Evidence: Authentication

Authentication of ESI

March 1, 2024

Authentication of Entire Video When Witness Observed Only Part of the Events Portrayed in the Video

Can a witness authenticate a video if the video contains images that the witness did not see?  In Md. Supreme Court to rule on Baltimore criminal case involving video authentication – Maryland Daily Record (thedailyrecord.com) (Feb. 22, 2024), Rachel Konieczny reported on a novel and important authentication issue. She wrote that: The […]
January 26, 2024

“Ninth Circuit Creates Panel to Study Artificial Intelligence”

In Ninth Circuit Creates Panel to Study Artificial Intelligence (1) (bloomberglaw.com)(Jan. 25, 2024), Suzanne Monyak reported that:  “The West Coast-based US Court of Appeals for the Ninth Circuit is creating a committee focusing on the impact of artificial intelligence on legal practice, the latest federal court to address the growing technology.”  She […]
November 20, 2023

“No Expert Needed to Introduce Data Pulled From Phone at Trial”

In No Expert Needed to Introduce Data Pulled From Phone at Trial (bloomberglaw.com) (Oct. 13, 2023), Mr. Peter Hayes reported on  United States v. Williams, 83.F4th 994 (5th Cir. Oct. 13, 2023). Mr. Hayes wrote: “A police officer who introduces evidence extracted from a cellphone at trial doesn’t need to be qualified […]
November 13, 2023

More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”

I have written several blogs about “modern attachments,” a/k/a “pointers or “hyperlinks.”[1]  So, I was interested to read Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC, 2023 WL 6465017 (Sup. Ct. N.Y. Co. Oct. 4, 2023)(unreported)(Cohen, J.), which cited several hyperlink cases that I was not aware of. One “modern attachment” […]
September 27, 2023

A Review of Sedona’s “Artificial Intelligence (AI) and the Practice of Law” by The Hon. Xavier Rodriguez

“Artificial Intelligence (AI) and the Practice of Law,” by the Hon. Xavier Rodriguez, is available at 24 Sedona Conf. J. 783 (forthcoming 2023).[1]  The article focuses on issues that “practicing attorneys are likely to encounter and steps state bars and related entities should consider.” Id. at 786.  Sedona’s website states: Judge Rodriguez […]
April 26, 2023

Authentication of ESI on Motion Compelling Arbitration Despite Factual Dispute

Authentication is a central issue when it comes to use of ESI in motions or at trial.[1] In Mason v. Domino’s Pizza, LLC, 2021 WL 4820520, at *5 (D. Md. Oct. 15, 2021)(Boardman, J.), the Court addressed authentication of ESI on a summary judgment motion.  Here, defense counsel dotted all of the […]
April 20, 2023

Authentication of a Disputed Email and Attachment

Boshea v. Compass Marketing, Inc., 2023 WL 2743333 (D. Md. Mar. 31, 2023)(Hollander, J.), involved authentication of disputed electronically stored information. “Authentication” is a necessary predicate to all uses of ESI: “[C]onsidering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense […]
March 18, 2023

“Here’s what to expect with [proposed] changes to the federal expert witness rule”

Paul Mark Sandler has written an excellent summary, Here’s what to expect with changes to the federal expert witness rule | Maryland Daily Record (thedailyrecord.com)(Mar. 13, 2023). Paul’s article explains the “two important amendments” to  Fed.R.Evid. 702 that are “expected to take effect” in December 2023. He wrote: The pending[1] amended rule […]
December 16, 2022

Managing Small Cases – Excellent Sedona Conference Resource

The Sedona Conference recently published a public comment version of its “Primer on Managing Electronic Discovery in Small Cases” (Dec. 2022). There has long been an interest in low-cost technology. For example, two decades ago, I wrote “Low Cost Litigation Technology” (Md. Bar Journal Nov./Dec. 2000).  Similarly, Craig Ball has blogged about […]
December 15, 2022

Md. State Bar Association Social Media Program

It was a pleasure to participate yesterday in an MSBA program on “Social Media as Evidence” for the Young Lawyers Section.  After an introduction by T.J. Keilty, I provided an overview of what constitutes social media.  The Hon. J. Mark Coulson discussed discovery issues, including His Honor’s decisions in Allen v. PPE Casino […]
November 19, 2022

Md. State Bar Association Program on Social Media

I will be co-presenting a program for the MSBA Young Lawyers Section, together with the Hon. J. Mark Coulson, Alicia L. Shelton, Esq., Thomas J. Keilty, III, Esq., and Ashley Aranega of X1 Social Discovery.  Please see the flier below:
October 11, 2022

Turtle and Tourist Photos Were Insufficient to Authenticate Texts in Criminal Case

The Maryland Daily Record reports that prosecutors have been barred from using texts and other messages sent by defendant’s spouse in a case alleging fraud and embezzlement.  Bryan R. Sears, McGrath fraud case: Prosecutors can’t use alleged vacation texts, judge rules (thedailyrecord.com)(Oct. 11, 2022). The paper reports that the trial judge had […]
August 12, 2022

“Modern Attachments” or “Pointers”- What is a Document? (Part IV)

  I have written a series of blogs on What is a Document? (Part III),  What is a Document? (Part II), and What is a “Document?” In those blogs, I pointed to issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, PDF Portfolios, and […]
August 10, 2022

Authentication of Disputed Signature by Description of Information Governance Policy

In Mason v. Domino’s Pizza, LLC,  2021 WL 4820520, at *1 (D. Md. Oct. 15, 2021), the Court held that defendant had properly authenticated a disputed signature on an arbitration agreement.  The signature was authenticated by testimony of a human resources officer as to defendant’s routine business practices. Mr. Mason was employed […]
July 17, 2022

Expert Testimony Not Required to Show Ability to Disable Location Tracking on Smartphone

In State v. Galicia, __ Md. __, 2022 WL 2301437, at *1 (June 27, 2022), the Court of Appeals held that expert testimony was not required to show that a user can disable location tracking on a smartphone. Two teenagers were shot by four men in June 2017.  Mr. Galicia was convicted […]
June 25, 2022

Admissibility of Photogrammetric Evidence – Trial Court is a “Gatekeeper” But Not an “Armed Guard”

Two people were murdered.  It was late at night in an area of known drug deals.  There were witnesses, but many had consumed legal or illegal substances and others were inconsistent.  There was video, but not of the shooting.  The Court called it “incomplete.”  An FBI analyst testified to a photogrammetric analysis […]
June 13, 2022

Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence

In a prior blog, I addressed the intermediate appellate decision in a case authenticating asbestos-containing chalk samples that had been obtained on eBay decades after the alleged exposure to asbestos.   Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104. That decision was affirmed “as a matter of […]
December 2, 2021

Two Recent Maryland Decisions on Authentication of Text Messages

Sykes v. State, 2021 WL 5366047 (Md. Ct. Spl. Apls. Nov. 18, 2021), and Burks v. State, 2021 WL 1747943 (Md. Ct. Spl. Apls. May 3, 2021), address authentication of text messages in criminal cases. In Sykes, the cell phone was seized from the defendant after he was seen making a call […]
November 13, 2021

“Wayback Machine” Evidence Held to be Insufficient to Support Personal Jurisdiction

In Abdul-Baatin v. LG ChemAmerica, Inc., No. 2217 (N.J. Super. Ct. App. Div. Nov. 12, 2021) (unpublished), evidence of defendant’s contacts with the forum was in part presented through a web page from the Wayback machine.  Defendant, a South Korean company, was sued for injuries allegedly sustained from an exploding lithium battery.  […]
August 28, 2021

What is a Document? (Part II)

In a prior blog, I discussed the evolving and fluid concept of “what is a document?” The following spreadsheet demonstrates one aspect of the issue on simplified facts. Assume that an accountant is being deposed about a spreadsheet that the accountant prepared many years ago, and the issue is the manner in […]
August 27, 2021

Waiver of Work Product Protection in Deposition Preparation Sessions

In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation. Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent.  […]
August 17, 2021

What is a “Document?”

Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1]  Usually, it was clear where a letter, memo, or contract began and ended.  But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeutics […]
July 26, 2021

Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104

In Pifer v. Irwin Industrial Tool Co., 2021 WL 3076855 (Md. Ct. Spl. Apls. Jul. 21, 2021) (unreported), the appellate Court addressed a novel authenticity issue.  Specifically, the Court addressed the authentication of chalk samples gathered by plaintiff on eBay several decades after the date of manufacture, many of which contained a […]
March 16, 2021

Surveillance Video of Robbery Was Properly Authenticated by Eyewitness

In Karn v. State, 2021 WL 515388 (Md. Ct. Spl. Apls. Feb. 11, 2021) (unreported), the Court affirmed a holding that the State had laid a proper foundation for admitting surveillance video. The Court applied the Court of Appeals’ decisions in State v. Sample, 468 Md. 560, 588 (2020), and Sublet v. […]
May 12, 2020

Publication of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020)

I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds.,  ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
May 12, 2020

“Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media

In State v Sample, __ Md. __, 2020 WL 2316709 at *3 (May 11, 2020), the Court of Appeals of Maryland concluded that “that the standard of proof for authenticating social media evidence is the preponderance of evidence standard, i.e., there must be sufficient circumstantial evidence for a reasonable juror to find […]
July 30, 2011

American Bar Assoc., Publishes Berman, et al., Managing E-Discovery and ESI

The American Bar Association has  published M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial.  The 761-page work features chapters by The Hon. Paul W. Grimm (D.Md.), The Hon. John M. Facciola (D.D.C.),  The Hon. James C. Francis IV (S.D.N.Y.), and The Hon. Joseph F. […]
May 2, 2011

Maryland Murder Conviction Reversed Over MySpace Page

May 2020 UPDATE:  Please see “Unfriending” Evidence – Maryland Follows “Reasonable Juror Standard in Authentication of Social Media. In Griffin v. State, No. 74 (Sept. Term, Apr. 28, 2011), Maryland’s highest court reversed a murder conviction because printed MySpace pages were not properly authenticated. Mr. Griffin was charged with shooting another person.  […]