Facebook: Getting Electronic Evidence Is Not As Hard As Getting It Admitted

There are many articles on using discovery to obtain electronically stored information. Also known as ESI. Emails, electronic documents like excel spreadsheets, word docs, powerpoint presentation and pdfs are evidence found on computers. Before you ponder the maze required to obtain and analysis ESI, first consider how you are going to get the electronic document into evidence.

In the Face book litigation, you may have heard that Mr. Ceglia now claims he has an email from Mr Zuckerberg discussing a contract to give Mr. Ceglia 50 percent of Facebook. From what I can tell the evidence is not the email but a word document Ceglia says he used to save the email. So there is a debate over the validity of the saved email in a word doc.

The problem is establishing a foundation for a court to allow the document into evidence. If a party cannot show the document is what it purports to be, the jury never even sees it. Facebook has hired Gerald McMenanim, a professor at California State University in Fresno. I have hired him too on the same type of problem. He looks at the questioned email and compares it to known writings. His considers the documents using linguistics. This technique is used to establish similarity or, as in the Facebook case, dissimilarity of authorship.

This task would probably not be required if Ceglia had the original email. The original would have meta data which helps computer forensic people determine the who sent the email, when, and from what computer. Because Ceglia did not save the email from the 2003-2004 time period, that information is not available. So what to do.

Look at Lorraine v. Markel American Ins. Co. 241 F.R.D. 534 (D. Md. 2007). Magistrate Grimm wrote this 48 page tome about getting electronic evidence admitted. The case in not very high tech. The parties were battling over an arbitration award based on an insurance claim: a lightning bolt hit a yacht. The parties made cross motions for summary judgment. The motions were denied because the parties had not provided adequate foundation for electronically stored evidence. Before you wonder about the weight of authority a magistrate’s opinion has your jurisdiction, read the case. Most of it is dicta. But through the tireless efforts of Ms. Puja Gupta, Mr. Ben Peoples and Ms Kathryn Widmayer, See fnt 63, the opinion provides a masterful walk down the process of getting ESI into evidence.

After looking at the case, you may realize Ceglia’s major hurdle in the Facebook case is his first. Since he copied the email to a word doc, the document is not what it purports to be. It is not the original of the email; it is a copy of an email. Ceglia faces a best evidence rule (FRE 1002) problem since he cannot offer the original of the document. Ceglia may also have a problem with electronic signature law on contracts. Then there is the linguistics expert. This goes to show that solving the admissibility of electronic evidence is often harder than getting it in the first place.