This is an hour presentation on the law of e-mail given as part of an e-discovery conference.

1. Email as Evidence JOHN D. GREGORY DANIEL J. MICHALUK February 9, 2010

2. Email as Evidence Definitions Relevance Access Production Admissibility and Weight Case studies 2

3. Definitions Email and e-messages 1970s Classic email (SMTP) 1980s Bulletin boards, MUD, voice mail 1990s Web mail, ICQ, computer-generated or –received faxes 2000s IM, Social networks, Twitter, virtual worlds Remix of all of the above – e.g. notice of FB comments & replies VOIP (e.g. Skype = voice + image + IM) Multiplication of carriers : e-messages in the cloud 3

5. Everybody uses email and (more or less) understands it

6. Can be particularly potent evidence – Gates, Black, Poindexter

7. Information in transit: special issues

8. Multiplicity of repositories

9. Jurisdiction

10. Communications/speech issues with content

11. Impermanence

12. Paradigm case

13. Raises many issues in strong ways that appear elsewhere

14. Evolves quickly – the answers keep changing4

15. Access Stored communications on the corporate e-mail system Lotus Domino, Microsoft Exchange Server, Groupwise Blackberry Enterprise Server Workstations Handheld devices

16. Access Hard to access stored communications Un-logged PIN-to-PIN messages (including Blackberry Messenger communications) Blackberry Internet Service messages SMS communications Very hard to access stored communications Communications on employee home computers Communications on “personal” cloud services

17. Access The law – sources of rights Employee privacy legislation (federal plus three provinces) Criminal Code wiretap provision “Common law of the unionized workplace” Constructive dismissal claims by non-union employees

18. Access Cases to watch University of British Columbia – BC Supreme Court R. v. Cole – Ontario Court of Appeal Quon – USSC

19. Access Practical options for employers Do something now! 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)

20. Production The problem of volume - retention Retention policies are key Email is often on a ‘short’ list for retention At least pressure to move off server, sometimes auto-delete unless actively saved 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 10

21. Production 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 How to sort it out? Air Canada v Westjet, There is no deemed undertaking rule for evidence led at trial. 11

22. Production 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 Lots of U.S. developments, few Canadian cases What must you do to shield yourself from a “poisoned client”? 12

23. 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 Printout vs native format (capacity to present etc) Mobility multiplies the issues 13

25. Is this record what it purports to me?

26. Admissibility if foundation laid to support that conclusion

27. The cutting edge of e-evidence including email evidence today

28. Best evidence rule

29. What is an original electronic document?

30. Hearsay

31. Does the medium matter?

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

33. It’s not always hearsay (e.g. mechanical evidence)14

34. 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 Admissibility, nothing re weight 15

35. 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 Nat. 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 Admitted some shortcuts might exist e.g. notice of intent to use 16

37. “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.”

38. In re VeeVinhee, US appeal court, 2005.17

40. In other words:

41. Make a policy about how e-records are managed

42. Communicate the policy

43. Implement the policy

44. Monitor compliance with the policy

45. Adjust the policy as required by circumstances

46. Have a policy manual that you can point to.

47. Have someone responsible (CRO) (+ witness)18

48. 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 Surrounded by TP apps – Tweetdeck, thousands of FB suppliers – who, where, what are they? Are clouds third party providers in ordinary course of business, i.e. should they be considered reliable? 19

49. 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 20

51. Agreement to arbitrate executed through employer’s intranet

52. Execution by entering SSN or employee ID number plus password

53. Supervisors could reset passwords

54. Supervisor resets password to help employee get access

55. Email confirmation sent to employee

56. Employee claims supervisor executed agreement and denies reading confirmation email21

57. Email as Evidence JOHN D. GREGORY DANIEL J. MICHALUK February 9, 2010