Also known as: electronically stored information · ESI · e-discovery data · digital evidence
Written by attorneys — see sources below.
Data created, stored, or transmitted in digital form. Courts and parties treat it as subject to preservation, production, and authentication requirements in litigation.
Emanuel Escobar's lawyer receives an email attachment containing client files from opposing counsel at Evergreen Bank. The lawyer recognizes that the files were sent by mistake during a discovery exchange. The lawyer must notify the sender immediately under the applicable professional conduct rule.
The prosecution offers printouts from a defendant's social media account to show communications in a criminal trial. The defendant objects that the material lacks proper authentication as electronically stored information. The court requires evidence sufficient to show the account belonged to the defendant and the messages originated from that account.
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 caseA lawyer who receives ESI relating to a client representation and knows or reasonably should know it was inadvertently sent must promptly notify the sender.
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Rule 16(b)(3)(B)(iii) permits a scheduling order to provide for disclosure, discovery, or preservation of electronically stored information.
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For electronically stored information, an original means any printout or other output readable by sight if it accurately reflects the information.
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…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…