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Email as Evidence. JOHN D. GREGORY DANIEL J. MICHALUK June 11, 2009. Email as Evidence. Outline Definitions Relevance Access Production Admissibility and Weight Case studies. Definitions. Email and e-messages 1970s Classic email (SMTP) 1980s Bulletin boards, MUD 1990s

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email as evidence

Email as Evidence



June 11, 2009

email as evidence2
Email as Evidence


  • Definitions
  • Relevance
  • Access
  • Production
  • Admissibility and Weight
  • Case studies

Email and e-messages


Classic email (SMTP)


Bulletin boards, MUD


Web mail, ICQ, computer-generated or –received faxes


IM, Social networks, Twitter

Remix of all of the above

VOIP? (Skype = voice + image + IM)

Multiplication of carriers : e-messages in the cloud


Why focus on email issues?

  • It’s still the killer app
    • Everybody uses email and (more or less) understands it
    • Can be particularly potent evidence – Gates, Black, Poindexter
  • Information in transit: special issues
    • Multiplicity of repositories
    • Jurisdiction
    • Communications/speech issues with content
    • Impermanence
  • Paradigm case
    • Raises many issues in strong ways that appear elsewhere
    • Evolves quickly – the answers keep changing


The traditional “no expectation of privacy” view

The balancing of interests approach

The beyond control approach

And practice

What employers should do


No expectation of privacy view

Notification does count

The employer owns the medium and has lots of good reasons to look

E-mail communication is too insecure to expect privacy


The balancing of interests view

Lethbridge Community College (2007)

MS Hotmail e-mails retrieved through forensic analysis

First case to impose a reasonable grounds requirement for investigation


The beyond control view

Who controls non-work related records?

Beyond control view

Johnson v. Bell Canada (September 2008)

University of Ottawa (December 2008)

Back to reality

MO-2048, City of Ottawa (April 2009)


Practical options for employers

Do something!

Option #1 – Try harder to control expectations despite personal use

But how far will notice take you?

Option #2 – Give in, and implement privacy controls

Proportional audit/surveillance framework

Investigation standards (reasonable suspicion)

  • Emerging challenges
    • Email may be overtaken by other means of communication
    • So…how are you going to deal with employees who conduct business in the “cloud”
    • Businesses should set policy to ensure business is done on business systems only

E-mail retention

  • Volume and spread of email is both practical and legal challenge
  • So: retention policies = destruction policies
    • Email is often on a ‘short’ list for retention
    • At least pressure to move off server, sometimes auto-delete unless actively saved
      • Maybe some relevance test applied as well
    • Limit: reasonably likely to need it in litigation
  • This can be an e-discovery issue or a trial issue
    • Remington case (1998) – is retention policy reasonable?
    • Broccoli v Echostar (2005) – 21-day retention of emails

Privilege waiver – the internal counsel problem

  • Generally one does not produce privileged information.
    • What is privileged, in-house?
    • If you copy counsel on all internal emails, all the emails do not become privileged.
      • Separate business advice from legal advice
    • There is no deemed undertaking rule for evidence led at trial.
  • Privilege waiver – employee emails on employer systems
    • A practical problem for employer counsel among others
    • Case law on privilege is different from case law on investigations, audits and surveillance
    • What must you do to shield yourself from a “poisoned client”?
admissibility and weight
Admissibility and Weight

Proving a digital object is different

Vulnerability of information composed of presence or absence of electric current

What happens when the power goes off? When the system crashes?

Malleability of information

Easy to change undetectably

Presentation in the courtroom

Mobility multiplies the issues

admissibility and weight15
Admissibility and Weight

The elements of documentary evidence: dealing with the differences


Is this record what it purports to me?

Admissibility if foundation laid to support that conclusion

The cutting edge of e-evidence including email evidence today

Best evidence rule

What is an original electronic document?


Does the medium matter?

Exceptions wide (reliability) or focused (business records?)

It’s not always hearsay (e.g. mechanical evidence)

admissibility and weight16
Admissibility and Weight

The Uniform Electronic Evidence Act (where enacted)

“Solutions” to electronic application of these rules

Authentication: codify

Count on the witness under oath (not saying who)

Challenge is in responding to challenges (expertise, availability of foundation evidence)

Best evidence: system not document

Presumptions in aid: it matters whose system it is

Standards in aid

Hearsay: do nothing

Possible spillover effect of other rules

case law
Case law

Not much of interest on UEEA

R. v. Bellingham (AB) needed evidence of what printouts were

Leoppky v Meston (AB) – demonstrates several things:

Court looks behind computer to actual sender

A series of emails can satisfy Statute of Frauds

Still had missing link i.e. legal rules still apply

Nad Business Solutions (ON) – email as course of conduct

Singapore vs England: email headers OK or not OK as evidence capable of supporting Statute of Frauds

Lorraine v Markel (NJ) – extreme demands (all obiter)

Prove lots about system, manner of production, etc

an extreme case
An extreme case?

“The focus is not on the … creation of the record, but rather on the … preservation of the record during the time it is in the file”

“The entity’s policies and procedures for the use of the equipment, database and programs are important. How access to the … database [and to the specific program are] controlled is important. How changes in the database are logged, as well as the structure and implementation of backup systems and audit procedures for assuring the continued integrity of the database, are pertinent.”

In re Vee Vinhee, US appeal court, 2005.

cgsb standard
CGSB Standard

Canadian General Standards Board: Standard on electronic records as documentary evidence

The key rule of the Standard: think about it!

 In other words:

Make a policy about how e-records are managed

Communicate the policy

Implement the policy

Monitor compliance with the policy

Adjust the policy as required by circumstances

Have a policy manual that you can point to.

Have someone responsible (CRO) (+ witness)

new e messages challenges
New e-messages: Challenges

Webmail, Facebook/MySpace, Twitter

As you go into the cloud, it is harder to:

Authenticate (go to ISP not ASP)

Figure out and prove the ‘system’ whose reliability one would like to count on (or at least appreciate)

No standardization – every application is different (not like SMTP)

Consumer oriented – so less rigorous than business systems

Proprietary – so codes etc are not readily available

Are clouds third party providers in ordinary course of business, i.e. should they be considered reliable?

admissibility and weight21
Admissibility and Weight

Email problem #1 – You didn’t send that

Employee alleges termination on basis of pregnancy

Email pre-dates her pregnancy by two months showing bona fide intent to terminate

Proponent can testify

admissibility and weight22
Admissibility and Weight

Email problem #2 – I didn’t send that

Agreement to arbitrate executed through employer’s intranet

Execution by entering SSN or employee ID number plus password

Supervisors could reset passwords

Supervisor resets password to help employee get access

Email confirmation sent to employee

Employee claims supervisor executed agreement and denies reading confirmation email

email as evidence23

Email as Evidence