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Case Law

eDiscovery Case Law: Discovery Violations Result in Sanctions Against Plaintiff and Counsel

Yesterday, we reported on a case with no sanctions; today, we report on a case with a different outcome.

Both the plaintiff and plaintiff’s counsel have been ordered to pay sanctions for discovery abuses in a lawsuit in Washington court that was dismissed with prejudice on June 8, 2011.

In Play Visions, Inc. v. Dollar Tree Stores, Inc., No. C09-1769 MJP (W.D. Wash. June 8, 2011), the plaintiff moved to voluntarily dismiss its case with prejudice. The defendants did not argue against dismissal but did seek sanctions from the plaintiff based on what they considered to be “a pattern of sanctionable discovery misconduct.” The court ruled that discovery abuses had occurred, and fined the plaintiff and plaintiff’s counsel $137,168.41 “jointly and severally”. The misconduct of the plaintiff, Play Visions, Inc., included:

  • Misrepresentation of Available Documents: Play Visions claimed that all relevant documents were kept in hard copy only; however, deposition of Play Visions’ CFO revealed that electronic records existed that should have been presented months earlier under discovery.
  • Falsified Expert’s Report: The plaintiff’s expert report was prepared by plaintiff’s counsel Mark Lorbiecki and only signed and “approved” by the expert. In addition, the court discovered that the plaintiff had violated the court’s protective order by revealing confidential information to the same expert witness.

As a result of these misrepresentations and discovery abuses and others, the court ruled for the defendant’s motion and demanded the plaintiff and its counsel pay sanctions:

  • The court found that Play Visions, Inc. had falsely certified that all relevant records had been saved in paper format and delayed the search and production of documents. Play Visions’ counsel was found to have been negligent in familiarizing himself with Play Visions’ document practices and to have failed in assisting his client in mandatory discovery.
  • Accordingly, the court considered every case where the defendant was forced to do extra work as a result of the plaintiff’s delays and inaccuracies, and fined Play Visions, Inc. and its counsel $137,168.41 jointly and severally, due within 15 days of the order.
  • Not finding “that the discovery violations in this case merit finding the entire case exceptional under 35 U.S.C. § 285”, the court ruled against shifting any attorney’s fees in this case.  Otherwise, the sanctions award could have been even higher!

So, what do you think? Do the discovery violations committed by Play Visions and by its attorney demand monetary sanctions on this scale? Did Play Visions actually believe that they had no relevant electronic files?  Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Case Law: No Sanctions Ordered for Failure to Preserve Backups

A sanctions motion has been dismissed by the U.S. District Court of Texas in a recent case involving electronic backups and email records, on the grounds that there was no duty to preserve backup tapes and no bad faith in overwriting records.

The plaintiffs in Ajay Gaalla, et al v. Citizens Medical Center, et al, No. V-10-14, 2011 WL 2115670 (S.D. Tex. May 27, 2011) had made a motion for sanctions against the defendant for alleged damage to backup tapes, including emails and other electronic documentation. On May 27, the court denied the motion for sanctions against the defendant, although new instructions on maintaining copies of disaster recovery files have been imposed in this case.

  • Plaintiffs presented the argument that the “recycling” or overwriting of disaster recovery backup tapes by the defendant, performed on a 7- or 14-day cycle after the lawsuit was filed, represented spoliation. Accordingly, the plaintiffs requested the maximum sanctions against the defendant for “failure to preserve the backup tapes.”
  • Preservation of backup tapes was not previously been discussed in this case until this motion for sanctions on grounds of data spoliation, but plaintiffs alleged that the failure to preserve backups, coupled with the failure to take snapshots of particular email accounts and “evidence that certain CMC employees had deleted emails from their account at some point in the past”, warranted harsh sanctions.
  • The defendants argued that they had no duty to preserve backups of records, since disaster recovery systems are “rarely” backed up after litigation has begun. They also presented “snapshots” taken of email accounts to demonstrate that there was no intent to destroy information and that attempts had been made to record all relevant evidence.
  • The court referred to the ruling in Zubulake v. UBS Warburg LLC, 220 F.R.D. (S.D.N.Y. 2003), which states: “[A] litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy.” Under this standard, the court found that the defendant was within its rights to overwrite the existing backups as often as such maintenance was normally scheduled.
  • The court also ruled that, with no prior discussion of the backup tapes and “in the context of this case,” there was no cause for sanctions against the defendant, lacking evidence that the defendant acted in bad faith in recycling the tapes used to make the recovery backups.
  • However, the court did order additional discovery efforts to be undertaken in the form of “disaster recovery first of the month” email files to be preserved in their current state and that plaintiffs’ expert be allowed to search them (at defendant’s expense) as well as a “journaling” process to retain email accounts of key parties in the case.

So, what do you think? Do parties have an obligation to maintain copies of all backup tapes for litigation? Please share any comments you might have, or let us know if you’d like to know more about a particular topic.

eDiscovery Case Law: Never Mind! Judge Scheindlin Withdraws FOIA Requests Opinion

Back in February, eDiscovery Daily reported that Southern District of New York Judge Shira A. Scheindlin’s latest opinion regarding eDiscovery best practices.  In National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 10 Civ. 3488, she ruled that the federal government must provide documents “in a usable format” when it responds to Freedom of Information Act (FOIA) requests.

In this case, the National Day Laborer Organizing Network, Center for Constitutional Rights and the Immigration Justice Clinic at the Benjamin N. Cardozo School of Law sued to require production of a wide range of documents under the Freedom of Information Act in August 2010.  In response, the government agency defendants produced documents grouped together in large files that were not searchable, for which individual documents could not be easily identified, with emails separated from their attachments.

In ruling at that time, Judge Scheindlin noted that “Once again, this Court is required to rule on an eDiscovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which ESI would be produced.”, and ruled that federal agencies must turn over documents that include “metadata,” which allows them to be searched and indexed.  Indicating that “common sense dictates” that the handling of FOIA requests should be informed by “the spirit if not the letter” of the Federal Rules of Civil Procedure, Judge Scheindlin indicated the government offered “a lame excuse” for delivering non-searchable documents.  A copy of the original opinion and order can be found here.

Now, that opinion has been withdrawn.

In a very short order withdrawing the opinion, Judge Scheindlin stated:

“This court has been informed that the parties have recently resolved their dispute regarding the form and format in which records will be produced by defendants in this Freedom of Information Act lawsuit.  In the interests of justice, this Court now believes that it would be prudent to withdraw the opinion it issued on February 7, 2011 (Docket #41).  I do so because, as subsequent submissions have shown, that decision was not based on a full and developed record.  By withdrawing the decision, it is the intent of this Court that the decision shall have no precedential value in this lawsuit or in any other lawsuit.

The Court also withdraws its Supplemental Order dated February 14, 2011 (Docket # 50).”

So, as Emily Litella would say, “Never Mind!”

So, what do you think?  What impact does the withdrawal of the opinion have on future eDiscovery cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: District Court Judge Affirms $1 Million Sanction to Pappas in Victor Stanley
 

One of the first posts ever published in eDiscovery Daily was this one, where defendant Mark Pappas, President of Creative Pipe, Inc., was ordered by Magistrate Judge Paul W. Grimm to  “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs that will be awarded to Plaintiff as the prevailing party pursuant to Fed. R. Civ. P. 37(b)(2)(C).”.  Judge Grimm found that “Defendants…deleted, destroyed, and otherwise failed to preserve evidence; and repeatedly misrepresented the completeness of their discovery production to opposing counsel and the Court.”

Upon appeal, District Court Judge Marvin J. Garbis declined to adopt the order regarding incarceration, stating: “[T]he court does not find it appropriate to Order Defendant Pappas incarcerated for future possible failure to comply with his obligation to make payment of an amount to be determined in the course of further proceedings.”

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”  As a result, the court awarded $901,553.00 in attorney’s fees and $148,297.04 in costs, including the costs for the Plaintiff’s computer forensic consultant, finding that “Defendants’ first spoliation efforts corresponded with the beginning of litigation” and that “Defendants’ misconduct affected the entire discovery process since the commencement of this case.”

Naturally, the award was appealed.

On Tuesday, June 14, Judge Garbis affirmed Judge Grimm’s prior Report and Recommendation ordering the award.  Judge Garbis noted that “The Court’s stated standard for includible fees and costs is consistent with the purpose of designing a sanction that will ‘restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.’  Judge Garbis discussed and rejected all of Creative Pipe’s objections as to the amount of the award, adopting Judge Grimm’s findings that all of these fees were in fact related to the discovery malfeasance.

With Creative Pipe having already paid a total of $478,409.92, a balance remains under the order of $571,440.12, which concluded with Judge Garbis stating that “Defendants shall, by July 15, 2011, pay Plaintiff…the balance due”.  No mention of Judge Grimm’s original automatic jail sanction for non-payment of the fees, though, Judge Garbis originally said he might impose jail sanctions for non-payment.

So, what do you think?  Will the defendant pay the rest?  Appeal to the Circuit Court?  Could he still go to jail?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production

The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

In Weatherford U.S., L.P. v. Chase Innis and Noble Casings Inc., No. 4:09-cv-061, 2011 WL 2174045 (D.N.D. June 2, 2011), the court ruled to allow the plaintiff to select and hire a forensic expert at its own expense to conduct imaging of the defendants’ hard drives. The purpose of this investigation was to discern whether or not confidential data that was downloaded from the plaintiff’s computers was, in fact, used in the building of the defendants’ own oil services firm.

Although the judge noted that courts are generally “cautious” in authorizing such hard drive imaging, this motion was substantiated by the defendant, Innis’s, “acknowledgment that he downloaded [plaintiff’s] files to a thumb drive without permission.” The court believed that circumstances of the case warranted further investigation into the defendant’s computer history:

  • The plaintiff, Weatherford US LP, had previously alleged that Chance Innis, a former employee, had downloaded confidential and proprietary information and used it to his advantage in starting his own competing company, Noble Casing Inc.
  • Innis had admitted to returning to Weatherford US offices late in the evening of the day he was terminated and downloading files onto a thumb drive without permission. Two weeks later, he launched his own competing oil services company, the co-defendant in this case, Noble Casing Inc. However, Innis maintains that he did not later access the files stored on his thumb drive and never used them in the process of starting his own company.
  • Contrary to these assertions, forensic examination of the thumb drive showed that the files were later accessed; whether or not they were instrumental in the startup of Noble Casing Inc. remains in question.
  • The plaintiff requested access to the defendant’s computers in the pursuit of previously subpoenaed documents, proposing that they select, hire, and pay for the services of a forensic investigator to image the defendants’ hard drives.
  • The defendants objected, proposing instead that an expert be chosen in agreement by all parties.
  • The court ruled in favor of the plaintiff’s motion in this instance, agreeing that all materials imaged will be shown to the defendant to screen for privilege before being shared with the plaintiff.
  • The court maintained that it is not unusual for imaging of hard drives to be allowed by the court in cases such as this, “particularly in cases where trade secrets and electronic evidence are both involved.”

So, what do you think?  Do you agree that Weatherford should have been allowed to examine images of the defendants’ hard drives, or should Innis’ privacy and that of his company have been protected?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards
 

Normally, eDiscovery Daily reports on cases related to eDiscovery issues after the decision has been rendered.  In this case, the mere filing of the lawsuit is significant.

Friday, we noted that competency ethics was no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain.  An interesting article from Robert Hilson at the Association of Certified eDiscovery Professionals® (ACEDS™) discusses what may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.  A copy of the article is located here.

J-M Manufacturing Co., Inc., a major manufacturer of PVC piping, had hired McDermott to defend against civil False Claims Act charges concerning the quality and sale of its products to federal and state governments. After the case was filed in January 2006, it remained under seal for nearly three years.  According to the complaint, during that time, a large-scale document review ensued (160 custodians) and McDermott hired Stratify, an outside vendor, to cull through the ESI.

J-M retained Sheppard Mullin Richter & Hampton to replace McDermott in March 2010.  Why?  According to the complaint, McDermott worked directly with the Assistant US Attorney to develop a keyword list for identifying responsive ESI, but, despite this effort, the first production set was returned by the government after they found many privileged documents. The complaint indicates that McDermott and its contract lawyers then produced a second data set again with a large number of privileged documents even though it was filtered through a second keyword list.

J-M contends in the complaint that McDermott's attorneys “performed limited spot-checking of the contract attorneys' work, [and] did not thoroughly review the categorizations or conduct any further privilege review.”  After Sheppard replaced McDermott on the case, they asked for the privileged documents to be returned, but the “relator” refused, saying that McDermott had already done two privilege reviews before giving those documents to the government and, therefore, J-M had waived the attorney-client privilege. In the complaint, J-M contends that 3,900 privileged documents were erroneously produced by McDermott as part of 250,000 J-M electronic records that were reviewed.  It is unclear from the complaint whether McDermott provided the contract reviewers themselves or used an outside provider.  It will be interesting to see how this case proceeds.

So, what do you think?  Have you experienced inadvertent disclosures of privilege documents in a case?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Completing Production AFTER Trial is Too Late

In DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011), repeated, flagrant, and unrepentant failures of the District of Columbia to comply with discovery orders, failure to supplement discovery responses, and eventual production of thousands of e-mails—some more than two years old—after the date of trial resulted in a sanction of waiver of privilege over documents sought by plaintiffs.

Plaintiffs filed an action seeking injunctive and declaratory relief for the failure of the District of Columbia Government to provide them with a free appropriate public education as required under the Individuals with Disabilities and Education Act. On the first day of trial six years later, counsel for the District acknowledged that the District several days earlier had begun a rolling production of thousands of emails per day that was expected to continue through the end of trial. Counsel for the District stated that the court had not been informed of production problems because it had been hoped review of the documents for relevance and privilege and thus production of the documents could have been completed earlier. From the bench, the court ordered the District to produce all of the email without objection and with privilege waived within one week of the end of the trial so that plaintiffs could seek to supplement the trial record if necessary. The District sought reconsideration of the order.

Likening the District’s posture to an airplane with landing gear that deploys only after touchdown, the court denied the District’s motion. Waiver of privilege was an appropriate sanction because it was just and was proportional between offense and sanction, considering the District’s violation of multiple discovery orders and failure to meet its obligation to supplement its discovery responses. The court concluded that its sanction was justified considering prejudice to plaintiffs, prejudice to the judicial system, and the need to deter similar misconduct in the future. Since the District chose not to bring the situation to the court’s attention until the day of trial, the court “had no practical alternative short of entering a default.”

The court held that whether the District had acted in good faith and whether plaintiffs also had committed discovery violations was irrelevant:

Whether the District made a good-faith effort to produce all responsive e-mails before the trial is irrelevant. As explained above, it was not sanctioned for failing to make a good-faith effort. It was sanctioned for openly, continuously, and repeatedly violating multiple Court orders, failing to adhere to or even acknowledge the existence of the Federal Rules’ discovery framework, and committing a discovery abuse so extreme as to be literally unheard of in this Court. The Rules require more than simply making a good-faith effort to produce documents. They require adherence to a very precise framework for navigating the discovery process. Moreover, the duty to adhere to clear Court orders is among a lawyer’s most basic. Were it not for those two directives—the Federal Rules’ discovery framework and Court orders regarding discovery — discovery would devolve into pure bedlam. Disciplined adherence to those Rules and Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process. A good-faith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.

So, what do you think?  Have you ever had opposing counsel try to produce documents at the beginning of trial – or even after?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Sue Me and Lose? Pay My Costs.

In a ruling that may give some plaintiffs’ lawyers pause, a federal judge in Pittsburgh has ruled that the winning defendants in an antitrust case are entitled to reimbursement of more than $367,000 in eDiscovery costs.

In Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., No. 2:07-cv-1294, 2011 WL 1748620 (W.D. Pa. May 6, 2011), U.S. District Judge Terrence F. McVerry issued a 25 page opinion, finding that courts are increasingly approving awards of eDiscovery costs, noting that one judge described them as “the 21st century equivalent of making copies.”

In the suit, Race Tires America claimed that its competitor, Hoosier Racing Tire Corp., violated Sections 1 and 2 of the Sherman Act by entering into exclusive dealing contracts with motorsport sanctioning body Dirt Motor Sports Inc. that included a “single tire rule.”  Under the single tire rule, Dirt Motor Sports required that drivers and racers participating in its races use a specific brand of tire for a series of races or for the entire racing season, which Race Tires America argued shut it out of the market.

But Judge McVerry dismissed the suit on summary judgment, holding that such exclusive contracts are permissible in instances when a sports-related organization has freely decided that it wants exclusivity and has good-faith, pro-competitive or business justifications for doing so.  The decision was appealed to the 3rd Circuit, where the defendants won again and, after winning the appeal, the defendants filed their bills of costs in the district court.

The plaintiff argued that the costs should be disallowed because “electronic document collection, hard drive imaging and indexing and searching, commonly referred to as ‘eDiscovery charges,’ are not enumerated under Section 1920(4), and thus are not properly deemed recoverable costs.”  But Judge McVerry found that Congress, in the Judicial Administration and Technical Amendments Act of 2008, modified the wording of Section 1920(4), changing the phrase “fees for exemplifications and copies of papers” to read “fees for exemplification and the costs of making copies of any materials.”  Since that amendment, Judge McVerry said, “no court has categorically excluded eDiscovery costs from allowable costs.”  For example, in an Idaho case, Judge McVerry noted, the court awarded $4.6 million for the costs incurred for “the creation of a litigation database.”

Given the extent of the defendant’s eDiscovery activities, including copying nearly 500 gigabytes of data in response to over 400 search terms and creation of a litigation database, the court awarded $367,000 of the $389,000 eDiscovery costs requested by the defendants.

So, what do you think?  Should plaintiffs have to reimburse eDiscovery costs to defendants if they lose?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Defendant Can’t Be Plaintiff’s Friend on Facebook

In Piccolo v. Paterson, Bucks County, Pa., Common Pleas Court Judge Albert J. Cepparulo denied the motion from the defendant requesting access to the photos of plaintiff Sara Piccolo posted in her Facebook account.

Piccolo filed an action against the defendants after being injured in a one-car accident while a passenger in a car driven by defendant Lindsay Paterson. According to the defense motion, filed by attorneys at Moore & Riemenschneider, Piccolo testified she had a Facebook account and was asked at deposition if the defense counsel could send a “neutral friend request” to Piccolo so that he could review the Facebook postings Piccolo testified she made every day.  Piccolo’s attorney, Benjamin G. Lipman , ultimately denied the request, responding that the “‘materiality and importance of the evidence … is outweighed by the annoyance, embarrassment, oppression and burden to which it exposes'” the plaintiff.

The defense argued that access to Piccolo’s Facebook page would provide necessary and relevant information related to the claims by Piccolo and cited a case, McMillen v. Hummingbird Speedway, Inc. (previously summarized by eDiscoveryDaily here), in which the court ordered the plaintiff to provide his username and password to the defendant’s attorney. The plaintiff’s attorney argued that the defense had only asked for the pictures Piccolo posted on Facebook and that they had already been provided with “as complete a photographic record of the pre-accident and post-accident condition” of Piccolo.

As a result of the accident in May 2007, Piccolo suffered lacerations to her lip and chin when hit in the face with an airbag. She had 95 stitches to her face and then surgery to repair her scarring six months later. With permanent scars on her face, Piccolo allowed the insurer in 2008 to take photographs of her face and gave the defense 20 photos of her face from the week following the accident and five photos from the months just before the accident.

In Piccolo’s response to the defense motion, Lipman argued that defense counsel had only asked at Piccolo’s deposition about the pictures she posted on Facebook, not any textual postings. He said that the defendant had already been provided “as complete a photographic record of the pre-accident and post-accident condition” of Piccolo as she “could reasonably have a right to expect in this case.”

Judge Cepparulo agreed, ruling with the plaintiff and denying the defense access to Piccolo’s Facebook page in a one-paragraph motion.

So, what do you think?  Did the judge make the correct call or should he have issued a ruling consistent with McMillen?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Cut and Paste Makes the Cut as Evidence
 

In United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), the defendant in a criminal case appealed his conviction and raised the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

Detective George Clifton, a member of the Miami–Dade Police Department's Sexual Crimes Bureau, posing as a male living with his girlfriend and his girlfriend's 14–year–old daughter, conducted instant message (IM) online chats with Keith Lanzon that led to Lanzon being arrested and charged with violating 18 U.S.C. § 2422(b), which provides that:

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

Detective Clifton saved these conversations by copying the IM communications and pasting them into a Microsoft Word document, saving the Word document to a “floppy” disc, for printing in transcripts. While Detective Clifton did not save any of the IM conversations in their original format, he did compare the actual IM "chat screens" to the Word document he had created to verify that the Word document exactly matched the IM conversations.

At trial, the prosecution introduced the Word document with the cut-and-pasted IMs, and Lanzon was convicted.  Lanzon appealed to the US Eleventh Circuit Court of Appeals, claiming, inter alia, that the document was improperly admitted, and that the admission of the document violated the Due Process Clause and the Best Evidence Rule.  Lanzon also argued the transcripts violated the rule of completeness in FRE 106 claiming that Detective Clifton failed to include the entire chat transcript, including only the edited portion that supported his case.  FInally, Lanzon claimed that the prosecution failed to properly authenticate the Word document.

The Eleventh Circuit found that Lanzon failed to prove bad faith by the government in failing to preserve the original IMs. The court also rejected Lanzon's rule of completeness argument, finding that “There is no indication that additional parts of the conversation exist.”

As for the failure to authenticate claim, the Eleventh Circuit also rejected that claim, finding that “Evidence may be authenticated through the testimony of a witness with knowledge. FRE 901(b)(1). The proponent need only present enough evidence "to make out a prima facie case that the proffered evidence is what it purports to be.”

A copy of the opinion can be found here.

So, what do you think?  Have you dealt with a case involving evidence cut and pasted into a document?  Please share any comments you might have or if you’d like to know more about a particular topic.