Electronic Evidence in UI Hearings NAUIAP 2016 Jennifer Duddy, ME Danielle Angliss, CT

Electronically Stored Information (ESI)

“Perhaps because of the spontaneity and informality of , people tend to reveal more of themselves, for better or worse, than in other more deliberative forms of written communication. For that reason, evidence often figures prominently in cases where state of mind, motive and intent must be proved. Indeed, it is not unusual to see a case consisting almost entirely of evidence. See, e.g., Safavian, 435 F. Supp. 2d 36.” Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 5554 (D. Md. 2007) The Prevalence of ESI

Admissibility of Electronically Stored Information ( Admissibility of Electronically Stored Information (ESI) Seminal decision from the United States District Court, District of Maryland, regarding admissibility of electronically stored information (E.S.I) under the federal rules of evidence: Lorraine vs. Markel American Insurance Company, 241 F.R.D. 534, 585(D. Md. 2007).

Lorraine v. Markel American Ins. Co., cont’d The court looked at the admissibility of five types of electronically stored Information: Internet Website Postings Text Messages Computer Stored Records and Data (e.g., IRS returns) Digital Photos

The Court ruled that the fundamentals apply to the admissibility of ESI:*Relevance*Authenticity*Hearsay *Original Writing / Best Evidence Rule *Whether the Probative Value Outweighs Any Prejudice Lorraine v. Markel American Ins. Co., cont’d

Forms of evidence we see:  Documentary: Typically electronic communications are reduced to a legible document for entry into evidence at hearing  Testimony: Communications are read into evidence by the hearing officer or a party.  Video and audio recordings. Unemployment Cases

Authenticating Electronic Evidence A party need only make a prima facie showing that the evidence is what he or she claims it to be. FRE at § [3]. **Metadata IS NOT required to authenticate electronic evidence**

What is Metadata? The term ‘‘metadata’’ has been defined as ‘‘data about data’’; (Lorraine v. Markel American Ins. Co., supra at 547); and refers to computer-generated information describing the history, tracking or management of electronically stored information. Meta data may be offered by an employer to establish a claimant’s excessive computer use (e.g.,“hits”). (DA – how is it authenticated?? Is meta data computer generated record so goes put this second paragraph in that section??)

Authenticating – Lorraine, cont’d may be authenticated by direct and circumstantial evidence. *The sender’s , along with a response through the “reply” function, may be sufficient circumstantial evidence. However, there is a potential for unauthorized transmission. It is preferable to have testimony from someone with personal knowledge of transmission or receipt. *An message’s distinctive characteristics, including its contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circumstances, may be sufficient to authenticate.

Authenticating Text Messages Text messages are similar to but offer additional issues: Claimant may come to hearing with his or her phone, but no hard copy of the message; It may be difficult to identify the sender; Copies are often illegible; Copies may not be in chronological order; It may be difficult to identify whether parts of the conversation were omitted; Other?

Authenticating Text Messages

Authenticating Internet Messages/Chat Room Content In Re F.P., A Minor, 878 A.2d 91, 94 (PA. Super. 2005): The Court noted that authentication could be accomplished by direct evidence, circumstantial evidence, or both, but ultimately held that transcripts of an instant messaging conversation circumstantially were authenticated based on the presence of the defendant’s screen name, use of the defendant’s first name, and content of the threatening message, which other witnesses had corroborated.

Authenticating Text, Internet and Messages – cont’d Is the message what the party offering it purports it to be? Who wrote/ created the message? When was the message written or created? To whom was the message sent and for what purpose? Was the printed version of the communication obtained from a reliable source?

Is there an objection to the communication based on authenticity? o Was the communication altered? o Was the communication fabricated? If so, does the party objecting have a correct version that can be offered into evidence? o Was a section of the communication omitted from the printed document? If so, does the party objecting have the complete version? Authenticating Text, Internet and Messages – cont’d

Traditionally, a photograph or videotape is admissible if a witness verifies that the photograph or videotape is a fair and accurate representation of what is depicted. Authenticating Photographs and Videos

Authenticating Digital Photographs – Lorraine, cont’d Digital photographs pose unique issues with authenticating because they may be manipulated and/or altered. Aspects of the photograph may be removed, inserted and altered.

Digital Photographs – cont’d  Factors to consider: ◦ Are the individuals depicted in the photo/video sufficiently identified? ◦ Is the location being photographed/ video taped sufficiently identified? ◦ Who took the photograph or video and when? Did they edit/alter it? ◦ Was the photograph/video made in the regular course of business? ◦ Has any party objected to the authenticity of the photo/video?

Authenticating Social Media Postings – Lorraine v. Market American Ins. Co. Most Common Methods of Authenticating: Personal knowledge Personal knowledge – Authenticating by a witness with personal knowledge; Comparison Comparison to items (exemplar) that have been authenticated; distinctive characteristics taken in conjunction with circumstances. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

June 4, :00 p.m. Jo and I are really downing the martinis tonight!

Authenticating Computer Generated Records – Lorraine Courts have applied varying standards: -Comes in as a business record; -Need to produce evidence that the computer system reliably and accurately produces records or data of the type that is being offered; -Need to produce evidence the record as created was preserved.

Authenticating Voice Mail Recordings A voice, whether heard first-hand or through mechanical or electronic transmission or recording, may be identified by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. FRE § 901(b)(5).

Authenticity – Generally Credible, first-hand testimony from an individual who viewed a text message, , electronic message, photograph, video, listened to a voice mail message, etc. may satisfy the employer’s burden of proof regardless of whether the ESI itself is entered into evidence.

Reliability of Electronic Evidence -ESI may be subjected to the same reliability tests as other forms of hearsay: *Does it fall within a hearsay exception, such that it may be deemed more reliable? (admissions, business records) *Using the four part reliability test of Richardson v. Perales, 402 U.S. 389 (1971): -The nature and atmosphere of the proceeding; -The availability of the witness-declarant; -The lack of bias or interest of the witness declarant; and -The quality and probative value of the statements.

HYPOTHETICAL