Herzfeld & Rubin, P.C.- Publications

Products Liability *The Growing Challenge of Internet Hearsay* By Michael Hoenig - New York Law Journal - August 13, 2007	Print article

As computers have become central to modern life, the explosive growth of electronic information has brought with it many advantages but also some heavy baggage. Victims of identity theft, child pornography, dangerous chat rooms and scams of many kinds no doubt see the blessings tainted by accursed evils. Clearly, the digital age, with its breathtaking generation and accumulation of electronic files, data and information by public and private enterprises, has revolutionized how business is done, indeed, how we live and conduct our affairs.

For courts, litigants and their lawyers, the challenges can be particularly acute. While businesses and individuals surge forward with vigor to ride the unrestricted speed lanes of the information superhighway, courts and lawyers must slow their traffic to relatively snail-paced speeds the litigation system can tolerate. The search for the truth in the world of the courts depends not upon the speed of the chase or the volume of data issued but, rather, upon the quality and verity of the facts developed.

While the electronic superhighway is largely unruled and unpoliced, the litigation system's roadways have many red and yellow lights, stop signs and police all along the way.

When the dogged, sometimes plodding litigation system and the breezy information superhighway intersect, the two regimes can exhibit marked tensions. This clash essentially pits a system of rules against one with few, if any, rules; a processing of information cabined by principles of relevance, authenticity, foundation and reliability versus a world of unfettered, sometimes unverified, information; an institution governed by orderly time frames geared towards sufficient opportunity for investigation, review, comprehension and advocacy versus one of blinding informational speed in which time frames are largely controlled by persons producing and using the superhighway's information banks.

Law's Accommodation

The legal system thus struggles to keep pace. Seemingly, accommodations must be made to cope with an inexorable tide that can overwhelm it. The law somehow must come to terms with the practical realities on the ground. For example, the qualitative and quantitative differences between paper documents and electronically stored information, commonly referred to as ESI, forced significant changes in federal pretrial discovery rules addressed specifically to ESI, a leap now also being emulated by state court systems. As summarized in the new Sedona Principles,^[1] such changes were needed because of compelling factors. Thus, for example, the sheer volume and duplicability of ESI dwarfs the universe of paper documents. A single large entity can generate and receive millions of e-mails and electronic files each day. A single computer tape or disk drive the size of a small book can hold the equivalent of millions of printed pages. Thousands of such tapes may be archived. And the original documents are replicated repeatedly as users send the same electronic message to others creating more records.

ESI is also "persistent," that is, it is more difficult to dispose of. While shredding a paper document essentially makes it irretrievable, "deleting" an electronic file is not equivalent to "destroying" it. The data's entry in the disk directory is merely changed to a "not used" status. Thus, data accumulation is compounded. Further, computer information, unlike paper, often has content designed to change over time without human intervention. For example, Web pages may constantly be updated with data fed from other applications or e-mail systems may reorganize and purge data automatically. Thus, unlike paper documents, much ESI is not fixed in a final form. Further, because ESI is more easily and more thoroughly changeable than paper documents, modified ESI may be difficult to detect without computer forensic techniques.

Unlike paper, ESI may contain information called "metadata" that is not readily apparent on the screen view of the file. It includes information about the document or file that is recorded by the computer to assist in storing and retrieving the document or file. Such metadata information as file designation, create and edit dates, authorship, comments, and edit hearsay may be created. E-mail, for example, has its own metadata elements such as the date the mail was sent, received, replied to or forwarded, blind carbon copy (bcc) information, and sender book information.

The environment-dependence and obsolescence of ESI also is potentially significant. Unlike paper, electronic data may be incomprehensible when removed from the structure in which it was created. Raw data, without the underlying structure, will appear as merely a long list of undefined numbers. To make sense of the data one needs the context. Also data may migrate to different platforms but because computer technology advances so quickly, restoration of data housed in obsolete systems, sometimes called "legacy data," can be difficult or expensive.

"Dispersion" and "searchability" are other factors differentiating ESI from paper documents. The latter will be consolidated in a handful of boxes or file cabinets. But the user's ESI may reside in numerous locations such as desktop hard drives, laptops, network servers, floppy disks, CD-ROMS, DVDs and backup tapes. Such dispersion may complicate retrieval efforts, although effective software may ease such problems. In the face of these practical realities, it became clear that the smooth operation of pretrial discovery required refinements to deal with the new electronic universe.

Internet Research

But must accommodations far beyond pretrial discovery also be made? Do the rules of evidence need to be modified, for example? Or should the world of electronic information hew to venerable, established norms, protocols and customs of litigation conduct? We touched upon some of these challenges in our May 30 column, "Admissibility of Electronic Information."^[2] Complications identified include the wide variety of electronically stored information, significant authentication issues, foundational requirements, reliability issues, the standards for determining admissibility, and hearsay hurdles. Then there are real problems of potential manipulation, alteration or fabrication.^[3] The electronic data world forces lawyers to be far more vigilant, much more attentive to detail, to assiduously check references, citations and facts. Indeed, our July 9 column, Privileged Communications and E-Mail Chains, ^[4] described how even the hallowed attorney-client privilege can unravel when routine e-mail practices unfold, signifying to lawyers that adjustments may have to be made if confidential communications are to be protected.

Costless Electronic Info

Another area of tension where the litigation system is being pulled - some would say dragged - is the lure of easily available, speedily retrievable, relatively costless electronic information. The proliferation of Internet information of all kinds, even scientific and technical, some of it appearing and sounding quite impressive, has generated increased reliance by Internet users upon such data sources. Internet research has become a ubiquitous investigative tool. The fruits of such research often are presumed by users to be accurate and genuine. Indeed, lawyers, experts and even judges increasingly consult the Internet and consider some of this information to be automatically "truthful" fact, "authoritative" or accurate data and "reliable" statements, opinions and conclusions. It is almost as if millions of electronically stored "learned treatises" have instantly been created and many thousands of experts have spoken out definitively. Will this trove of attractive, seemingly endless information justify easing evidentiary restrictions so that it is admitted more readily? Or, will the Internet have to bow to the law's requirements?

Two broad categories of separate but related questions (or problems) have emerged from the headlong rush to proliferative Internet research. One is the practice, or at least the temptation, of many trial and appellate judges to engage in independent scientific research beyond the confines of the record in the dispute before them or beyond the references cited to them by the litigants' attorneys. Often, that independent scientific research leads judges to consult the Internet in their quest to master the technical issues they must adjudicate. The question may be asked, should judges independently conduct their own ex parte scientific research?^[5]

Fortunately, we have some important guidance on this question by George D. Marlow, Associate Justice of the Appellate Division, First Department, and co-chair of the New York State Advisory Committee on Judicial Ethics. Justice Marlow's classic 1998 article in the St. John's Law Review is a "must" starting point.^[6] His more recent article entitled, "Independent Scientific Research," appeared in a "Perspective" feature in the Law Journal on Oct. 4, 2006.^[7] Actually, that was a recast of Justice Marlow's essay in a symposium on the subject in the Fall 2006 issue of the publication, Judicature.^[8] Prompting the renewed attention was a new law review article by Brooklyn Law School Professor Edward K. Cheng in the Duke Law Journal. Entitled, "Independent Research in the 'Daubert' Age," Professor Cheng provocatively argued that Daubert's mandate that judges be "gatekeepers" of scientific and technical evidence to assure its reliability now makes it more desirable for judges to perform independent judicial research. An abridged version of Professor Cheng's article appeared in the Judicature symposium along with Justice Marlow's article and those of others.^[9]

The articles make it clear that even judges are divided on the question. Justice Marlow reminds us anew that the issue of judges doing ex parte research is quite complex and must be "carefully weighed and considered." Such judicial research implicates the essence of the lawyer's role in an adversary system. Minimally, litigants' counsel ought to be given notice of the material a judge has sua sponte decided to research and read. This at least gives the lawyers "the opportunity to fulfill this aspect of their advocacy role."

A second problem category emerging from the digital age is the growing use by lawyers of Internet data sources, perhaps not yet peer reviewed or declared as authoritative or generally accepted by the pertinent scientific community, and then projecting them in litigation as purported "fact" or "learned" or "reliable" sources of information to be accepted by courts as evidence via testimony and opinions of professional witnesses or "hired-gun" experts. The question may be asked, to what extent is such scientific or technical Internet "hearsay" to be allowed by judges? Must it hew to established reliability standards already in place under Daubert, Frye and applicable rules of evidence? Or must the rules be bent to accommodate the avalanche of available information?

'Wikipedia' Cases

On June 18, the Trademark Trial and Appeal Board of the U.S. Patent and Trademark office issued an opinion accepting evidence from Wikipedia, a popular, collaborative, information Web site.^[10] In doing so, the court discussed the issue whether internet sources in general, and Wikipedia in particular, is admissible evidence. The court acknowledged there are "inherent problems regarding the reliability of Wikipedia entries because Wikipedia is a collaborative Web site that permits anyone to edit the entries." In fact, the "About Wikipedia" section of wikipedia.org warns users that articles can be edited by anyone with access to the Internet. It also explains that its editors do not need any specialized qualifications to contribute. "As a result, entries, especially newer entries and recent edits, may contain significant misinformation, 'unencyclopedic' content, unexpected oversights and omissions, vandalism or unchecked information that requires removal." At any given time, an article may be in the middle of an edit or controversial rewrite. Indeed, the Wikipedia editors provide the following warning: "Therefore, a common conclusion is that it [Wikipedia] is a valuable resource and provides a good reference point on its subjects, but like any online source, unfamiliar information should be checked before relying on it."

On the other hand, said the court, "Internet evidence is generally admissible and may be considered for purposes of evaluating a trademark."^[11] The court also cited Southern District of New York U.S. Magistrate Judge James C. Francis' opinion in Alfa Corp. v. OAO Alfa Bank, a trademark infringement case.^[12] Magistrate Judge Francis also discusses the reliability of Internet sources. He observed that "[c]ountless contemporary judicial opinions cite Internet sources, and many specifically cite Wikipedia."^[13] This frequent citation suggests that many courts do not consider Wikipedia to be inherently unreliable. Indeed, its error rate was said to be "not significantly greater" than the Encyclopedia Britannica. Judge Francis goes on to discuss other case decisions pro and con.^[14] He concludes that the expert's opinion referencing Wikipedia information in his case was not so inherently unreliable as to render it inadmissible.

'Tiger by the Tail'

Clearly, the law has a proverbial tiger by the tail. The tiger is attractive, yet huge and potentially dangerous. Our past articles on "gatekeeping" of experts and unreliable literature and excluding experts' use of mere "conduit hearsay" reflect a host of legal and factual considerations in how courts and lawyers should handle literature used or relied upon by experts.^[15] Those considerations, reflecting established norms and protocols for handling issues about "reliability" of professional literature, now need to be examined more closely. Already the use of Internet hearsay may have become an irresistible force. Will it overwhelm or damage the stability of the rules of evidence or will internet hearsay be brought to heel? Likely, we are in for a period of increased tensions.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnote:
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[1.] The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, at pp. 2-5 (The Sedona Conference, 2d ed., June 2007).

[2.] M. Hoenig, "Admissibility of Electronic Information," New York Law Journal, May 30, 2007, p.3.

[3.] See e.g., S.D. Nelson & J.W. Simek "Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence," 79 NYSBA Journal, No. 5, pp. 10-14 (June 2007).

[4.] M. Hoenig, "Privileged Communications and E-Mail Chains," NYLJ, July 9, 2003, p. 3.

[5.] See generally, D.H. Tennant & L.M. Seal, "Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case," N.Y. State Bar News, pp. 10, 24-25 (May/June 2005); K. Strutin, "Judges and the Internet," NYLJ, Jan. 10, 2006 (on line).

[6.] Hon. G.D. Marlow, "From Black Robes to White Lab Coats: The Ethical Implications of a Judge's Sua Sponte, Ex Parte Acquisition of Social and Other Scientific Evidence During the Decision-Making Process," 72 St. John's L. Rev. 29 (1998).

[7.] Hon. G.D. Marlow, "Independent Scientific Research," NYLJ, Oct. 4, 2006, p. 2.

[8.] Hon. G.D. Marlow, "Independent Research on Scientific Issues by Judges Must Be Carefully Weighed and Considered," 90 Judicature 66 (September/October 2006).

[9.] E.K. Cheng, "Should Judges Do Independent Research on Scientific Issues?," 90 Judicature 58 (September/October 2006); See also M.E. Keasler & C. Cramer, "Appellate Courts Must Conduct Independent Research of 'Daubert' Issues to Discover 'Junk Science,'" Id. at 62; S. Keller & D. Cimics, "Appellate Courts Should Resist the Temptation to Conduct Their Own Independent Research on Scientific Issues," Id. at 64; D.A. Kelsey, "Virginia's Answer to 'Daubert's' Question Behind the Question," Id. at 68.

[10.] In re IP Carrier Consulting Group, TTAB, Serial No. 78542726, 2007 WL 1751192 (June 18, 2007).

[11.] In re IP Carrier Consulting Group, Id. at p. 4 (citing In re Bayer Aktiengesellschaft, 3rd (Fed. Cir. 2007)).

[12.] 475 FSupp2d 357 (SDNY 2007), 2007 U.S. Dist. LEXIS 12771.

[13.] Id. LEXIS at *10.

[14.] See Campbell v. Secretary of Health & Human Services, 69 Fed. Cl. 775 (Fed. Cl. 2006); English Mountain Spring Water Co. v. Chumley, 196 S.W. 3d 144 (Tenn. Ct. App. 2005); Loussier v. Universal Music Group, Inc., 2005 U.S. Dist. LEXIS 3745 (SDNY July 14, 2005).

[15]. Hoenig, "'Gatekeeping' of Experts and Unreliable Literature," NYLJ Sept. 12, 2005, p. 3; Hoenig, "Experts' Reliance on 'Unreliable' Hearsay," NYLJ, Nov. 12, 2002, p. 3; See also our columns in the NYLJ on Experts and Professionally Reliable Hearsay dated, respectively, April 11, June 18, July 8 and Aug. 12, 2002, each article commencing at p. 3; "'Conduit Hearsay': A Minefield for Lawyers," NYLJ, March 13, 2006, p. 3; "Improper 'Conduit Hearsay'," NYLJ, Sept. 11, 2006, p. 3.