ESI in Dispositive Motions
In Smith v. Charles,9 the motion court held that plaintiffs' verified complaint annexing emails served as proper authentication for them, and that circumstantial evidence could:
verify the emails just as such evidence authenticates a voice heard over the telephone when the message reveals the speaker had knowledge of the facts that only the speaker would likely know. [citation omitted] More importantly, though, courts have applied the same rule when judging whether instant messages are properly authenticated (People v. Pierre, 41 AD3d 289, 291-292 [2007], lv denied 9 NY3d 880 [2007], habeas corpus denied sub nom Pierre v. Ercole, 2012 WL 3029903, *9-10, 2012 U.S. Dist LEXIS 103874, *23-25 [S.D N.Y.2012] ["instant message was properly authenticated, through circumstantial evidence, as emanating from defendant"]). Here, the emails contain sufficient circumstantial evidence to authenticate defendant Charles as recipient and sender…. Enough circumstantial evidence therefore exists in the record, when taking these facts into account, to authenticate relevant emails as written and received by defendant Charles. Consequently, email authentication and admissibility exists to support the motion even if the plaintiffs' verified complaint proved insufficient.
In Bank of America v. Friedman Furs & Fashion,10 the court denied plaintiff's motion for summary judgment under a line of credit, where, among other grounds: (i) "there was no indication that the [loan history report upon which plaintiff was relying] was made in the regular course of business," since the report was not generated until after the action was commenced, and thus is "not a record of the transactions…as they occurred, but is instead a summary prepared for the purpose of this litigation"; and (ii) the loan history report was "not self explanatory, since the entries are confusing" and the accompanying affidavit was not from an individual with "'personal knowledge of the care and maintenance' of plaintiff's electronic business records," and therefore plaintiff was unable to satisfy its burden, under State Technology Law 306 and CPLR 4539(b), of laying a proper foundation for submitting the subject "reproductions."
In Hakim v. Hakim,11 the First Department held that plaintiff's otherwise barred claims were "revived," by defendant's in-house counsel's emails referring to defendant's intent to provide plaintiff with an accounting of what he owed to his uncle. The court held that "[v]iewing the emails in the light most favorable to [plaintiff] and drawing all reasonable inferences therefrom, they constitute an acknowledged obligation to furnish the accounting required for Isaac's purchase of his membership in the LLC."
iPhone ESI
In AllianceBernstein v. Atha,12 the First Department held that the trial court's order directing defendant to turn over his iPhone was beyond the scope of plaintiff's request, which was for the "iPhone's call logs from the date he left plaintiff's employ."13 The court found the order was "too broad for the needs of this case" holding:
[O]rdering production of defendant's iPhone, which has built-in applications and Internet access, is tantamount to ordering the production of his computer. The iPhone would disclose irrelevant information that might include privileged communications or confidential information. Accordingly, the iPhone and a record of the device's contents shall be delivered to the court for an in camera review to determine what if any information contained on the iPhone is responsive to plaintiff's discovery request. In camera review will ensure that only relevant, non-privileged information will be disclosed.
Mark A. Berman, a partner at commercial litigation firm Ganfer & Shore, is secretary of the e-discovery committee of the Commercial and Federal Litigation Section of the New York State Bar Association. Anne Taback, an associate, assisted in the preparation of this article.
Endnotes:
1. See New York City Bar on Professional Ethics, Formal Opinion 2010-2.
2. The authors recently addressed social media discovery in "Getting and Using That ESI," NYLJ, Vol. 248 No. 84 and "Metadata Meets Facebook E-Discovery," NYLJ, Vol. 247 No. 83. In addition, the use of ESI in dispositive motions was addressed by the authors in "Overbroad Demand and Improper Denials," NYLJ, Vol. 245. No. 39, and "N.Y. Courts Embrace Use of E-Communication Discovery," NYLJ, Vol. 243 No. 39.
3. 100 A.D.3d 728, 953 N.Y.S.2d 654, 656-57 (2d Dept. 2012).
4. Index No. 15557/2007, at 3-4 (Sup. Ct. Queens Co. Sept. 24, 2012).
5. Index No. 111320/2010 at 2 (Sup. Ct. N.Y. Co. Aug. 27, 2012).
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