Authentication of Electronic Records – Some Recent Developments

Canadian and American courts (and others) have been making pronouncements about the reliability of electronic documents for various purposes, not all of them equally persuasive, and the Canadian ones more sceptical than the American courts — perhaps only because of the facts before them.

Comments welcome on any of these cases: were they rightly decided? Do they suggest gaps in legislation?

1. In Waterloo (City) v. Townsend (Ontario Small Claims Court April 26/11), the Deputy Judge, J.Sebastian Winny (i.e. practitioner acting as judge), refused an application to serve documents on a defendant by email. Here is the relevant extract from the reasons:

    From a reliability standpoint, email is in an entirely different and inferior category [to regular mail]. Many people have multiple email addresses, which may or may not be checked with any particular regularity, and may be checked only when the individual accesses a specific electronic device. Many people read only email from recognized senders. Most computers have virus and spam protection which may be triggered by attachments or by the mere fact that the sender’s address is not recognized. Incoming emails may be diverted to a junk email folder which may never be read simply by virtue of the volume of junk. Email accounts may be deleted from time to time, or even automatically deleted by reason of inactivity, without notice to potential senders of emails. I could go on.

    As for attachments, again these are in a different and inferior category compared to paper documents. Attachments may or may not open, and may or may not open in the same format as was transmitted by the sender or in a legible or intelligible format. These are matters of software and device compatibility.

    The affidavit evidence in this case, as in similar motions I have seen, is silent on these issues. That means that on a mechanical level, there is no evidence that if the order requested were granted, the defendant would be able or likely to receive, open and read the emailed document. The moving plaintiff effectively asks the court for leave to press send and hope for the best.

    Whether I approach the analysis with or without reference to my own knowledge of email apart from the evidence, the result is the same.

[case noted in the IT.Can newsletter for May 5, 2011 at page 3 and in Laws of .com May 2011]

2. Similarly, the BC Court of Appeal declined to admit email evidence of negotiations between an insurance company and the insured about the time limit of coverage under an employer’s policy. In McGarry v. Co-operators Life Insurance Co., 2011 BCCA 214 (CanLII), the Court held that there was no evidence on the authenticity of the emails tendered, since there was no statutory support in BC for rules of authentication, unlike the case in other provinces,

    There is no evidence in the record which is capable of establishing the authenticity of the emails as that issue was not addressed at the summary trial. Therefore, the issue cannot be resolved on appellate review and the admissibility of the email from BBD to Mr. Hewitt (exhibit C) and the email exchange discussing the COLA provision amendment (exhibit G) cannot be determined. (para.77)

The language of the court is a bit odd on the need for authentication. Here is the preceding paragraph:

    Authenticity is a concern addressed by the statutes of other provinces when dealing with electronic records and while there is no statutory requirement in this province to consider authenticity, it is a legitimate concern that should be addressed in determining whether an electronic document is sufficiently reliable to be admitted under s. 42.

I would have thought it was very basic evidence law that any document needs to be screened for authentication and hearsay, as well as satisfying the best evidence rule. The Uniform Electronic Evidence Act says how to apply the ‘best evidence’ rule (which normally requires an original document, or a good explanation for the absence of the original) to electronic documents. The Court was right that BC has not adopted it, as have many other jurisdictions. The Court was wrong in saying that the Canada Evidence Act does not touch the subject, though. Section 31.1 of the CEA is almost the same as the Manitoba statute quoted by the Court.

In any event the Court was correct in finding that foundation evidence for authenticity was needed, though if the evidence is not in dispute, then very little evidence is actually needed for the purpose — only evidence on which a trier of fact can find that the document is what it purports to be. Oral evidence under oath by the sender of the email that the printouts submitted as evidence are printouts of emails that were sent to the insurer, or received from the insurer, would be sufficient, unless challenged. Fortunately the case did not turn on the emails one way or the other.

[case also noted in the IT.Can bulletin of May 5/11 at page 1]

3. A Massachusetts court faced a challenge to the authenticity, or at least authorship, of emails in a prosecution for keeping a bawdy house. In Commonwealth v. Purdy, 2011 WL 1421367 (Mass.; Apr. 15, 2011). The defendant admitted that the emails came from his computer but said that someone else might have sent them. The court said this about emails:

    While emails and other forms of electronic communication present their own opportunities for false claims of authorship, the basic principles of authentication are the same. Evidence that the defendant’s name is written as the author of an email or that the electronic communication originates from an email or a social networking website such as Facebook or MySpace that bears the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant. There must be some “confirming circumstances” sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the emails.

The court found that there was enough other evidence in this case for the question to go to the jury. (Emphasis added. Is this the law in Canada?)

[case noted by Venkat in Eric Goldman’s blog on May 21, 2011. h/t Barry Sookman]

4. An Arkansas court had to deal with the basics lately: may electronic communications satisfy a statutory writing requirement? In Barwick v. Government Employee Insurance Co., Inc., 2011 Ark. 128 (March 31, 2011), the court properly held that the state’s version of the Uniform Electronic Transactions Act disposed of the question in the affirmative. The court’s inquiry was probably made easier by the fact that the person who had completed an application for insurance online tried to say that her waiver of extra liability coverage was invalid because not ‘in writing’, while trying to affirm the insurance coverage itself. Not a sympathetic party, in other words. The court did not have to get to the estoppel argument because the ‘not in writing’ argument failed so completely.

[case discussed by John Ottoviani in Eric Goldman’s blog on May 26, 2011. h/t Barry Sookman]

5. Speaking of authenticating social media, and in the light of the current controversy about identifying participants in the Vancouver riots after the Stanley Cup final last week by that means, a Swiss court recently convicted someone of ‘insult’ through her posts on Facebook. The person had an account in her own name and admitted the posting (for which she apologized, with no effect on her criminal liability.) Others who had been more effusive against the ‘victim’ (who had complained about the noise of parties in which the insulters had participated) had used false identities or had put ‘emoticons’ (the write-up does not say which ones) after their threats and had not been charged. The authorities had not gone to the social media companies to try to find out the identities of the posters who did not self-identify. Apparently calling someone an idiot (or the popular Swiss German equivalent) on Facebook is a crime in Switzerland. (It’s such a polite country.)

[case discussed by the firm Wengner Plattner on the International Law Office IT newsletter on June 21, 2011.

Is the legal world unfolding as it should, to the extent that these cases are evidence?

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