In Part I, I began to discuss how the Pennsylvania Superior Court decision in Commonwealth v. Koch, in ruling that the state had failed to authenticate text messages coming from and going to the defendant's cell phone, even though the defendant had admitted that the phone was hers. We reviewed the case law on which the court had relied and noted how the court conflated cases involving emails and instant messages, which can be sent to or received at any computer one can use to sign onto an account (and thus the fact that the emails or instant messages were found to reside on a certain device is of less significance), with text messages, which must be sent from or to the user's cell phone. We also conjectured that the court reached its result because it found the defendant, who lived with her boyfriend and brother -- more likely the possessors and sellers of the marijuana found in the residence -- sympathetic.
In part II, we will discuss how the court specifically addressed the technical differences between text messages and emails and how it diminished the significance of that difference.
THE FUNDAMENTAL THINGS STILL APPLY?
Having conflated text messages with email and instant messages through the opinion, the Koch court eventually did note that text messages "are somewhat different [than emails] in that they are intrinsic to the cell phones in which they are stored. While emails and instant messages can be sent and received from any computer or smartphone, text messages are sent from the cellular phone bearing the telephone number identified in the text message and received on a phone associated with the number to which they are transmitted. The identifying information is contained in the text message on the cellular telephone."
That technical difference, however, did not, in the court's eyes, allow the state to authenticate the text messages as the defendant's simply by virtue of the fact that they were sent from or received by her cell phone, because, "as with email accounts, cellular telephones are not always exclusively used by the person to whom the phone number is assigned." Indeed, the court concluded, that "was the case herein." The court drew that conclusion because the investigating detective "acknowledged that he could not confirm" that defendant "was the author of the text messages"; and, the detective further testified that "it was apparent that she did not write some of the messages" that were on her phone. (A detective admitted that some of the messages found on the cell phone referred to Koch in the third person and "were clearly not written by her.")
The court's reasoning here, however, is dubious at best. First, to characterize the detective's testimony as it did is simply playing with words. Testimony that authenticates evidence rarely can be confirmed by the investigating officer. To go back to an earlier example -- or the present case, for that matter -- an investigating officer could testify that he or she entered the premises; found evidence of dominion and control of the premises typical in virtually all possession cases, e.g., utility bills, clothes fitting the defendant in the master bedroom; and found the illegal drugs therein, and still not be able to "confirm" that the drugs were the defendant's. The evidence would nevertheless be sufficient -- as it was in the instant matter -- to find the defendant guilty beyond a reasonable doubt, a far higher burden to meet than to authenticate evidence. If allowed to draw conclusions from the evidence -- which, typically, detectives cannot do, since that is the province of the jury -- the investigating detective here certainly could have "confirmed" that the text messages were Koch's. But because the detective was not an eyewitness to the defendant's cell phone usage, he could no more "confirm" that the text messages were hers than he could have the drugs. Thus, the detective's "failure" to "confirm" says nothing about the strength of the authentication evidence, only about the rules governing when witnesses can draw conclusions.
Similarly, the court's reliance on the detective's testimony that "it was apparent that [defendant] did not write some of the messages" is equally dubious. The detective was gleaning from the body of the messages that defendant did not write those messages. Yet the text in those text messages could have been written by the defendant to dissuade the reader from believing she was the sender. Moreover, the fact that some of the messages contained text that pointed to authorship by someone other than the defendant did not render all inadmissible.
Finally, and most importantly, the court's reliance on context overlooks the most obvious fact: the messages were found on her cell phone. Defendant admitted that the phone was hers and it was found in close physical proximity to her when the search was conducted (another fact which the court specifically states should hold little weight). It is a plain fact of life that, while occasionally people let others use their cell phones, cell phones are virtually always carried by their subscriber. When cell phones are loaned, such is usually for the borrower to make a single call, not to send and receive text messages over a period of months. Indeed, there are currently numerous cases, making their way through the federal courts of appeals and to the Supreme Court, involving "cell phone tracking," i.e. the use by law enforcement to track the movements of a cell phone user by obtaining from cell phone providers the dates, times and locations a user's phone "checked in" with cell sites. This comes through an order under the Electronic Communications Privacy Act (and here is the issue, since such an order requires less than a showing of probable cause). Using that information, law enforcement can track, in granular detail, the movements of a person over thousands of miles and months of time. The implicit assumption in all of these cases is that the subscriber is the person using the phone. The Koch court, presumably, would toss all of the cases brought by subscribers (and so potential targets of law enforcement) since, under the Court's logic they would not have standing; someone other than the subscriber could have been carrying the user's phones up and down the East Coast for a month, for example. Following the court's logic to its conclusion is to demonstrate its problems.
WOMAN NEEDS MAN AND MAN MUST HAVE HIS MATE
If, as I have argued, the court erred so obviously in finding the text messages inadmissible in Koch, the reader must be wondering why it would have done so. The reason, I believe, is simple: the court sympathized with the defendant and thought she was either legally innocent or, if technically guilty, a woman who submitted to being an accomplice because her boyfriend sold marijuana. In the court's recitation of the facts, it notes that the money was seized from a dresser drawer that had men's clothes in it and that marijuana paraphernalia of several types was found in a men's shoebox seized from a dresser containing male clothes. Koch lived with her boyfriend and her brother. The evidence pointed to the boyfriend; Koch, if guilty at all, was guilty of giving her boyfriend a place to keep his drugs. Indeed, the jury's conviction of defendant as an accomplice in possession of marijuana shows what the "flavor" of the case was, regardless of the legal sufficiency of the evidence. The court, feeling sympathy for the defendant but unable to justify a reversal of her conviction on grounds of insufficient evidence, instead "gave" her the admissibility ruling so that she would have to be retried, if at all, with diminished evidence.
THAT NO ONE CAN DENY
In deciding the matter "on the equities," the Koch court was not alone. In TR Investors LLC v. Genger, the Delaware Supreme Court recently affirmed the trial court's finding of spoliation and imposition of sanctions, deferring to the findings of the trial court even though they were dubious at best. As I discussed at length in my February 2010 two-part article on Genger for the Legal Intelligencer, the trial court found that Genger had violated a stand-still order by having a computer expert wipe the "unallocated space" on his computer hard drive (the portion of the hard drive where deleted files, file fragments, temporary files, and other information can be found by forensics experts even though the same data is inaccessible to the user). This finding was a stretch, at best, since both parties had already searched the computer according to a protocol agreed to by both parties and retrieved the data they sought, the unallocated space would have contained temporary file versions of files Genger's opponent was not permitted to see, so the only way to prevent that opponent from seeing those files would have been to wipe the unallocated space and, perhaps most importantly, the protocol did not call for the parties to preserve unallocated space and omitted from it the making of a bit-stream, forensic image of the hard drive, which is done in virtually all such situations. Indeed, the creation of a forensic image is so standard in such protocols -- drafted by the best lawyers in this multi-million dollar matter -- that its absence in the protocol was so conspicuous as to lead one to conclude that it had to have been intentional.
Genger lost, nevertheless, lost for the same reason Koch won -- the equities. Although he denied it, the evidence was more than sufficient to show that Genger deceived business partners and, after a bad divorce, tried to manipulate shares in his business that he had given to his son, whom he had alienated.
The equities also played an important role in Bimbo Bakeries USA v. Botticella. There, the 3rd U.S. Circuit Court of Appeals was called upon to apply the "Inevitable Disclosure" doctrine to bar the defendant, who possessed trade secrets, from working for rival Hostess Brands. The defendant was one of seven or eight people in the world who knew how Thomas' made the "nooks and crannies" in its English muffins. Based solely on that fact, the doctrine should have applied when the defendant moved from one bakery company to its rival. The 3rd Circuit, however, relied not simply on these facts, but on the fact that, in the period following his agreement to work for his new employer but just prior to his informing his old employer of that agreement, the defendant copied key electronic files to a USB "thumb drive." Those files concerned business strategies and all other manner of information that the defendant's new employer should never have gotten, but none of it had anything to do with the inevitable disclosure of the "nooks and crannies" formula or process. What those files did have to do with was showing how dirty the defendant's hands were, i.e. the equities lay with his former employer. Under those circumstances, it was easy for the trial court to apply the Inevitable Disclosure doctrine and for the 3rd Circuit to affirm. (Full, but not necessarily, inevitable disclosure: our firm conducted the forensic analysis and provided the expert testimony showing that defendant Chris Botticella had copied those files.)
YOU MUST REMEMBER THIS
In all cases, from slip and falls before a jury to suppression motions before a judge to evidentiary rulings on admissibility, the equities have and will play a part. Judges are human and humans have sympathies. Courts strive to be impartial but, as with all human endeavors, will never meet a standard of perfection.
Equities will play a greater role in cases such as those involving e-discovery, digital forensics and technical evidence in general. With notable exceptions, judges, just like people generally, routinely know less about such arcane subjects than they do about more common ones. When faced with evidence they do not understand, judges (and, as my defense attorney colleagues understood, jurors) will turn to evidence they do understand -- who seems to be in the right, who seems to be sincere on the witness stand -- i.e., the equities. The lesson for the practitioner who must present or seek to pick apart such evidence is that it is just as, if not more, important to present your case or attack your opponent's, on the equities even if it has nothing to do with the technical evidence. By presenting those equities, you explicitly or subtly persuade the trier of fact to side with you when he or she is stymied by the technical evidence on its merits.
Leonard Deutchman is general counsel and administrative partner of LDiscovery, a firm with offices in New York City, Fort Washington, Pa., McLean, Va., Chicago, San Francisco and London that specializes in electronic digital discovery and digital forensics.
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Craig Ball
Leonard: Nice job! I really like the way you themed to the lyrics of "As Time Goes By." Clever. Craig Ball
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