) -- Absence
of public records.
Evidence Rule 803(11-17) --
Further exceptions for records of
religious organizations, marriage
and baptismal
certificates, family records,
documents affecting an interest in
property, ancient documents and
market reports.
                                     14
                       Business Records: Practice Tip
   You should make certain that Opposing counsel asks the following questions in order to
establish the foundation for business records to be admitted into evidence and be considered
                              an exception to the Hearsay Rule


• Are you familiar with Exhibit "A" (business records) for
  identification?
• Can you identify these documents?
• Were these documents prepared in the ordinary scope of
  the business of your company?
• Where are these documents stored after they are
  prepared?
• Where were these documents retrieved from?
• Is it a regular part of your business to keep and maintain
  records of this type?
• Are these documents of the type that would be kept under
  your custody or control?

                                                                                           15
United States v. Snyder, 787 F.2d
1429, 1433–34 (10th Cir. 1986)
(“The business records exception is
based on a presumption of
accuracy, accorded because the
information is part of a regularly
conducted activity, kept by those
trained in the habits of precision,
and customarily checked for
correctness, and because of the
accuracy demanded in the conduct
of the nation’s business.”).
                                      16
   If attempting to introduce “Business Records”, the
               foundation must include   :

1) The identity of the records;
2) The record’s mode of
preparation;
 3) That the record was made in
the regular course of business; and
4) That the record was made at or
near the time of the act, condition
or event that is the subject
matter of the record.



                                                        17
             Practice Tip: Business Records
However, one must remember that
simply because documents or
records may be admissible under
the “Business Records” exception,
even after proper foundation, they
are still subject to any and all
objections as to their contents.
Example:

In offering a police report, even
though it may be qualified as
business record, portions of the
report are subject to
other objections as to admissibility
such as “conclusions” or
“unqualified opinions.”
                                              18
When introducing computer-generated documents, lawyers most commonly
                    use the business records exception.
  Fed. R. Evid. 803(6); Ronald J. Marzullo-La Russa, Computer-Generated
                           Evidence: Admissibility,
                     20 Rev. Jur. U.P.R. 121, 129 (1985).



• computer records will increasingly become an
  issue for the courts
• (computer stored), information methodically
  entered in a computer by human intervention
• (computer generated), data spontaneously
  recorded without human intervention

                                                                          19
Is the information on the
computer-generated
records admissible in
court over a hearsay
objection?

 A recent insurance case
considered this issue.


                            20
                          Argued and Submitted
                January 15, 2009—San Francisco, California
                          Filed August 12, 2009


• In insurance dispute, computer-generated
  summaries reflecting insurance company’s
  indemnity payments and loss adjustment
  expense payments for the insurance claims were
  admissible as a business record, in U-Haul
  Intern., Inc. v. Lumbermens Mut. Cas. Co., _ F.3d
  _ (9th Cir. Aug. 12, 2009) (No. 07-16187)
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT


                                                             21
• The case involved an insurance dispute
  brought by an insured and primary insurer
  against excess insurer. At trial, the court
  admitted computer-generated summaries of
  “indemnity payments and loss adjustment
  expense payments for the insurance claims.”
  U-Haul Intern., Inc., _ F.3d at _. After an
  adverse judgment, on appeal the excess
  insurer contended the records were admitted
  in violation of the rule against hearsay.
                                                22
          U-Haul Intern., Inc.,
• The Ninth Circuit had little trouble affirming
  the admission of the computer records. As the
  circuit noted:
• “We have made clear that ‘[f]or the purposes
  of Rule 803(6), it is immaterial that the
  business record is maintained in a computer
  rather than in company books.


                                               23
A logical extension on that principle is that
evidence that has been compiled from a
computer database is also admissible as a
business record, provided it meets the criteria of
Rule 803(6). Accord United States v. Fujii, 301 F.3d
535, 539 (7th Cir. 2002) (holding that computer
data compiled in the ordinary course of business
and presented in computer printouts prepared for
trial is admissible under Rule 803(6)); Potamkin
Cadillac Corp. v. B.R.I. Coverage Corp., 38 F.3d
627, 632 (2d Cir. 1994) (“A business record may
include data stored electronically on computers
and later printed out for presentation in court, so
long as the original computer data compilation
was prepared pursuant to a business duty in
accordance with regular business practice.”)
                                                       24
The case highlights the acceptance of computer-generated records and
            the analysis considered for their admissibility.


As the district court found
• (1) the underlying data was entered into the database at or
  near the time of each payment event;
• (2) the persons who entered the data had knowledge of the
  payment event;
• (3) the data was kept in the course of Republic Western’s
  regularly conducted business activity; and
• (4) [claims manager] Mr. Matush was qualified and testified
  as to this information.”



                                                                  25
  The four requirements to admit the computer-generated
              business records were satisfied.
It was not necessary for the claims manager to input the
information into the computer as long as he was familiar
with the record keeping practices. At one point during
the trial testimony, the claims manager was unable to
locate a particular payment on the summary. After the
judge questioned the claims manager, he was able to
explain “how the summary sheet matched up to backup
documentation.”
The computer-generated records were authenticated
under FRE 901(b)(9), which allows authentication based
on a description of “a process or system used to
produce a result and showing that the process or system
produces an accurate result.”
 Finally, the summary rule, under FRE 1006, did not
apply since the summaries used in the case were the
business records.
                                                           26
                  BUSINESS RECORDS
It is not necessary for each individual who
entered a record of payment into the
database to testify as to the accuracy
of each piece of data entered.

 See United States v. Smith, 609 F.2d
1294, 1302 (9th Cir. 1979) (“The witness
must only be in a position to attest to [the
evidence’s] authenticity”)
(citation and internal quotations omitted);
see also Thanongsinh v. Bd. of Educ., 462
F.3d 762, 777 (7th Cir. 2006) (holding that
the qualified witness “need only be
familiar with the company’s
recordkeeping practices.


                                               27
We have held that “[i]t is not necessary that
the computer programmer testify in order to
authenticate computer generated
records.” United States v. Miller, 771 F.2d 1219,
1237 (9th Cir. 1985). A computer printout may
be authenticated by “one who has knowledge
of the particular record system.”
Id., quoting Notes of the Committee on the
Judiciary,
S. Rep. No. 93-1277, 93rd Cong., 2d Sess. 17
(1974).


 Similarly, a party “ ‘need not produce expert
testimony as to [the] mechanical accuracy of
[a] computer where it presented evidence
that [the] computer was sufficiently accurate
[so that the] company relied upon it in
conducting its business.’ ” Id., citing United
States v. De Georgia, 420 F.2d 889, 893 n.11
(9th Cir. 1969).
                                                    28
                Admitting Emails Into Evidence


• As a federal judge noted, “Rule 803(3) is particularly useful
  when trying to admit e-mail, a medium of communication
  that seems particularly prone to candid, perhaps too-
  candid, statements of the declarant's state of mind,
  feelings, emotions, and motives.” Lorraine v. Markel
  American Insurance Co., 241 F.R.D. 534 (U.S. District Court
  for the District of Maryland 2007).
• And at least one court relied on this exception in ruling
  that emails were admissible in a federal criminal
  prosecution. U.S. v. Safavian, 435 F. Supp.2d 36 (U.S.
  District Court for the District of Columbia 2006).




                                                                  29
           Authenticating E-Mail Discovery as Evidence


• The bar for establishing authenticity is not high under Federal
  Rule of Evidence901.
• In the 3rd U.S. Circuit Court of Appeals, a court need only be
  able to legitimately infer that a document is genuine to find it
  to be "authentic.“
• Deeper questions concerning trustworthiness might go to
  the weight of the evidence. In U.S. v. Safavian, faced with a
  mountain of e-mails, the court refused to require detailed
  authentication.
• Some e-mails can be self-authenticated under Rule 902(7).
  Business labels, including signature blocks, that evidence the
  company from which an e-mail was sent,or even the name of
  a company in an e-mail address, might be sufficient proof of
  authenticity on their own.                                       30
            Practice Tip: An e-mail that is an admission by
                   a party-opponent is "not hearsay

• Many practitioners would consider e-mails as classic examples
  of business records for corporate entities that routinely use e-
  mail for both internal and external communication.
• Under Federal Rule of Evidence 803(6), however, only "if it
  was the regular practice of that business activity" to make
  that record can a document come into evidence under the
  exception.

Many e-mails, however, do not meet the
"business records" exception because they
are merely chatter, statements that are made
casually and not as a matter of obligation or
even routine.

                                                                31
                                  Practice Tip:
              Another way to overcome a hearsay challenge is to
         fit the e-mail into one of the exceptions to the hearsay rule.
             These exceptions are permitted because their context
                        makes them likely to be reliable.



• If one can show that an e-mail was written while perceiving
  an event or immediately thereafter, or while under the stress
  caused by a startling event, it might meet the "present sense
  impression" or "excited utterance" standards of rules 803(1)
  and 803(2).




                                                                          32
                         Practice Tips


• E-mail, voicemail, or ledgers are just media used to hold and
  convey information. It's the transaction and the content that
  make them evidence.
• The form matters, but only for reasons of:
• accessibility (Can I view or hear it?),
• preservation (How do I protect it?),
• utility (Can I search and sort it?),
• completeness (Is something added or absent?)
• and authentication (Can I rely on it?)/and the content that
  make them evidence.


                                                              33
   Twitter and Federal Rules of Evidence 803(1) and
             803(2), hearsay exceptions.

• Twittered content would fall under the same rules as
  emails. Messages written about an event, during an event
  would be considered evidence and not hearsay.

• In U.S. v. Fumo, 2009 WL 1977715 (U.S. District Court for the
  Eastern District of Pennsylvania 2009), Vincent Fumo moved
  for a new trial based in part on a juror’s using tweets to
  comment on aspects of the trial.

• The federal district court found that the juror’s tweets did not
  warrant the granting of a new trial because they “`were
  nothing more than harmless ramblings having no prejudicial
  effect’” on the original trial. U.S. v. Fumo, supra.


                                                                  34
  It’s doubtful that the business records exception or many of the other hearsay
                          exceptions will apply to tweets.
• The exceptions contained in Rules 803(1) and 803(2) just might.
• Tweets are out of court statements which are not admissible in court
  unless they fit into one of the exceptions or exclusions.

Rule 803(1) deals with the “present sense impression” exception.
Under Rule 803(1),
 “[a] statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or
immediately thereafter” is not excluded by the default hearsay rule.

• Rule 803(2) deals with the “excited utterance” exception. Under Rule
  803(2), “[a] statement relating to a startling event or condition made
  while the declarant was under the stress of excitement caused by the
  event or condition” is not excluded by the default hearsay rule.

• The business records exception appears in Rule 803(6).
                                                                                   35
Rule 803(3) may be a better fit for tweets
than the other two rules.


As a federal judge noted, “Rule 803(3) is
particularly useful when trying to admit e-
mail, a medium of communication that
seems particularly prone to candid,
perhaps too-candid, statements of the
declarant's state of mind, feelings,
emotions, and motives.” Lorraine v.
Markel American Insurance Co., 241
F.R.D. 534 (U.S. District Court for the
District of Maryland 2007).

And at least one court relied on this
exception in ruling that emails were
admissible in a federal criminal
prosecution. U.S. v. Safavian, 435 F.
Supp.2d 36 (U.S. District Court for the
District of Columbia 2006).
                                              36
  Electronic Discovery and the Hearsay Rule :



electronically generated information is the
  information a computer creates itself


   • an example the report a fax machine
   prints whenever a fax is sent. HJP relies
   on the transmittal reports to prove the
   Notice of Appearance and Answer was
   filed on time.

   •The report is offered to prove the truth
   of the matter, i.e.. The answer was filed
   on time.

   •Opposing Party objects to its
   admissibility. How do you get it into
   evidence?


                                                37
 FAX TRANSMITTAL REPORT
Even though the data and/or the
information printed out is not directly
inputted by a person, the computer
system itself obviously didn’t create and
store these types of information on its
own or create it from some artificial
intelligence of its own. The information is
there, and stored and formatted in a
particular manner, only because of
software and other input placed there by
humans for the purpose of having the
system create, store and generate the
data in a particular manner.




                                              38
                            FAX TRANSMITTAL REPORT
                      7th Circuit
                      Laouini v. CLM Freight Lines, Inc., No. 08-3721,
                      (7th Cir. Decided August 20, 2009)
This case is an appeal of a summary judgment
granted by the district court in an EEOC
discrimination claim on the basis that the appellant
could not prove that the charge was timely filed.
Plaintiff-Appellant’s counsel submitted a fax
confirmation sheet as evidence that the charge was
filed before the expiration of the statute of
limitations. Counsel also presented the fax cover
sheet which requested the claim be file-stamped to
reflect that day’s date. Defendant-Appellees
contended that they only received the mailed copy
and that copy was received after the time for filing
a claim expired.
On review, the appellate court considered the fax
confirmation as evidence of receipt of the charge.
In its discussion, the Court analogizes the fax
transmission sheet to the postmark on a letter,
having the effect of raising a rebuttable
presumption of receipt. The Court notes:
                                                                         39
7th Circuit
Laouini v. CLM Freight Lines, Inc., No. 08-
3721, (7th Cir. Decided August 20, 2009)


The Court goes on to say that the
fax confirmation “independently
verifies” that a document was sent
on a specific date to a specific
recipient. An affidavit of plaintiff’s
counsel testified as to the content
of the fax. The Court vacated the
summary judgment, concluding
that the fax transmission sheet
created a material issue of fact to
survive a motion for summary
judgment.
                                              40
Several courts have drawn on this
presumption, either explicitly or implicitly, to
conclude that a fax confirmation generated by
the sender’s machine similarly creates a
rebuttable presumption that the fax was
received by the intended recipient. See,
Stevens Shipping & Terminal Co. v. Japan
Rainbow II MV, 334 F.3d 439, 444 (5th Cir.
2003)( . . . fax confirmation of a successful
transmission raises the presumption of receipt
because faxes are a “reliable and customary
means of communicating in business.”); Erwin
v. Town of Jena, 987 So. 2d 281, 285 (La. Ct.
App. 2008) (adopting presumption of receipt
and explaining that faxes are “generally
accepted as a vital means of communication in
modern technological culture” . . .); Renegade
Oil, Inc. v. progressive Cas. Ins. Co., 101 P. 3d
383, 385-86 (Utah Ct. App. 2004)(noting
rebuttable presumption of receipt and
declining to adopt rule that “all risk of
communication by fax transmission is borne by
the sender and not the receiver.                    41
                     Fax Documents
The foundation requirements for documents transmitted by
                 facsimile machine are:

             1) The fax machine is standard type
                equipment used to transmit documents by
                telephone.
             2) 2) The fax machine was in good working
                order at the time in question.
             3) 3) There are customary procedures for
                sending and receiving documents, and the
                procedures were followed at the time in
                question.
             4) 4) There is an automatic process for
                recording of time, date and telephone
                number of the sending machine, and this
                information appears on the document in
                question.
             5) 5) The document offered as evidence was
                received on the addressee’s fax machine.
                People v. Hagan, 145 Ill.2d 287 (1991)
                                                           42
Electronic mail, often abbreviated as email or
e-mail, is a method of exchanging digital
messages, designed primarily for human use.
E-mail systems are based on a store-and-
forward model in which e-mail computer
server systems accept, forward, deliver and
store messages on behalf of users, who only
need to connect to the e-mail infrastructure,
typically an e-mail server, with a network-
enabled device (e.g., a personal computer) for
the duration of message submission or
retrieval. Rarely is e-mail transmitted directly
from one user's device to another's.
An electronic mail message consists of two
components, the message header, and the
message body, which is the email's content.
The message header contains control
information, including, minimally, an
originator's email address and one or more
recipient addresses. Usually additional
information is added, such as a subject header
field.
                                       From Wikipedia, the free encyclopedia
                                                                               43
                  Photographs As Evidence

• The admissibility of photographs is within the sound discretion of
  the trial court. State v. Finch, 137 Wn.2d 792, 812, 975 P.2d 967,
  cert. denied, U.S. , 120 S. Ct. 285, 145 L. Ed. 2d 239 (1999).

Photographs as Evidence
The principal requirements to admit a photograph (digital or film-
  based) into evidence are relevance and authentication.
Unless the photograph is admitted by the stipulation of both parties,
  the party attempting to admit the photograph into evidence:
• must be prepared to offer testimony that the photograph is an
  accurate representation of the scene.


                                                                        44
   Laying A Foundation to Admit a Photograph into Evidence


• The trial of virtually every personal injury or wrongful death
  case involves the use of one or more photographs.

• The recent decision in Zerega Ave. Realty Corp. v. Hornbeck
  Offshore Transp., LLC, __ F.3d __ (2d Cir. July 6, 2009) (No. 08-
  0639-CV) reminds us that the failure to lay a proper
  foundation will result in exclusion of photographs at trial.

• The opinion reminds us that the "standard for admissibility of
  photographs requires the witness to recognize and identify
  the object depicted and testify that the photograph is a fair
  representation of what it purports to portray.

                                                                   45
      The Supreme Court Has Previously Ruled

• Recall that "[t]he witness qualifying a
  photograph ... does not need to be the
  photographer or see the picture taken. It is
  only necessary that he recognize and identify
  the object depicted and testify that the
  photograph fairly and correctly represents it.”
  Kleveland v. United States, 345 F.2d 134, 137
  (2d Cir. 1965)

                                                    46
        Do the same rules apply to digital photographs?


• State of Washington vs. Eric Hayden, 1995
• State of Washington v. Hayden, 950 P.2d 1024 (February 18, 1998,
  Washington Court of Appeals) 90 Wash. App. 100, 950 P.2d 1024
  (Wash. Ct. App. 1998).

  A homicide case was taken through a Kelly-Frye hearing
  in which the defense specifically objected on the grounds
  that the digital images were manipulated.
• The court authorized the use of digital imaging and the
  defendant was found guilty. In 1998 the Appellate Court
  upheld the case on appeal.

                                                                 47
     Basic Difference Between Analog and Digital
                     Photography

• In analog photography, the camera captures an image on
  film. The film is developed using chemicals. This process
  creates a negative. The negative is turned into a positive
  and printed on paper stock, again using chemicals.
Cause for Concern
  A potential problem in digital photography is that the
  software used to make pictures also allows those
  pictures to be altered. At worst, objects that were not in
  the original image can be added and those that were
  there can be removed.

                                                           48
  The standards for the admissibility of evidence are
        relevance, authenticity, and reliability.

• A reliable chain of custody should be established in
  order to demonstrate the integrity of images to
  demonstrate:

  1. who took the picture and when, where and how the image
  was stored,
   2. who had access to the image from the time it was taken
  through the time it is introduced in court, be introduced in
  court
   3. and any details on whether or not the image has been
  altered and how.

                                                                 49
Photographic Authentication and Admissibility: Evidence Rules
                       901 and 1001

• Under Evidence Rule 901 and its state analogues, photographs are
  typically admitted as demonstrative evidence to illustrate
  testimony. When used purely as demonstrative evidence, legal
  issues regarding authentication and chain of custody are somewhat
  relaxed so long as a competent witness can testify that the
  photograph fairly and accurately depicts the scene about which he
  or she is testifying.

PRACTICE TIP:
• Videos are typically authenticated in the same manner as a still
  photograph. Saturn Manufacturing, Inc. V. Williams Patent Crusher
  and Pulverizer Company, 713 F.2d 1347, 1357 (C.A. 8, 1983).

                                                                      50
                         Getting Images Admitted
                              PRACTICE TIPS

•   Photographs: You should ask the following questions in order to establish the
    foundation for photographs to be admitted into evidence:
• I am showing you what has been marked as Exhibit "C" for
  identification. Do you recognize what is shown in this Are you
  familiar with the scene (person, product, etc.) portrayed in
  this photograph?
• How are you familiar with the scene portrayed in the
  photograph?
• Does the scene portrayed in the photograph fairly and
  accurately represent the scene as you remember it on (date in
  question)?
• Move the photograph into evidence.


                                                                                    51
     Washington State Court Rules: Rules of Evidence

• Table of Rules Introductory Comment
  Title 1 General Provisions
• 101 Scope 102
• Purpose and Construction
• 103 Rulings on Evidence
• 104 Preliminary Questions
• 105 Limited Admissibility
• 106 Remainder of or Related Writings or
  Recorded Statements



                                                       52
• Title 2 Judicial Notice 201
• Judicial Notice of Adjudicative Facts

  Title 3 Presumptions in Civil Actions and
  Proceedings
• 301 Presumptions in General in Civil Actions and
  Proceedings (Reserved)
• 302 Applicability of State Law in Civil Actions and
  Proceedings (Reserved)


                                                        53
•   Title 4 Relevancy and Its Limits
•   401 Definition of "Relevant Evidence"
•   402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
•   403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
•   404 Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes
•   405 Methods of Proving Character
•   406 Habit; Routine Practice
•   407 Subsequent Remedial Measures
•   408 Compromise and Offers To Compromise
•   409 Payment of Medical and Similar Expenses
•   410 Inadmissibility of Pleas, Offers of Pleas, and Related Statements
•   411 Liability Insurance
•   412 Sexual Offenses--Victim's Past Behavior

•   Title 5 Privileges 501 General Rule


                                                                                              54
•   Title 6 Witnesses                    • 609
•   601 General Rule of Competency       • Impeachment by Evidence of
                                           Conviction of Crime
•   602 Lack of Personal Knowledge       • 610
                                         • Religious Beliefs or Opinions
•   603 Oath or Affirmation
                                         • 611
                                         • Mode and Order of Interrogation
•   604 Interpreters
                                           and Presentation
                                         • 612
•   605 Competency of Judge as Witness
                                         • Writing Used To Refresh Memory
•   606 Competency of Juror as Witness   • 613
                                         • Prior Statements of Witnesses
•   607 Who May Impeach                  • 614
                                         • Calling and Interrogation of
•   608 Evidence of Character and          Witnesses by Court
    Conduct of Witness
                                                                        55
Title 7 Opinions and Expert Testimony
       701           Opinion Testimony by
                        Lay Witnesses
       702           Testimony by Experts
       703             Bases of Opinion
                     Testimony by Experts
       704            Opinion on Ultimate
                             Issue
       705           Disclosure of Facts or
                       Data Underlying
                        Expert Opinion
       706             Court Appointed
                            Experts           56
      Title 8 Hearsay
801                   Definitions
802                  Hearsay Rule
803              Hearsay Exceptions;
                Availability of Declarant
                      Immaterial

804               Hearsay Exceptions;
                 Declarant Unavailable
805             Hearsay Within Hearsay
806            Attacking and Supporting
                Credibility of Declarant
807            Child Victims or Witnesses
                       (Reserved)



                                            57
Title 9 Authentication, Identification and Admission of
                        Exhibits
           901                      Requirement of
                                   Authentication or
                                     Identification
           902                    Self-Authentication
           903                   Subscribing Witness'
                                Testimony Unnecessary
           904               Admissibility of Documents




                                                          58
Title 10 Contents of Writings, Recordings, and
                Photographs
         1001                  Definitions
         1002          Requirement of Original
         1003               Admissibility of
                               Duplicates
         1004            Admissibility of Other
                         Evidence of Contents
         1005                Public Records
         1006                  Summaries
         1007            Testimony or Written
                           Admission of Party
         1008           Functions of Court and
                                  Jury




                                                  59
Title 11 Miscellaneous Rules
 1101             Applicability of
                       Rules
 1102              Amendments
                    (Reserved)
 1103                  Title




                                     60
                                   RESOURCES

•   Articles
•   E-Discovery (Re)sources Abound, King County Bar Association Bar Bulletin (August
    2008).
•   Proposed Changes to Civil Rules, Electronically Stored Information, Litigation
    Section of the Washington State Bar Association Litigation News (Spring 2008).
•   Protecting Customer Data: State laws vary, but principles stay the same, Insurance
    Journal West Edition (August 6, 2007).
•   Protecting Customer Data under the Gramm-Leach-Bliley Act, Insurance Journal
    West Edition (March 12, 2007).
•   New Rules Mean Bytes of Electronically Stored Info Could Have Big Bite, Insurance
    Journal West Edition (December 25, 2006).
•   Electronic Discovery, Inadvertent Production and the New Federal Rules, Orange
    County Lawyer, August 2006.
•   Uncertain & Unseen, Pending amendments to the federal rules should provide
    guidance to handling metadata, Law Technology News, January 2006.

                                                                                     61
Articles
Allman, Thomas Y. “A Proposed Model for
State Rules re: Electronic Discovery.”
National Center
for State Courts, November 15, 2001.

Best, Richard E. “Taming the Discovery
Monster.” California Litigation: The
Journal of the Litigation Section, State Bar
of California (November, 2005).

Best, Richard E. “E-Discovery Basics.”
California Litigation: The Journal of the
Litigation Section,
State Bar of California (August 2005).

Best, Richard E. “The Need for Electronic
Discovery Rules.” Modern Practice (August
2002).
                                               62

				
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