Xref: utzoo news.admin:7812 misc.legal:12426
Path: utzoo!utgpu!jarvis.csri.toronto.edu!mailrus!uunet!ncis.tis.llnl.gov!mcb
From: mcb@ncis.tis.llnl.gov (Michael C. Berch)
Newsgroups: news.admin,misc.legal
Subject: Evidence from computers
Summary: (was Re: warning: scumbags using usenet for pyramid schemes)
Message-ID: <628@ncis.tis.llnl.gov>
Date: 25 Nov 89 08:09:04 GMT
References: <3990@sbcs.sunysb.edu>
Distribution: usa
Organization: Postmodern Consulting, Pleasanton CA USA
Lines: 43

In <3990@sbcs.sunysb.edu> brnstnd@stealth.acf.nyu.edu (Dan Bernstein) writes:
> Chain letters through the mail are most certainly illegal, but I've
> never heard of a decision on electronic chain letters. I don't think any
> court in the country accepts evidence from a computer; computer mail is
> taken as speech, so that the evidence in court is about as reliable as
> hearsay.

Huh?  I don't think there is any court in the country that *doesn't*
accept evidence from computers.  Considering that the vast majority of
accounting data in the U.S. is kept on computers, inability to accept
computer data as evidence would, shall we say, throw quite a cramp
into business litigation.  Computer data -- reduced to printouts,
graphics, or other tangible form -- is as admissible as any other kind
of documentary evidence, so long as it is properly identified and
authenticated via an offer of proof, *just like any other documentary
exhibit*.   Most computer data would be considered a business record
and admissible under the business records exception to the hearsay
rule.  It is also properly the subject of a subpena duces tecum.

I also do not know of any support for the assertion that "computer
mail is taken as speech."  If reduced to a printout, computer mail is
as admissible as any other sort of writing, and requires the same
authentication as any other writing (which admittedly may be more
complex for e-mail than for, say, a typed business letter, but
certainly not a big problem).  I do not know of any cases
involving UUCP or Internet mail, but other e-mail (e.g., PROFS, PC
mail programs, Telex) has been used as proof in litigation.

Computer data, including e-mail, raises some special issues regarding
authentication (by which I mean authentication of the reduction to
printing, not of the author of the writing or its contents), possibly
requiring offer-of-proof testimony by, say, a system programmer or
administrator regarding normal data storage and retrieval procedures,
but these issues are pretty much settled by rule of court in most
jurisdictions.

Followups to misc.legal.

--
Michael C. Berch  
Member of the California Bar
mcb@tis.llnl.gov (until 11/27/89)
mcb@presto.ig.com (thereafter)