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CMU ISR 08732 - Boston University Journal of Science & Technology Law

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4 B.U. J. SCI. & TECH. L. 5 September 22, 1998Boston UniversityJournal of Science & Technology LawArticleThe Electronic Paper Trail:Evidentiary Obstacles to Discovery and Admission of ElectronicEvidenceChristine Sgarlata Chung and David J. ByerTable of ContentsI. Introduction........................................................................................................[1]II. What Is Electronic Evidence and Why Is It So Important? .....................[8]A. What is Electronic Evidence?.....................................................................[8]B. Why is Electronic Evidence Important?...................................................[9]1. The Volume of Electronic Evidence isIncreasing Exponentially............................................................[10]2. Electronic Evidence Is Difficult to Discard..............................[12]3. Electronic Evidence Often Contains Informal Materials that do not Exist in Paper Form............................[19]4. Electronic Evidence is Easy to Manipulate.............................[22]III. Legal Framework Governing Electronic Evidence...................................[26]A. Background.................................................................................................[26]B. Trends..........................................................................................................[29]C. Litigants Who Fail to Produce Electronic EvidenceRisk Sanction.............................................................................................[33]IV. Use of Electronic Evidence at Trial............................................................[35]V. Practical Advice for Lawyers Using Electronic Evidence......................[43]The Electronic Paper Trail:Evidentiary Obstacles to Discovery and Admission of ElectronicEvidence†Christine Sgarlata Chung* and David J. Byer**I. INTRODUCTION1. Former Lazard Freres & Co. (“Lazard”) partner Mark Ferber probablywishes that electronic mail had never been invented. During the 1990s, Ferber wasa financial advisor to various state and federal government agencies.1 On May 2,1996, however, a federal grand jury indicted Ferber on a variety of fraud andcorruption charges.2 Prosecutors alleged Ferber used his relationship withgovernment agencies to extract kickbacks from the Wall Street investment firm ofMerrill, Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”).3 Prosecutors alsoclaimed Ferber failed to inform his government clients about his relationship with † Copyright. 1997-8. Testa, Hurwitz & Thibeault, LLP. All rights reserved. Originallypublished in 4 B.U. J. SCI. & TECH. L. 5 (1998), Copyright 1998 Trustees of Boston University.Used with permission. Cite to this article as 4 B.U. J. SCI. & TECH. L. 5 (1998). Pin cite using theappropriate paragraph number. For example, cite the first paragraph of this Article as 4 B.U. J.SCI. & TECH. L. 5 para. 1 (1998).*B.A., magna cum laude, 1989, Amherst College. J.D., cum laude, 1993, Harvard LawSchool. Christine Sgarlata Chung was formerly an associate at the Boston law firm of Testa,Hurwitz & Thibeault, LLP.** B.A., general honors, 1972, Johns Hopkins University. M.A., 1975, Cornell University. J.D.,1984, Stanford University. David J. Byer is a partner at the Boston law firm of Testa, Hurwitz &Thibeault, LLP and chair of the Patent and Intellectual Property Practice Group. An adjunctfaculty member at Boston University’s School of Law, Mr. Byer teaches Trademark and UnfairCompetition Law and moderated the Internet Law Symposium sponsored by Boston University.See 3 B.U.J. SCI & TECH. L.1-5 (1997).1Ferber advised such agencies as the Massachusetts Water Resources Authority, the Districtof Columbia, the Michigan Department of Transportation, and the United States Postal Service.See United States v. Ferber, 966 F. Supp. 90, 92 (D. Mass. 1997).2 Specifically, the grand jury charged Ferber “with 39 counts of mail and wire fraud, . . . 13counts of accepting bribes and unlawful gratuities, . . . one count of conspiracy, . . . 25 counts ofusing interstate travel to commit bribery, commercial bribery and extortion, . . . and one count ofattempted extortion.” Id; see also 18 U.S.C. § 666 (1996) (bribes); id. §§ 1341, 1343, 1346 (1996)(mail and wire fraud); id. § 1952 (1996) (racketeering). The court later dismissed some of thesecounts. See Ferber, 966 F. Supp. at 95.3See Ferber, 966 F. Supp. at 93-95.4 B.U. J. SCI. & TECH. L. 5 The Electronic Paper TrailMerrill Lynch,4 including an undisclosed contract under which Merrill Lynch paidLazard millions so that Ferber, who had been hired by his clients to provide themwith independent financial advice, would recommend Merrill Lynch.52. During Ferber's trial, prosecutors introduced a key piece of evidence, anelectronic mail message (“e-mail”),6 written by a Merrill Lynch employee to hissupervisor shortly after the employee spoke with Ferber.7 In the e-mail, theemployee “recount[ed] a conversation with Ferber where Ferber inculpated himself.”8The e-mail suggested ways in which the supervisor might deal with Ferber'simproprieties,9 urged the supervisor to speak with Ferber directly,10 and concluded,“my mind is mush.”113. Both sides vigorously contested the admissibility of this e-mail message attrial. The government first argued that the [e]-mail message was admissible underthe business record exception to the hearsay rule.12 The government argued thatthere was sufficient foundation for admitting the e-mail as a business recordbecause the e-mail printout was “authentic and accurate,” and because it was theemployee's “routine practice” to e-mail relevant co-workers immediately afterimportant conversations with clients.13 The court, however, found that while theemployee may routinely have sent such e-mails, his employer, Merrill Lynch, had no 4See id.5See id. at 94-95.6Federal regulations define e-mail as a “document created or received on an electronic mailsystem including brief notes, more formal or substantive narrative documents, and anyattachments, such as word processing and other electronic documents, which may be transmittedwith the message.” 36 C.F.R. § 1234.2 (1996).7See Ferber, 966 F. Supp. at 98.8Id9See id.10See id. at 99 n.9.11Id. at 98.12See id. “Records of regularly conducted [business] activity” include “a[ny] memorandum,report, record, or data compilation . . . made . . . [by] a


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CMU ISR 08732 - Boston University Journal of Science & Technology Law

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