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Trustworthy Information Systems Handbook: Appendix E, III.

Electronic Records as Evidence

Computer-generated records cannot be admitted into evidence unless the proper foundation has been laid. For example, in Illinois v. Bovio (455 NE2d 829, 1983), the court ordered a new trial because the state prosecutor did not lay the proper foundation for admitting computer-generated bank records into evidence, which supported a necessary element of the charge of theft by deception. In Illinois, it must be shown that the computer equipment is standard, that the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and that the sources of information and the method and time of preparation are such as to indicate trustworthiness and justify admission. There was no testimony to show how transaction information was entered into, and processed through, the computer system which would verify the accuracy of the output. Systems which perform calculations must be scrutinized more thoroughly than systems which merely retrieve information. The state needed to show that the computer program was standard, unmodified, and operated according to its instructions.

Other states have more liberal rules regarding the admissibility of electronic records into evidence. For example, the California Uniform Electronic Evidence Act (Act) defines "electronic record" and "electronic records system" and provides a series of rules and presumptions relating to the admissibility of electronic records. The key to the Act is the presumption of integrity given to electronic records when it is established that (a) at all material times the computer system was operating properly or the fact that it was not operating properly did not affect the integrity of the electronic records; and that (b) there are no reasonable grounds to doubt the integrity of the electronic records system.

One way in which to admit electronic records into evidence in federal court is by defining them as "business records" under the Federal Rules of Civil Procedure, therefore excepting them from hearsay. The business records exception relies on trustworthiness and necessity. It consists of five elements: (1) the records must be kept in the ordinary course of business; (2) the particular record at issue must be one that is regularly kept; (3) the record must be made by, or from, information transmitted by a person with knowledge of the source; (4) the record must be made contemporaneously; and (5) the record must be accompanied by foundation testimony by a custodian of the record. All such elements must be met to be admissible. Critical to admissibility of computer records is the foundation testimony regarding the above requirements, including the reason that the message was prepared and sent. See U.S. v. Catabran, 836 F.2d 453 (9th Cir 1988); Rosenberg v. Collins. See also Quality Auto Service v. Fiesta Lincoln-Mercury Dodge Inc., No. 04-96-00967-CV 1997 WL 563176 (TX App Sept 10, 1997); U.S. v. Kim, 595 F2d 755 (DC Cir 1979).

Electronic records and computer printouts of accounting and other bookkeeping records that are entered into the computer on a monthly basis are generally admissible in court as business records. See Midfirst Bank SSB v. CW Haynes & Co., 893 F. Supp 1304 (DSC 1994); U.S. v. Goodchild 25 F3d 55 (1st Cir 1994). Electronic records reveal more information than their paper counterparts, since they more easily show inconsistencies among documents, contain multiple drafts of documents, contain the history of a document (including who revised the document, in what manner, and when), may contain unprinted annotations, and show the names of documents and other filenames. Electronic data thought to be lost or erased is usually accessible. In addition, there are usually multiple drafts of documents and many different places within a network or computer they may be stored. Data is routinely backed up over and over, and exists in many different places and formats. Users are adverse to destroying data, people use a lower standard of care when writing e-mail, and computers routinely save many copies of documents in various ways. This makes it very expensive, time consuming, and burdensome to find and produce electronic records. In addition, if you do not produce the records, your adversary may gain access to your computer system.

The admissibility of e-mail is not so clear, however. Although e-mail is obtainable through discovery, there is no guarantee that it will be admissible in federal court. Courts are concerned about whether e-mail satisfies the "regular practice" of the exception, and the casual nature of the messages raises trustworthiness questions. See Aviles v. McKenzie; Strauss v. Microsoft Corp.; Allen v. State; U.S. v. Kim 595 F2d 755 (DC Cir 1979); Plymouth Police Brotherhood v. Labor Relations Commission; Monotype Corporation PLC v. International Typeface Corporation, 43 F.3d 443 (1994).

As of 1996, no federal court had applied the business records exception to e-mail messages. Since then, some courts have held it is admissible, while others have held that it does not meet the requirements of the business records exception in the Federal Rules of Evidence (Rule 803(6)). For example, in Monotype Corporation PLC v. International Typeface Corporation, 43 F.3d 443 (1994), the court excluded an e-mail transmission as evidence to support the defendant's defense. The defendant moved to admit an e-mail transmission under the business records exception to support its defense that it did not copy Monotype's typefaces. The court held that e-mail is far less of a systematic business activity than a monthly inventory printout or other computer–generated printout. E-mail is an on-going electronic message and retrieval system, whereas an electronic inventory recording system is a regular, systematic function of a bookkeeper prepared in the course of business. See also Michaels v. Michaels; Monotype Corporation PLC v. International Typeface Corporation, 43 F.3d 443 (1994); U.S. v. Catabran, 836 F.2d 453 (9th Cir 1988); U.S. v. Kim 595 F2d 755 (DC Cir 1979).

A survey of recent federal cases, however, shows that e-mail has found its way into the courtroom. For example, in Knox v. State of Indiana, 93 F3d 1327 (7th Cir 1996) e-mail messages in which a supervisor repeatedly asked an employee for sex were admissible in a harassment case. See also Harley v. McCoach, 928 F. Supp. 533 (ED PA 1996); Wesley College v. Pitts, 874 F.Supp 375 (D DE 1997).

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Appendix E

TIS Handbook last updated July 2002, Version 4.