THE INTERNET IN THE COURTROOM IS IT ADMISSIBLE? Judge Michael Fitzpatrick I. INTRODUCTION.

THE INTERNET IN THE COURTROOM IS IT ADMISSIBLE? Judge Michael Fitzpatrick I. INTRODUCTION. A. Electronically stored information (ESI) and social media are omnipresent. 1. Over a billion people use Facebook each month. 2. Two-thirds of adults with internet access use social media sites such as Facebook, Twitter, My Space and LinkedIn. 3. By 2020, 26 billion devices will be connected to the internet. 4. 2.5 billion emails are sent each day. 5. Younger adults average over 100 text messages per day or about three thousand per month. B. What is ESI? 1. Examples are email, social media posts, website content, and text messages. 2. Codified at Sec. 804.09(1)a)1. 3. It states, in relevant part: (1) Scope... electronically stored information, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any other medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form... 4. The Judicial Council Note makes clear that the definition applies to all ESI references in Wisconsin Statutes: References elsewhere in the rules to "electronically stored information" should be understood to invoke this expansive approach. C. What is social media? 1. Social media is a relatively new term dating back only about a dozen years. a. It is defined as forms of electronic communications through which users create online communities to share information, ideas, personal messages, and other content. Social media allows individuals and businesses to use 1

the internet to create and exchange user-generated content that is continually modified by users in a participatory and collaborative fashion. Merriam-Webster Dictionary and Kaplan and Haenlein, Users of the World, Unite! The Challenges and Opportunities of Social Media, 53 Bus. Horizons 59, 61 (2010). D. The focus, until now, has mostly been on discovery of ESI. But, are forms of ESI and, more particularly, social media posts admissible in evidence? 1. Why is this question important to Wisconsin attorneys? a. Emails, printouts of electronic files from social media websites, and other ESI on the internet are seen more and more often in every type of case. i. ESI concerns activities of parties, state of mind, intent, and motive. b. Questions about the admissibility of ESI and social media will occur more often. Circuit Judges have broad discretion to admit or exclude evidence. Those decisions will not be overturned on appeal if the Judge demonstrates a rational process and applies the proper legal standards. Martindale v. Ripp, 246 Wis. 2d 67, 86 (2001). i. This outline and the presentation will discuss the proper legal standards for the admissibility of ESI and social media so you may use that information in your practice. E. Secs. 911.01(1) and (2) require that the Wisconsin Rules of Evidence apply generally in proceedings in Wisconsin Courts. a. The drafters of the Wisconsin Rules of Evidence never imagined ESI. So, we do not have different rules of evidence for ESI, and the analysis must fit within the framework of the current rules. b. The good news is that the rules are elastic enough to encompass ESI. Sec. 901.02 calls for the Wisconsin Rules of Evidence to be construed to promote growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. F. Admissibility of ESI, including social media, is best considered in stages, each of which must be satisfied: 1. Is the ESI relevant as required by Sec. 904.01? (Does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be?) 2. Is it authentic as required by Sec. 909.01? (Can the proponent show that the ESI is what it is purported to be?) 2

3. If offered for its substantive truth, is the ESI hearsay as defined by Sec. 908.01 and, if so, is it covered by an applicable exception to the hearsay rule? 4. Is the form of the ESI offered an original or duplicate under the Original Writings Rule of Chapter 910? The four substantive steps concerning the admissibility of ESI will now be considered. II. IS THE PROPOSED ESI EVIDENCE RELEVANT? A. The first step in the analysis is to determine if the proffered evidence is relevant. Evidence is relevant if it has... any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Sec. 904.01. B. Relevancy is not inherently characteristic of any evidence but exists only in relation between evidence and a matter provable or at issue in the case. Lorraine v. Markel, 241 F.R.D. 534, 540-541 (D. Md. 2007) (Lorraine is considered the seminal case on the admissibility of ESI). C. That concept is engrained in the Wisconsin Rules of Evidence in that Sec. 901.06 states that evidence may be admissible for one purpose but not another, or against one party but not another. D. Whether evidence is relevant is a fairly low burden. 1. Remember, there is a distinction between admissibility as opposed to the weight the fact-finder must give to evidence. Sec. 901.04(5). E. If evidence is determined to be relevant, then Sec. 904.02 comes into play. It states that all relevant evidence is admissible, except as otherwise provided by the Constitutions of the U.S. and Wisconsin, by statutes, or by rules. F. So, once evidence is found to be relevant, it is presumptively admissible. The next step concerning ESI, authentication, must now be reviewed. Authentication is a subset of relevancy since evidence cannot make the existence of a disputed fact more or less likely if the evidence is not what the proponent claims. Lorraine, 241 F.R.D. at 539. But authentication deserves a separate, and detailed, discussion. III. AUTHENTICATION OF ESI. A. The issue of authentication begins to get to the heart of the problem. Section 909.01 is relatively simple: The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 3

B. Section 909.01 concerning authentication is inextricably linked with Sec. 901.04(2) and those rules must be examined together. Those rules, working together, outline the relationship between the Judge and the jury in the admissibility of certain types of evidence. 1. That relationship is a necessary starting point to understand authentication of ESI. 2. These Wisconsin Rules of Evidence are virtually identical to Federal Rules of Evidence 104 and 901, so federal case law is of assistance. State v. Whitaker, 167 Wis. 2d 247, 260 (Ct. App. 1992). C. Sec. 901.04(2) states: (2) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. D. Section 901.04(2) has been referred to as the most enigmatic evidence rule. Authentication of Social Media Evidence, Grimm, Bergstrom, and O Toole-Loureiro, 36 Am. J. Trial Advoc. 433, 439 (2013). 1. The good news is that you understand this rule and have been using it for years. As the United States Supreme Court has said about this rule of evidence: Perhaps it is a task, like riding a bicycle, that is easier to do if you do not think too much about what you are doing. U.S. v. Zolin, 491 U.S. 554, 563, fn. 7 (1989). E. How does the Rule work? Under Sec. 901.04(2), the Judge determines conditional relevancy. The Judge makes sure there is sufficient evidence to support a finding that the proposed evidence is what the proponent says it is. 1. The Judge decides only whether the jury, if it acts reasonably, could find the evidence is what is contended. Bruckner v. Prairie, 81 Wis. 2d 215, 222 (1977); City of New Berlin v. Wertz, 105 Wis. 2d 670, 676 (Ct. App. 1981); and Dow v. PHH Mortgage, 350 Wis. 2d 411, 20-23 (Ct. App. 2013), that issue was affirmed in 2014 WI 56. 2. In making the determination of conditional relevancy, however, the Court may only consider evidence that is itself admissible. Conditional relevancy requires the Judge to play the role of limited gatekeeper screening evidence only to see if there is sufficient proof to support a finding of the conditional fact before the jury hears the evidence. a. This is what is typically know as laying a foundation for the evidence. 4

b. Think of it this way: The Judge determines only whether the burden of production has been satisfied by the proponent. The question is not whether the Judge is convinced the alleged fact is true. Instead, the Judge only decides whether a jury, acting reasonably, could find that the disputed fact is more likely than not. This applies in all civil and criminal cases in Wisconsin. See State v. DeSantis, 155 Wis. 2d 774, 786, fn. 5 (1990) and State v. Giacomantonio, Wis. 2d (Ct. App., July 12, 2016, 2016 WL 3676960 at 24 and 25; recommended for publication). c. The preliminary determination on the admissibility of conditionally relevant evidence is whether a reasonable fact-finder could find the evidence to be what it purports to be by a preponderance of the evidence. See Bourjaily v. U.S., 483 U.S. 171 (1987) and FRE 104 Advisory Committee s Notes. d. This distinction between the Judge s role and the jury s role is further codified in Sec. 901.04(5) which states that the jury hears evidence relative to weight or credibility. 3. An example draws the distinction to light. a. In State v. Gray, 225 Wis. 2d 39, 59-61 (1999) the question was whether the defendant was involved in prior acts. Under. Sec. 901.04(2) the Court determines whether a reasonable jury could find that the defendant committed those other acts. 4. It must be kept in mind that, if the Judge has made a preliminary determination of admissibility outside the presence of the jury (e.g., a motion in limine), the issue must be revisited at trial. The evidence which supported the determination from the Judge must now be presented again, to the jury, before the evidence may be admitted and the jury then determines whether the evidence should be given weight. Lorraine, 241 F.R.D. at 540 (citing U.S. v. Branch, 970 F.2d 1368, 1370 (4 th Cir. 1992)). F. When applying the authentication standards to websites and social media postings, three practical questions must be answered: a. What was actually on the website at the relevant time? b. Does the exhibit or testimony accurately reflect it? c. If so, is it attributable to the alleged author? O Connor v. Newport Hospital, 111 A.3d 317, 324 (R.I. 2015) (quoting Mueller and Kirkpatrick, 5 Federal Evidence Sec. 9.9 (4 th Ed.)). G. Courts around the country have, generally, broken into two different camps concerning the authentication of ESI, especially postings from social media websites. A review of each approach is instructive. One reason for these 5

divergent approaches is the view of some Judges that what is on the internet cannot be trusted. Here is an example from one Judge s findings: While some look to the internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as not to mince words, the Court reiterates that this so-called web provides no way of verifying the authenticity of the alleged contentions the plaintiff wishes to rely upon in his response to defendant s motion. There is no way the plaintiff can overcome the presumption that the information he discovered on the internet is inherently untrustworthy. Anyone can put anything on the internet. No website is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content of any web-site from any location at any time. 1. One approach is generally referred to as the Maryland approach. a. Courts adopting that view have expressed skepticism about the admission of social media evidence, or a website page, when the proponent failed to produce evidence that disproved the possibility that someone other than the alleged creator of the evidence manipulated it. b. The mere chance that the evidence may have been created by someone other than its alleged author (even when there was no evidence that manipulation actually occurred) was sufficient for those Courts to exclude the evidence. c. Pursuant to the Maryland approach, social media evidence may be authenticated through only three methods: i. The testimony of the creator; ii. iii. Proof from the internet history or hard drive of the purported creator s computer; or Through information obtained directly from the social networking site. d. Without evidence of these exacting requirements, social media evidence will not be admitted under the Maryland approach and the jury will not see it. See Griffin v. State, 19 A.3d. 415 (Md. 2011); State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011); People v. Beckley, 110 Cal. Rptr. 3d 362 (Ct. App. 2010); People v. Lenihan, 911 N.Y.S.2d 558 (N.Y. Sup. Ct. 2010); Commonwealth v. Williams, 926 N.E.2d 1162, 1171 (Mass. 2010); and U.S. v. Vayner, 769 F.3d 125 (2d Cir. 2014) (If a piece of paper was found on the street and the only authenticating evidence on the paper was the name of 6

the defendant and his birth date, it would be unlikely that it would be admitted into evidence.) 2. The other method, generally known as the Texas approach, holds that all the proponent must do to authenticate social media evidence is to introduce sufficient facts by any of the methods identified by Sec. 909.015 (more about that later) which could persuade a reasonable juror that the social media evidence was created by a certain person. a. Once the proponent brings in enough evidence which could convince a reasonable juror that the social media evidence is authentic, the burden of production shifts to the party objecting to the evidence to prove facts demonstrating that the evidence is not authentic. b. With this approach, social media can be authenticated using any type of evidence so long as it can be demonstrated to the Judge that a jury could reasonably find that the evidence is authentic. c. Rather than imposing a requirement that the proponent of the social media evidence shows that it was not fraudulent, the Texas approach explains that the standard for determining admissibility is whether a jury could find the proffered evidence authentic. d. The Texas approach is a lower hurdle than the Maryland approach and allows the jury to resolve issues of fact when ESI or social media authenticity is challenged. See Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012); Manuel v. State, 357 S.W.3d 66 (Tex. Ct. App. 2011); In Re T.T., 228 S.W.3d 312 (Tex. Ct. App. 2007); Parker v. State of Delaware, 85 A.3d 682 (2014); People v. Clevenstine, 891 N.Y.S.2d 511 (N.Y. App. Div. 2009); and People v. Valdez, 135 Cal. Rptr. 3d 628 (Ct. App. 2011). H. It appears that Wisconsin has, in effect, adopted the Texas approach. See Giacomantonio, 2016 WL 3676960 at 13-32. I. Keep in mind that, even if the ESI and social media evidence is admitted, the objecting party is free to proffer other evidence to show that the ESI or social media is not authentic. Vaynor, 769 F.3d 125; Parker, 85 A.3d at 688; Giacomantonio, 2016 WL 3676960 at 24 and 25 ( [Defendant] was welcome to cross-examine the victim or any other person regarding whether the text messages had been altered or falsely manufactured ); and Sec. 901.04(5) ( This section does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. ). J. Now that we know how authentication of ESI has been handled in different Courts, let s see how the Wisconsin Rules of Evidence allow for authentication. 7

1. ESI does not warrant different or more stringent rules than those used to authenticate other correspondence. Giacomantonio, 2016 WL 3676960 at 19 and 26 2. Section 909.015 gives illustrations of how evidence may be authenticated. Those illustrations are examples and not rules. See Federal Rule of Evidence 901(b) Advisory Committee Note. K. Under Sec. 909.015(1), ESI may be authenticated through [t]estimony of a witness with knowledge that a matter is what it is claimed to be. In other words, someone saw, heard, or perceived something. 1. This is considered a light burden and is liberally construed. Lorraine, 241 F.R.D. at 545. 2. This authentication process is often used for websites. The party proffering the evidence produces testimony from someone with knowledge of the website (a webmaster, the creator, or another with personal knowledge) that the website had certain writing, pictures, or sounds on it as of a certain day. Lorraine, 241 F.R.D. at 545 (citing Wady v. Provident, 216 F. Supp. 2d 1060 (C.D. Cal. 2002)). The authenticating witness often provides testimony about the process by which the ESI was created, acquired, maintained and preserved. Lorraine, 241 F.R.D. at 545-546. L. Under Sec. 909.015(4) ESI may also be authenticated by [a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. 1. Email, text messages, and social media posts are important for business and personal communication. Those often figure prominently in cases in which state of mind, sequence of events, or intent need to be proved. Lorraine, 241 F.R.D. at 554; U.S. v. Safavian, 435 F. Supp. 2d 36, 40 (D. D.C. 2006); and People v. Harris, 945 N.Y.S. 2d 505, 507 (N.Y. Crim. Ct. 2012) (Twitter has become a significant method of communication). 2. In Wisconsin, authentication of evidence may be done through circumstantial evidence. Campbell v. Wilson, 18 Wis. 2d 22, 30, fn. 1 (1962) and State v. Baldwin, 330 Wis. 2d 500, 526 (Ct. App. 2010). See, also, R.S. v. Milwaukee Co., 154 Wis. 2d 706, 716 (Ct. App. 1990) (reversed on other grounds, 162 Wis. 2d 197 (1991)), a doctor s report was authenticated because the report had the doctor s letterhead and handwritten signature. a. Email and other ESI may be authenticated by this rule. See Safavian, above, and U.S. v. Siddiqui, 235 F.3d 1318, 1322 (11 th Cir. 2000) (allowing authentication of email by circumstantial evidence including presence of defendant s work email address, use of a nickname, and testimony by witnesses that defendant spoke to them about subjects contained in the email). 8

b. Another example is U.S. v. Fluker, 698 F.3d 988, 999 (7 th Cir. 2012) (authenticated with an email address and the substance of the email itself to confirm the writer). c. The Wisconsin Court of Appeals has recently held that text message authentication requires a relatively low standard which can be achieved through testimonial evidence of a witness with knowledge and circumstantial evidence. Text messages and other ESI do not require new rules of authentication. Giacomantonio, 2016 WL 3676960 at 26 (citing State v. Thompson, 777 N.W.2d 617, 624-25 (N.D. 2010); State v. Smith, 2015 WL 1525213 at page 11 (Ala. Civ. App. Apr. 3, 2015); State v. Bickerstaff, 2015 WL 5728518 at page 4 (Ohio Ct. App. Sept. 30, 2015); and Butler v. State, 459 S.W.3d 595, 603 (Tex. Crim. App. 2015)). 3. Email may also be authenticated through metadata under Sec. 909.015(4). a. What is metadata? i. Electronically stored information about: - Who created/changed the information? - How was it changed? - Who deleted it? - Who looked at it? - When did these events occur? - Who sent or received the ESI? b. Metadata may make a difference in litigation in various ways, including: i. Shows a sequence of events. ii. iii. Evidence of knowledge or intent. Evidence of destruction or changes of information. c. Does metadata come within the definition of ESI under Wisconsin law? i. No Wisconsin case, published, unpublished, or in the Circuit Courts, has been found which has decided whether metadata is discoverable or admissible. ii. The federal courts do not take a uniform approach to this issue. d. While not conclusive, metadata may be a useful tool for authenticating ESI by use of distinctive characteristics. Lorraine, 241 F.R.D. at 548. 9

M. Sec. 909.015(3) regarding expert testimony is another possible method for authentication of ESI. As an example, in U.S. v. Bansal, 663 F.3d 634, 667 (3d. Cir. 2011) and O Connor, 111 A.3d at 324, an expert from the Internet Archive Company (or a similar service) testified concerning their use of a program which allows website visitors to search for archived web pages. See www.archive.org. N. Under Sec. 909.015(9), ESI may be authenticated by: Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. 1. This rule is designed for situations in which the accuracy of a result is dependent upon a process or system which produces it, rather than a person. It is well-suited to authenticate computer-generated evidence and automatic video surveillance tapes. a. It may not be necessary to have expert testimony explain the physical processes of the system. Instead, someone who has training and understands how the process operates, its accuracy, and its reliability may be sufficient. State v. Kandutsch, 336 Wis. 2d 478, 490-498 (2011). b. Nonetheless, computer-generated evidence must always have a proper lay or expert foundation. State v. Denton, 319 Wis. 2d 148, 732-736 (Ct. App. 2009). i. See, also, State v. Hall, 976 S.W. 2d 121, 147 (Tenn. 1998) (a computer system process should be measured by the reliability of the system itself relative to its proper functioning and accuracy). O. A record may also be authenticated if it was produced by a party against whom the record is to be used. In other words, a party cannot voluntarily produce ESI in discovery and represent its authenticity, but then complain later that authenticity is lacking. Perfect 10 v. Cybernet, 213 F. Supp. 2d 1146, 1153-54 (C.D. Cal. 2002). IV. HEARSAY ISSUES AND ESI. A. Several questions must be asked when discussing ESI and hearsay: 1. Does the evidence constitute a statement as defined by Sec. 908.01(1)? 2. If so, was the statement made by a declarant, as defined by Sec. 908.01(2)? 3. Is the statement offered to prove the truth of its contents as required by Sec. 908.01(3)? 4. Is the statement excluded from the definition of hearsay by Sec. 908.01(4)? 10

5. If the statement is hearsay, does it come within one of the exceptions to the hearsay rule? Each question will be reviewed in turn. B. Sec. 908.01(1) reads: A statement is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by the person as an assertion. 1. The word statement is used in a very precise sense and applies only to verbal or non-verbal conduct that is intended by a human declarant to be assertive. As a result, all verbal or nonverbal conduct not intended as an assertion is not a statement. Lorraine, 241 F.R.D. at 563. 2. When an electronically-generated record is entirely the product of the functioning of a computerized system or process, such as the report generated when a fax is sent showing the number to which the fax was sent and the time it was received, there is no person involved in the creation of the record and no assertion is made. Lorraine, 241 F.R.D. at 564. See, also, U.S. v. Hamilton, 413 F.3d 1138, 1142 (10 th Cir. 2005) (headers generated by a computer are not hearsay). C. Next, Sec. 908.01(2) states: A declarant is a person who makes a statement. 1. The declarant must be a human being. Evidence produced by machines does not come within that definition and, therefore, is not hearsay. Kandutsch, 336 Wis. 2d at 502-503. 2. There is a distinction between computer-stored records and computergenerated records. a. Computer-stored records may be hearsay because those store or maintain statements and assertions of a human being. Kandutsch, 336 Wis. 2d at 503. b. In contrast, computer-generated records are those that represent selfgenerated records of a computer s or a machine s operations resulting from its programming. Examples are an ATM receipt, a car speedometer reading, a seismograph printout, and a flight recorder black box. Kandutsch, 336 Wis. 2d at 503-504. 3. Computer-generated records are not hearsay because the hearsay rule is designed to protect against the four testimonial infirmities of: ambiguity; insincerity; faulty perception; and erroneous memory. A record created as a result of a computerized or mechanical process cannot lie. It cannot forget or misunderstand. Although data may be lost or garbled as a result of some malfunction, such a malfunction would go to the weight of the evidence, not its admissibility. The record does not present the danger of being taken out of context, because the opposing party has the right to put it in context. 11

(assumedly, through cross-examination and the introduction of other evidence). Kandutsch, 336 Wis. 2d at 505. See, also, State v. Zivcic, 229 Wis. 2d 119, 131 (Ct. App. 1999) (concerning written output from a breathalyzer). D. The third hearsay question is whether the statement from a declarant is offered for its substantive truth. 1. If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted. Lorraine, 541 F.R.D. at 566 (as an example, unauthorized use of a trademark). 2. There are several examples in the ESI context. Facebook massages are classic hearsay unless the author testifies. Witt v. Franklin Co., 2013 WL 832152 (N.D. Ala. 2013). But, emails between a party and a co-worker are not hearsay if those are used to show that it was customary for them to communicate by email. Siddiqui, 235 F.3d at 1323. Emails used to define the terms of a contract are not hearsay because the substance of the emails constitutes legally operative facts. Preferred Properties v. Indian River, 276 F.3d 790, fn. 5 (6 th Cir. 2002) and Dow v. PHH, 350 Wis. 2d 411, 421 (Ct. App. 2013) (albeit outside the ESI context). E. Next, is the ESI outside the definition of hearsay under Sec. 908.01(4)? It is common, in the ESI context, to enter into evidence an email which contains an admission by a party opponent under Sec. 908.01(4)(b). 1. Any statement made by a party and offered against the party is not hearsay. Sec. 908.01(4)(b)1. But, the statement must be used by an opponent. It cannot be offered into evidence by the party who uttered or wrote the statement. State v. Pepin, 110 Wis. 2d 431, 434 (Ct. App. 1982). In the ESI realm, see U.S. v. Harry, 927 F.Supp.2d 1185, 1220 (D.N.M. 2013). a. It is important not to confuse an admission by a party opponent which is not hearsay with the exception to the hearsay rule under Sec. 908.045(4). That exception concerns admissions against interest. The statement may be from anyone not just a party and is admissible only when the declarant is unavailable. It may very well be that an admission by a party opponent which is not hearsay may be to the detriment of the declarant, but Sec. 908.01(4)(b) does not require the declarant to be unavailable. F. The final question about hearsay concerns whether, if it is hearsay, the ESI meets any of the exceptions to the hearsay rule. Because of the number of hearsay exceptions, it is not possible to give a treatment to each one in this outline. However, two are worth noting. 1. The first is the regularly-conducted activity exception (also know as business records exception) under Sec. 908.03(6). The approaches to this problem in federal court in ESI-related cases have run the gamut from a demanding 12

analysis to a flexible approach. See State of New York v. Microsoft, 2002 WL 649951 (D.D.C. 2002) and Penberg v. Health Bridge, 823 F. Supp.2d 166, 187 (E.D.N.Y. 2011). 2. Wisconsin has an exception to the hearsay rule which is not in the Federal Rules of Evidence and has been adopted by few states. In fact, only Wisconsin and Hawaii adopt the rule for civil and criminal cases. It is useful concerning the admissibility of ESI, especially emails. Sec. 908.045(2) states that, if the declarant is unavailable as a witness: A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant's recollection was clear. a. This exception is based on a premise that probative evidence in the form of statements which fail to satisfy the present sense impression or excited utterance exception would otherwise be lost if the statements are unavailable in evidence. State v. Weed, 263 Wis. 2d 434, 449 (2003). b. Sometimes witnesses are out of range of a subpoena, dead, cannot be found, or do not remember details. So, copies of emails retained by the parties may be the only ones available. V. ORIGINAL WRITINGS RULE AND ESI. A. This has often been referred to as the Best Evidence Rule, but that is not accurate. Anderson v. State, 66 Wis. 2d 233, 246 (1974). 1. There is no best or hierarchy of evidence. The aptly-termed Original Writings Rule does not mandate introduction of best evidence to prove contents of a writing, recording, or photograph but requires such proof by, generally, an original or duplicate. Lorraine, 241 F.R.D. at 576, fn. 54. 2. The purpose of the rule is to prevent fraud on the trier of fact. Giacomantonio, 2016 WL 3676960 at 32 (citing Grunwaldt v. State Highway Comm., 21 Wis. 2d 153, 163 (1963)). 3. In practice, Chapter 910 is relatively liberal in its application and is important to the analysis of ESI admissibility. B. Writings, recordings, and photographs are defined in Sec. 910.01(1) and (2) as: (1) Writings and recordings. "Writings" and "recordings" consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, 13

magnetic impulse, mechanical or electronic recording, or other form of data compilation or recording. (emphasis added). (2) Photographs. "Photographs" include still photographs, X-ray films, and motion pictures. Sec. 910.01(3) and case law define original as: An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it... If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original." See, also, Giacomantonio, 2016 WL 3676960 at 30 (citing Steele v. Lyon, 460 S.W.2d 827, 831 (Ark. Ct. App. 2015)) (screen shots of text messages satisfied printout or... output rule defining originals). Duplicate is defined in Sec. 910.01(4) as a counterpart produced by mechanical or electronic rerecording,... or by other equivalent technique which accurately reproduces the original. In the ESI realm, three conclusions may be drawn from those rules: 1. A computer file on a hard drive, flash drive, or diskette constitutes a writing or recording which exists in electronic form. 2. Data stored in a computer or similar device with output readable by sight that is an accurate reflection of the data is an original. 3. If that same information can be transferred electronically or to paper, it is then a duplicate. 4. Accurate duplicates of an original are as admissible as the original. C. Sec. 910.02 states: To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in chs. 901 to 911, s. 137.21, or by other statute. 1. Generally, duplicates are admissible to the same extent as an original and a duplicate is not inadmissible because it is in electronic format. See Sec. 910.03 and Giacomantonio, 2016 WL 3676960 at 31. 2. Instead, a duplicate may be excluded from evidence only if a genuine question is raised as to the authenticity or it would be unfair to admit the duplicate in lieu of an original. The burden is on the opponent to demonstrate there is a genuine question of fact regarding authenticity of the original from which the duplicate was made. Schulz v. St. Mary s Hospital, 81 Wis. 2d 638, 648 (1978); Giacomantonio, 2016 WL 3676960 at 31. 14

3. As to unfairness, the Federal Advisory Committee Notes to F.R.E. 1003 show that unfairness may be that only part of the original was duplicated, and the full original may be entered into evidence. D. The key to the rule is to determine when the contents of a writing, recording or photograph are being proved, as opposed to proving events that just happen to be recorded or photographed. 1. As an example, proof that someone is married may be made by the testimony of a witness to the ceremony and the marriage license is not required. However, the rule applies if the only proof of the marriage is through the marriage license itself. 2. Also, proving legal transactions such as wills, contracts, and deeds usually involves the Original Writings Rule because the documents themselves have the central legal significance. Lorraine, 241 F.R.D. at 576-579. E. Keep in mind that deponents are often asked questions about the contents of writings or recordings. Pursuant to Sec. 910.07, contents of writings, recordings, or photographs... may be proved by the testimony or deposition of the party against whom offered without accounting for the original. So, if a deponent admits to the contents of a website, email, social media post, or text message to be used against him, that satisfies Sec. 910.02. F. How does this work in practice? Sec. 910.08 again raises the distinction between the decisions of the Judge versus the jury. It states: When the admissibility of other evidence of contents of writings, recordings or photographs under chs. 901 to 911 depends upon the fulfillment of a condition of fact, the question of whether the condition has been fulfilled is ordinarily for the judge to determine. However, when any of the following issues is raised, the issue is for the trier of fact to determine as in the case of other issues of fact: (1) Whether the asserted writing ever existed. (2) Whether another writing, recording or photograph produced at the trial is the original. (3) Whether other evidence of contents correctly reflects the contents. 1. The Judge first determines whether there is admissible evidence to permit a jury to answer those three questions. The jury then decides whether it is persuaded that those facts exist. 2. Note how Sec. 910.08 uses the term condition of fact. As a result, the Judge s determination is done under Sec. 901.04(2) and the Wisconsin Rules of Evidence apply to the Judge s determination as to whether there are sufficient facts to make this a jury question. 15