Also known as: electronically stored data · electronic data · ESI · electronically stored information
Written by attorneys — see sources below.
Data maintained or transmitted in digital format on computers or other electronic devices. Such data is subject to the same evidentiary and discovery rules that govern writings and recordings.
A lawyer at Echo Systems receives an email attachment containing spreadsheets and internal memos from opposing counsel during settlement talks. The lawyer recognizes that the material was not intended for her client and immediately contacts the sender to report the receipt.
Prosecutors offer printouts from a defendant's MySpace page to show threats made against the victim. The trial court requires the state to present evidence that the account belonged to the defendant and that the posts were not altered before admitting the electronically stored data.
On April 24, 2005, Darvell Guest was shot and killed at Ferrari's Bar in Perryville, Cecil County. Antoine Levar Griffin was charged with numerous counts in connection with the shooting. The case proceeded to trial in the Circuit Court for Cecil County. At trial the State sought to introduce several pages printed from a MySpace profile in the name of Sistasouljah. The profile described a twenty-three-year-old female from Port Deposit whose birthday was listed as October 2, 1983, and it included a photograph of an embracing couple. The pages also contained the statement FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!! Jessica Barber, Griffin's live-in fiance, was called as a witness by the State but was not questioned about the profile. Authentication was attempted through the testimony of Sergeant John Cook, the lead investigator. Cook stated that he recognized the photograph as one of Jessica Barber and the defendant, matched the birth date, and noted references to Boozy. During voir dire outside the jury's presence, Cook admitted he could not say that Barber sent the posting and confirmed the page was accessible to the public. The print date on the form was December 5, 2006. The trial court allowed a redacted version of the printout. The parties entered a stipulation describing what Sergeant Cook would say if called, including that he downloaded the posting from MySpace and that the jury should consider only the snitches get stitches portion. The exhibit was offered to corroborate a witness's account that Barber had threatened him before trial. Griffin was convicted on the charges. The Court of Special Appeals affirmed the convictions. The Court of Appeals of Maryland granted Griffin's petition for a writ of certiorari to consider whether the MySpace pages had been properly authenticated.
View caseThe lawyer must promptly notify the sender if the lawyer knows or reasonably should know that the information was sent by mistake.
Courts apply traditional authentication standards and may require evidence linking the data to a particular person or account, such as ownership of a social media profile or distinctive content.
Supporting sources
A party need not produce the same electronically stored information in more than one form.
Supporting sources
…of Judge Battaglia In this case, we are tasked with determining the appropriate way to authenticate, for evidential purposes, electronically stored information printed from a social networking website, in particular, MySpace. Antoine Levar Griffin, Petitioner, seeks reversal of his convictions in the Circuit Court for Cecil County, contending…