Evidence

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On December 1, 2017, two amendments to the Federal Rules of Evidence came into effect that impact how courts authenticate digital evidence. The addition of two categories to Rule 902’s list of self-authenticating documents seeks to streamline the introduction of digital evidence by avoiding costly delays that often serve little purpose. In doing so, it promises greater efficiency to those who adapt their practices to the new requirements.

Rule 902(13) waives the requirement of external authentication for “records generated by an electronic process or system,” provided that the accuracy of the process or system is certified by a person who meets the qualification requirements of 902(11) or (12). Examples of such records provided by the Advisory Committee include an operating system’s automated log of all USB devices connected to the computer, or a phone software’s machine-generated record of the time, date, and GPS coordinates of each picture taken.

A split Eighth Circuit recently reversed a prior panel ruling and reignited antitrust claims against distributors of pre-filled propane tanks. The 5-4 majority cited the 1997 Supreme Court decision Klehr v. A.O. Smith Corp. to rule that for allegations of a price-fixing conspiracy under the Sherman Antitrust Act, each sale at an artificially inflated price restarts the statute of limitations.

When we think of clouds, we likely picture cumulus, stratus, and cirrus ones, not the type of “cloud” that holds data and software. The latter type of cloud is generally controlled by a third-party service provider and is used to store and transmit information in a shared environment. The use of clouds is ever-increasing, including by attorneys. This wide-spread use has prompted recent Illinois State Bar Association’s Professional Conduct Advisory Opinion Number 16-06 (the “Opinion”), which details attorneys’ obligations when using a cloud, which is allowed in Illinois.

On October 11, 2016, Martin Smith petitioned the Supreme Court for a writ of certiorari to review a decision by the Ninth Circuit. After Smith failed to file a timely tax return, the IRS assessed a deficiency against him. Smith filed a belated Form 1040, and the IRS determined he owed an additional $60,000 in taxes. By this time, Smith was unemployed and insolvent, and ultimately filed for bankruptcy. The opportunity for Smith to discharge his tax debt rests exclusively on the interpretation of two terms in the relevant statute.

On October 5, 2016, two district courts came to opposite conclusions on whether putative class action plaintiffs had standing to bring claims based on prospective employers’ failure to comply with Fair Credit Reporting Act (FCRA) disclosure requirements.

Standing under Article III of the Constitution requires (1) an injury in fact (2) fairly traceable to the challenged conduct of the defendant and (3) likely to be redressed by a favorable judicial decision. Earlier this year, the Supreme Court in Spokeo, Inc. v. Robins clarified that to confer standing, an injury in fact must be both particularized – affecting the plaintiff in a “personal and individual” way – and concrete – “real, not abstract.”

While attorneys provide legal advice to their clients, they are sometimes the recipients of such advice from their own counsel, including in-house firm counsel. Agreeing with recent decisions by the highest courts of Georgia and Massachusetts, a panel of the First Department Appellate Division this June handed down a decision declaring such advice protected by the attorney-client privilege. See Stock v. Schnader Harrison Segal & Lewis LLP.

In-house counsel often communicate with corporate management under the assumption that these communications are protected by the attorney-client privilege— absent some type of unusual and extraordinary circumstance, such as waiver of the privilege or the crime-fraud exception. A surprising number of both in-house and outside counsel, however, are unfamiliar with the longstanding “fiduciary exception” to the attorney-client privilege. Forty-five years ago, in Garner v. Wolfinbarger, the Fifth Circuit allowed the attorney-client privilege of a corporation to be pierced by the corporation’s shareholders upon a showing of “good cause.” While some courts have rejected this approach, a New York appellate court recently joined other courts, including the Delaware Supreme Court (see Wal-mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund) in adopting it.