clarkhill.com E-DISCOVERY, LITIGATION AND MOBILE DEVICES

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1 E-DISCOVERY, LITIGATION AND MOBILE DEVICES

2 General Principles of E-Discovery Authentication and Admission of ESI Expert Testimony: The Frye and Daubert Tests

3 E-DISCOVERY Discovery is the process in li0ga0on where both sides exchange evidence. E- discovery is discovery of electronically stored informa0on ( ESI ) Recent revisions to federal rules are focused on balancing the need for inves0ga0ng and developing claims against the significant, costly burden of collec0ng, analyzing and producing ESI.

4 FRCP 26(a)(1) # Scope of discoverable informa0on is any nonprivileged, relevant mager that is: propor0onal to the needs of the case, considering the importance of the issues at stake in the ac0on, the amount in controversy, the par0es rela0ve access to relevant informa0on, the par0es resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

5 Trail v. Lesko, No. GD (Allegheny Cty., July 3, 2012)! Pa. R. C. P. 4011: No discovery, including discovery of ESI, shall be permitted which (a) is sought in bad faith; (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense

6 Parties have a duty to collect and preserve all evidence that may be relevant to a pending or reasonably foreseeable litigation.

7 In re Pradaxa (Dabigatran Etexilate) Products Liability Li9ga9on, MDL No (S.D. Ill. Dec. 9, 2013) Kicapoo Tribe of Indians of the Kickapoo Reserva9on in Kansas v. Nemaha Brown Watershed Joint District No. 7, No. 06-CV-2248 (D. Kan. Sept. 23, 2013) Ewald v. Royal Norwegian Embassy, No. 11-cv-2116 (D. Minn. Nov. 20, 2013) PTSI, Inc. v. Haley, No. 684 WDA 2012 (Pa. Super. May 24, 2013) Christou v. Beatport, LLC, No (D. Colo. Jan. 23, 2013)

8 PREREQUISITES FOR ADMISSIBILITY OF ESI Relevant F.R.E. 402, Pa.R.E. 402 Authen0cated F.R.E , Pa.R.E Sa0sfy the original wri0ng rule ( best evidence rule ) or one of its excep0ons. F.R.E. 402, Pa.R.E. 402 Must not be hearsay, or must qualify under a hearsay excep0on or exemp0on. F.R.E. 801 et seq., Pa.R.E. 801 et seq. The proba0ve value of the evidence must not be substan0ally outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, was0ng 0me, or needlessly presen0ng cumula0ve evidence. Fed.R.E. 403, Pa.R.E. 403.

9 AUTHENTICATION OF ESI# Authen0ca0on requires that the party proffering the evidence produce a baseline ( prima facie ) showing that the evidence really is what that party claims it to be. Whether the proffered evidence is, in fact, that thing, is for the jury to decide.

10 METHODS OF AUTHENTICATING ESI Tes0mony of a witness with knowledge. Comparison by an Expert Witness or the Trier of Fact. Dis0nc0ve characteris0cs in the content. Dis0nc0ve technical characteris0cs.

11 AUTHENTICATING PARTICULAR KINDS OF ESI o presence of the witness s address is not, alone, sufficiently dis0nc0ve. o Can authen0cate a website with assistance of web cataloguing service. o Instant messaging, text messaging o Recorded voice/voic

12 HOW DO YOU GET EVIDENCE OF AUTHENTICITY? Forensic expert Requests for Admission or Interrogatories Deposi0on tes0mony

13 Authen0city and Cyber Bullying Authen0ca0on of social media accounts Characteris0cs of a par0cular party in the profile may not be enough to link it to the party, e.g. profile picture, date of birth, etc. Griffin v. State of Maryland, 19 A.3d 415 (M.D. 2011) (reversing convic0on) offers 3 avenues for authen0ca0on of social media

14 STORED COMMUNICATIONS ACT (SCA) prohibits electronic communica0on service providers and remote compu0ng service providers from knowingly disclosing the contents of customer s electronic communica0ons or subscriber records. 18 U.S.C.A. 2702(a) Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008), can direct the request to the party who wrote the communica0ons, to obtain them from the provider and produce them.

15 FRYE/DAUBERT Frye and Daubert are the two tests that govern the admissibility of expert tes0mony, based on certain standards of reliability/acceptability. DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC., 509 U.S. 579 (1993)

16 DAUBERT o If scien0fic, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or educa0on, may tes0fy thereto in the form of an opinion or otherwise, if: The tes0mony is based upon sufficient facts or data, The tes0mony is the product of reliable principles and methods, and The witness has applied the principles and methods reliably to the facts of the case.

17 FRYE/DAUBERT (CONT D) FRYE V. UNITED STATES, 293 F (D.C. Cir. 1923) Generally accepted is the beginning and end of the test. This creates an issue with new or novel scien0fic tes0mony. Pennsylvania is one of very few states that s0ll adheres to the Frye standard. Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003)

18 COMPUTER FORENSICS CASES Patrick Collins, Inc. v. John Doe 1, 2012 U.S. Dist. LEXIS (E.D. N.Y. Nov. 20, 2012), holding that an IP address alone does not iden0fy a person. However, United States v. Huether, 673 F.3d 789 (8th Cir. 2012) holding a computer forensics expert may iden0fy a specific person who downloaded informa0on on par0cular computers based on the user s access to the computers and a similarity of file structures.

19 Geoloca0on and the Adnan Syed case

20 Geoloca0on data from 1999 based on cell tower pings for incoming calls. The state s cell phone expert was a Radio Frequency Engineer dealing with devices like cell phones designed to work with radio frequency

21 CONCERNS ABOUT THE RELIABILITY OF THE EXPERT S TESTIMONY

22 APPLICATION OF FRYE Under FRYE, the prosecu0on would have to show that the methodology and the conclusions by their expert were accepted within the general scien0fic community

23 APPLICATION OF DAUBERT Daubert will allow in novel approaches, so long as the scien0fic approach is based in sound scien0fic principles. This expert s tes0mony probably was not based in sound science.

24 MOBILE FORENSICS CASES# United States v. Banks, 93 F. Supp. 3d 1237 (D. Kan. 2015) (considering utility and limitations on expert testimony concerning cell-site data)

25 United States v. Evans, 892 F. Supp. 2d 949 (N.D. Ill. 2012) (allowing expert testimony about the general topic of how cellular networks operate, but disallowing expert testimony on the theory of granulization ) United States v. Allums, 2009 U.S. Dist. LEXIS (D. Utah 2009) (cell-site data in conjunction with Stingray) Murray v. Motorola, Inc., 2001 CA 8479 B, 2014 D.C. Super. LEXIS 16 (D.C. Super. Aug. 8, 2014) (considering admissibility of expert testimony that cell phones cause brain cancer under Frye analysis)

26 Thank You ELIZABETH F. COLLURA