proof
THE JOURNAL OF THE TRIAL EVIDENCE COMMITTEE
SECTION OF LITIGATION | AMERICAN BAR ASSOCIATION
Fall 2009 VOL.18 NO.1
Admitting Public Records at Trial
By Petra L. Justice
W
ith the controversy regarding the
authenticity of President Obama’s
birth certificate still brewing in
the media, the veracity of public records has
been put in the national spotlight. However,
long before this controversy, lawyers have
been using public records at trial to prove
a variety of facts, such as marriage, divorce,
corporate status, birth, death, or citizenship.
While the admission of public records at trial
can be routine, it is important to be aware
of the necessary elements needed for admis-
sibility,1 which include establishing that the
document is: (1) an authentic public record;
Rule of Evidence 502: A Safety
Blanket for Protecting the
Attorney-Client Privilege
By William O. Reckler and Susan M. Ambler
L
awyers in the information era are all
too aware of the challenges involved
with large-scale document productions,
particularly those challenges related to the
need to preserve the attorney-client privilege
and avoid inadvertent waivers of it. The dif-
ficulty of ensuring that privileged documents
are not inadvertently produced is compli-
cated both by the volume of electronic data
that must often be reviewed and the desire
by courts and plaintiffs to proceed under
what frequently seem like unreasonably short
schedules. There is now, however, a potential
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 1
(2) relevant; and (3) falls under the public
record hearsay exception.
Establishing the Document as an
Authentic Public Record
When admitting a public record into evi-
dence, one must first establish that the docu-
ment is, in fact, an authentic public record.
Federal Rule of Evidence 901 states that the
requirement of authentication as a condition
precedent to admissibility can be satisfied by
“evidence sufficient to support a finding that
the matter in question is what its proponent
in this issue
claims.” Section (b)(7) of the Rule pertains to
Continued on page 10 Message from the Chairs
2
Satisfying the Best Evidence
Rule When the Original
Document Exists Only
as Electronically Stored
Information
3
for some respite from the pressures of protect- Online Resources to Evaluate
ing the privilege: Federal Rule of Evidence
502, signed into law on September 19, 2008, Experts’ Credentials and Prior
was intended to limit so-called subject-matter Statements
waivers, create uniformity with respect to 6
when an inadvertent waiver is deemed to
have occurred, and provide a mechanism
for rapid document productions.1 But the
Advisory Committee’s intent notwithstand-
ing, courts have yet to create a uniform
application of the rule. In fact, the state
of the law is as complex as ever, with each
court conducting a different ad hoc analysis
Continued on page 13
12/15/09 4:52:00 PM
 proof
EDITORIAL BOARD
MESSAGE
from the Chairs
COCHAIRS

T
Christina L. Dixon John P. McCahey he Trial Evidence
Zupkus & Angell, P.C. Hahn & Hessen LLP
Denver, Colorado New York, New York
Committee wel-
comes you to the
John H. McDowell Jr. Jacqueline Griffith 2009–10 bar year.
K&L Gates LLP Chehardy, Sherman, Ellis, Breslin, Get involved! Go to
Dallas, Texas Murray, Recile & Griffith, LLP our website, look over
Metairie, Louisiana
David Wolfsohn
our subcommittees, and
Woodcock Washburn LLP David T. Case let us know what you’d
Philadelphia, Pennsylvania K & L Gates LLP like to do. As you know,
Washington, DC we have a great num-
MANAGING EDITORS
Christina L. Dixon ber of committee mem-
Charles B. McFarland
Robert F. Parsley
Vinson & Elkins LLP
bers who regularly par-
Miller & Martin PLLC ticipate in making the
Houston, Texas
Chattanooga, Tennessee committee’s offerings to
Jonathan A. Choa
Eugene Illovsky members especially valu-
Morrison Foerster able. You should join us.
Potter Anderson & Carroon LLP
Walnut Creek, California
Wilmington, Delaware We will sponsor several
James J. Donohue programs at the Section
CASE COLUMNITS
White & Williams LLP Annual Conference in
David A. Kotler
Dechert LLP
Philadelphia, Pennsylvania New York City and the
Princeton, New Jersey ABA Annual meeting in
ABA PUBLISHING 2010. We have a number
E. Warren Moise Anna Sachdeva
Associate Editor
John H. McDowell Jr. of opportunities to pub-
Grimball & Cabaniss, LLC lish pertinent and valu-
Charleston, South Carolina
Andrea Siegert able articles. Whatever
AUTHORS Art Director your skill, share it with
Noel F. Stahl the committee!
Miller & Martin PLLC The committee asks
Nashville, Tennessee for your help in get-
ting new Tips from the
Bench and Tips from the
Trenches. Contact one
of our Judicial Liaisons
(Sarah Marmor, Rich de
David Wolfsohn Bodo, or Dipali Parikh)
Proof (ISSN 1938-8373) is published quarterly by the Trial Evidence Committee, Section of
Litigation, American Bar Association, 321 N. Clark Street, Chicago, IL 60654, www.abanet. to coordinate approach-
org/litigation. The views expressed within do not necessarily reflect the views or policies of ing a judge of your choice or providing your own
the American Bar Association, the Section of Litigation, or the Trial Evidence Committee. evidentiary war story.
This edition of Proof contains timely and
Copyright 2009 American Bar Association. All rights reserved. For permission to reprint,
quality content that is invaluable advice for the
contact ABA Copyrights & Contracts, 321 N. Clark Street, Chicago, IL 60654; fax: (312) 988-
6030; email: copyright@abanet.org. active litigator. William O. Reckler and Susan M.
Ambler’ “Rule of Evidence 502—A Safety Blanket
Address corrections should be sent to the American Bar Association, c/o ABA Service for Protecting the Attorney Client Privilege” is a
Center, 321 N. Clark Street, Chicago, IL 60654. must read for all involved in document produc-
tions.
http://www.abanet.org/litigation/committees/trialevidence
Petra Justice gives us a great reminder and
primer with “Admitting Public Records at Trial.”
Edward P. O’Leary’s “Satisfying the Best Evidence
Rule When the Original Document Exists Only
as Electronically Stored Information” is a crucial
Continued on page 12

Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association

931735_ProofCRXfa09.indd 2 12/15/09 4:52:02 PM

 Satisfying the Best Evidence Rule
When the Original Document Exists
Only as Electronically Stored Information
By Edward P. O’Leary
T
he best evidence rule is a common law rule
of evidence that dates back at least to the
1700s.1 The justification for the rule can
best be understood by considering the circum-
stances in which it arose. In the eighteenth centu-
ry, copies of documents were typically prepared by
hand; so the basis for the rule was the thought that
if an original document was not examined, there
was an increased possibility of fraud or mistake
when relying upon the accuracy and veracity of a
copy. However, with the development of a myriad
of sophisticated electronic devices to accurately
create, copy, and print documents, the rationale
for the rule has been significantly eroded. As a
result, the best evidence rule has evolved over
time to reflect and incorporate the ever-present
and changing effects of technology in our society.
Even though today documents that are created,
stored, and printed electronically are routinely
admitted into evidence without undue expense
or delay—provided there is no dispute regarding
fairness or the document’s authenticity—pitfalls
still remain. In particular, given the myriad dif-
ferent forms that electronic information can
come in, practitioners need to expand their con-
cept beyond traditional documents and consider
whether any information stored electronically is
subject to the best evidence rule.
The Federal Rule
The best evidence rule is codified in Rules 1001
through 1008 of the Federal Rules of Evidence.2
The primary purposes of the rule are to prevent
fraud and evidentiary inaccuracy when attempt-
ing to prove the content of a writing, recording,
or photograph.3 Among other things, the rule
provides that the original of a writing, recording,
or photograph is required to prove the contents
thereof unless secondary evidence is admissible.4
Rule 1001 defines the terms “writing” and “record-
ing” broadly. A writing or recording includes a
“mechanical or electronic recording” as well as
other forms of data compilation.5 An original of
a writing or recording is the writing or recording
itself, a negative or print of a photograph, or,
“[i]f data are stored in a computer or similar
devise, any printout or other output readable
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 3
by sight, shown to reflect the data accurately.”6
The rule specifically states that printouts of elec-
tronically stored information (ESI) are originals,
provided that a proper foundation for their admis-
sion is established. Moreover, Rule 1003 permits
duplicates to be admitted “to the same extent as
an original” unless a question is raised as to the
authenticity of the original or under circumstances
where it would be unfair to admit the duplicate
in lieu of the original.7 If the authenticity of the
ESI is challenged, it is then necessary to lay an
evidentiary foundation for records through the
testimony of a qualified witness.8 If the copy or
duplicate is illegible or incomplete, it likely will
be deemed “unfair” to admit it in to evidence in
lieu of the original.9
Does the Rule Apply?
The test to determine whether the best evidence
rule is applicable is straightforward. The rule’s
applicability is determined by whether contents of
the writing, recording, or photograph are sought to
be proved. If so, then the rule applies.10 Conversely,
if the proponent of the evidence is not attempting
to prove the contents of the document offered,
then the rule is inapplicable.11 Further, the rule
applies only when a witness attempts to testify
about the contents of a document without produc-
ing the actual item. While the test itself is straight-
forward, difficulty can arise with nontraditional
documents, Internet chat room transcripts, or data
from a global position device.
In addition, counsel should be careful to note
that the rule has a limited scope and does not apply
when the proponent of the evidence is attempting
to prove events that “just happened to have been
recorded or photographed, or those which can be
proved by eyewitnesses, as opposed to a writing or
recording explaining or depicting them.”12 The
reported decisions indicate that the scope of the
best evidence rule is often overestimated.13 Edward P. O’Leary
In those circumstances in which the rule does Edward P. O’Leary is an
apply, however, the proponent must produce the attorney with Fitzhugh
original, or a duplicate, or adequately explain its & Mariani LLP in Boston,
absence.14 Rule 1004 provides four instances in Massachusetts. He can
which other evidence of an unavailable original be reached at eoleary@
or duplicate is permitted. The original is not fitzhughlaw.com.
12/15/09 4:52:03 PM
 required and “other evidence” of the contents of a
writing, recording, or photograph is admissible in
those instances where the original has been lost or
destroyed; it is unobtainable by available judicial
process or procedure; it is in the possession of the
opponent who refuses to produce it after being
served with a notice to produce; or it is not closely
related to a controlling issue.15 In any of the
The need to foregoing instances, the contents of the writing,
recording, or photograph can then be proved by
satisfy the best “other evidence,” which includes duplicates and
any other proof, including oral testimony.
evidence rule
Electronically Stored Information
when seeking The need to satisfy the best evidence rule when
seeking to admit ESI is a common hurdle faced
to admit ESI is a by parties in both civil litigation and criminal
cases. The use of computers and other electronic
common hurdle devices for creating and storing information has
largely replaced traditional methods of record-
faced by parties keeping. Communicating by electronic mail, text
message, and instant message is now an ordinary
occurrence.16 Electronically stored information
in both civil comes in a variety of forms, including email,
websites, Internet postings, digital photographs,
litigation and and computer-generated documents and data
files.17 ESI also includes voice mails, instant mes-
criminal cases. sages, e-calendars, audio files, data on handheld
devices, animation, metadata, graphics, spread-
sheets, drawings, and other types of digital data.
Understanding the interplay between ESI and the
best evidence rule allows litigants to effectively
plan for having their electronic evidence admit-
ted regardless of how that information is created,
stored, retrieved, or printed.
The definition of “writings, recordings, and
photographs” set forth in Federal Rule of Evidence
1001 expressly includes evidence that is electroni-
cally generated and stored.18 Where computers
and other electronic devices are used to create
and store records, the display of such information
is typically accomplished through printouts. Over
the past several decades, printouts of electroni-
cally stored information have become common
evidence at trial, and the law relating to the rela-
tionship between ESI and the best evidence rule
continues to develop as technology continues to
transform the way we live and work.
As a general matter, for ESI to be admissible, it
must be: (1) relevant; (2) authentic; (3) not hear-
say or admissible under an exception to the hear-
say rule; (4) an original or duplicate, or admissible
as secondary evidence to prove its contents; and
(5) its probative evidence must outweigh its
prejudicial effect. Specifically with regard to the
fourth requirement, under Rule 1001(3), the
“original” of information stored in a computer is
“the readable display of the information on the
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any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 4
computer screen, the hard drive, or other source
where it is stored, as well as any printout or output
that may be read, so long as it accurately reflects
the data.”19
ESI and the Best Evidence Rule
Several recent decisions demonstrate the rela-
tionship between ESI and the best evidence rule.
The opinion of the Court of Appeals of Arkansas
in Dirickson v. State is instructive with regard to
what courts consider an original document in the
ESI context.20 In Dirickson, the court held that
printouts from archives of a police department’s
computer hard drive were sufficiently authen-
ticated where a computer expert and a police
officer testified that the printouts stated verbatim
the contents of Internet chats between the officer
and the defendant. The court further held that for
purposes of the state’s best evidence rule, which
is substantially similar to the cognate federal
rules, the printouts of the defendant’s Internet
conversations with the officer were “original” in
the context of computers. Therefore, the trial
court did not violate the best evidence rule when
it admitted the printouts rather than the officer’s
computer hard drive, which was unavailable. The
court also reasoned that even if the printouts were
not “originals” under Rule 1001(3), and the hard
drive was considered the original, the printouts
would be admissible under Rules 1003 and 1004
because the hard drive had been destroyed and
there was no evidence that the destruction was
purposeful by the prosecution.21 Therefore, the
court ruled that the printouts qualified as “other
evidence” under Rule 1004.
Similarly, the Court of Appeals of Indiana
ruled that the content of Internet chat room
communications between a defendant and an
undercover police officer that the officer had
“cut-and-pasted” verbatim into a word processor
were “original writings” under the state’s version
of the best evidence rule, which is identical to
the federal rule.22 In Laughner, the court held that
printouts of online instant message chats between
the defendant and undercover detective were the
“best evidence” of conversations, and therefore
were admissible in the prosecution of the defen-
dant.23 The court issued its ruling despite the fact
that the text was not the original text preserved
by the Internet provider’s logging feature, but
rather was a copy cut-and-pasted into a word pro-
cessing program by the officer. The court reached
its conclusion because the officer testified that he
saved the conversations with the defendant after
they were concluded and that the printed docu-
ment accurately reflected the content of those
conversations. Interestingly, in both Dirickson and
Laughner, the courts were clearly concerned about
12/15/09 4:52:03 PM
 the accuracy and veracity of the purported origi-
nal writings. While modern technology has made
completely accurate copies possible, it has also
made it more difficult to determine if documents
that purport to be originals are in fact original.
Proponents of electronically produced evi-
dence occasionally run afoul of the best evidence
rule when presenting oral testimony based on the
witnesses’ review of computer printouts without
actually introducing the printouts themselves into
evidence.24 In a case that illustrates some of the
difficulties that can arise in such circumstances,
the Ninth Circuit reversed a defendant’s convic-
tion for possession of a controlled substance with
intent to distribute.25 In Bennett, the defendant
was convicted of, inter alia, illegal importation of
a controlled substance under 21 U.S.C. §§ 952,
960. Illegal importation occurs when a defendant
imports a controlled substance into the United
States from “any place outside thereof.”
When arrested off the coast of southern
California, the defendant was traveling in a boat
that was equipped with a global positioning satellite
(GPS) device. The customs officer who arrested the
defendant testified that the GPS display data on the
defendant’s boat revealed that the boat had traveled
from Mexican waters to San Diego Bay. The trial
court admitted the officer’s testimony over a timely
best evidence objection even though the prosecu-
tion did not download and introduce into evidence
the travel information stored in the GPS. The
Ninth Circuit reversed the conviction for illegal
importation, ruling that the GPS display the officer
saw was “a writing or recording” within the meaning
of Federal Rule of Evidence 1001(1).26 Further, the
display was deemed a writing or recording because
the customs officer testified that he saw a graphical
representation of data that the GPS had compiled
about the path of the defendant’s boat. Because the
officer never actually observed the defendant’s boat
travel the path depicted by the GPS, his testimony
concerned the “content” of the GPS, which, in
turn, was evidence of the defendant’s travels.27 In
fact, the government admitted that the officer’s
testimony was presented solely to show that the
defendant had come from outside the United
States. Thus, Rule 1002 required the prosecution to
produce the original writing or recording, or a dupli-
cate. The Ninth Circuit concluded that the trial
court erred in admitting the proffered testimony
without the GPS-related data on which the offi-
cer’s testimony was based. Additionally, the court
observed that although Rule 1004 allows “other
evidence” of the contents of a writing, recording,
or photograph if the original is lost, destroyed, or
otherwise unobtainable, the government did not
present evidence that would permit the introduc-
tion of such other evidence.
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 5
Conclusion
The process of satisfying the best evidence rule
when the original document only exists as an elec-
tronic record is outlined in Rules 1001 through
1008 of the Federal Rules of Evidence and is fur-
ther explicated in the many opinions construing
those rules, some of which are referenced in this
article. However, the law in this area continues to
evolve together with changes in technology, as it
must. Whether counsel is engaged in representing
clients in civil or criminal matters, there is no
substitute for developing a familiarity with the
best evidence rule, and, in particular, realizing
that nontraditional “documents” may come under
its rubric.
Endnotes
1. Omychund v. Barker, (1745) 1 Atk 21, 49, 26 ER 15,
33 (stating that what is required is “the best that the nature of
the case will allow.”)
2. “The rule is perhaps more accurately dubbed the original
document rule, for instead of requiring the ‘best’ evidence in
every case, the rule actually requires the production of an
original document rather than a copy.” DeMarco v. Ohio
Decorative Products, Inc., No. 92-2294, 1994 WL 59009, at
*9 (6th Cir. Feb. 25, 1994) (citing Seiler v. Lucasfilm, Ltd.,
808 F.2d 1316, 1318 (9th Cir.1986)).
3. See 6 Weinstein’s Federal Evidence § 1002.03 (2006).
4. Fed. R. Evid. 1002.
5. Fed. R. Evid. 1001(1).
6. Fed. R. Evid. 1001(3).
7. “When the only concern is with getting the words or
other contents before the court, with accuracy and precision,
then a counterpart serves equally as well as the original, if the
counterpart is the product of a method which insures accuracy
and genuineness.” Fed. R. Evid. 1003. Advisory Committee’s
Notes.
8. See, e.g., U.S. v. Whitaker, 127 F.3d 595, 601 (7th
Cir. 1997) (“Agent Keeven testified that the records were
retrieved from Frost’s home computer, which was seized during
the execution of a federal search warrant of Frost’s home in
February 1994. The records were retrieved from the computer
using a Microsoft Money program. Agent Keeven was present
when that program was installed on the computer and when
the records were retrieved. Agent Keeven testified concern-
ing his personal knowledge and his personal participation in
obtaining the printouts.”).
9. Amoco Prod. Co. v. United States, 619 F.2d 1383, 1391
(10th Cir. 1980) (“We have affirmed exclusion of a photocopy
. . . where ‘the most critical part of the original . . . is not com-
pletely reproduced in the ‘duplicate.’”).
10. Fed. R. Evid. 1002.
11. See, e.g., S.E.C. v. Merrill Scott & Associates, Ltd.,
505 F. Supp.2d 1193, 1200 (D. Utah 2007) (“Rule 1002 of
the Federal Rules of Evidence requires a party to provide an
original writing to prove the writing’s contents. But, in this
case, the SEC is not attempting to prove the contents of
the written contracts between MSAL and investors. Rather,
MSAL and Mr. Brody made oral promises to investors, and
the best evidence of those verbal representations is the
investors’ testimony about what Mr. Brody and MSAL said
to them.”); Guzman v. Memorial Hermann Hosp. System,
— F. Supp.2d —, 2009 WL 1684580 *6 (S.D.Tex., June 16,
2009); (authenticity of insurance policy was uncontested
and witnesses testimony was not offered to prove content
of policy).
12. Lorraine v. Markel American Ins. Co., 241 F.R.D. 534,
576 (D. Md. 2007).
13. See, e.g., Merrill Scott & Associates, Ltd., 505 F. Supp.2d
at 1200.
Continued on page 15
12/15/09 4:52:04 PM

Michael Brennan
David Dilenschneider
Myles Levin
Jim Robinson
Michael Brennan is a
Research Analyst at Miller,
Canfield, Paddock & Stone
in Detroit, Michigan. David
Dilenschneider is Director
of Client Relations for
LexisNexis. Myles Levin is
CEO of Daubert Tracker.
Jim Robinson is the
Founder of JurisPro Inc.
The authors would also like
to acknowledge the con-
tributions of Carole Levitt,
President of Internet For
Lawyers. A more expansive
version of this article exists
at www.expertwitnesswhite
paper.com and is updated
on a periodic basis.
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 6
Online Resources to Evaluate Experts’
Credentials and Prior Statements
By Michael Brennan, David Dilenschneider, Myles Levin, and Jim Robinson
I
n a recent Vioxx lawsuit, the judge overturned
a defense verdict and ordered a new trial
because he found out that the defense expert
had misrepresented his credentials by testifying
that he was currently certified in internal medicine
and cardiovascular disease when, in fact, those
certifications had recently lapsed.1 Importantly, a
relatively easy search through certification infor-
mation available from the American Board of
Medical Specialties would have revealed the lack
of current certification to defense counsel.
Evaluating an Expert’s Credentials
A thorough researcher must double-check an
expert’s credentials rather than simply relying on
information related in an expert’s disclosure.
Studies indicate that falsifying credentials on a
ré sumé is not a rare occurrence. For instance,
ResumeDoctor.com recently conducted a study of
more than 1,000 resumes over a six-month period
and discovered that more than 40 percent of them
contained at least one significant inaccuracy
relating to dates of employment, job titles, or edu-
cation, and that more than 12 percent contained
two or more errors.2
Identity and Location
In order to evaluate credentials, you must know
the expert’s name—and a designation prepared
by opposing counsel is not necessarily reliable.
Opposing counsel is not likely to intention-
ally misspell an expert’s name, thereby making it
harder to find background information, but even
a typographical error could cause you to spend
hours searching in vain.
Accordingly, making sure that you have the
expert’s name (and any variants) is a must. Public
records search services can help verify an expert’s
name, but don’t overlook other information that
public records can provide, such as where the
expert has lived over the years. If an expert has
moved around often, it could be an indication
that the expert is trying to avoid licensing prob-
lems in a particular location (or locations) and,
therefore, a more expansive research effort is
necessary.
(Possible Sites: www.merlindata.com; www.
accurint.com)
The Expert’s Website
Once the expert’s name has been verified, his
or her professional website should be carefully
reviewed. If a search engine does not locate the
expert’s website, try entering the expert’s name or
company name as a dot com (e.g., expertname.
com). Many experts post their full curriculum
vitae, prior litigation experience, speaking engage-
ments, references, memberships and professional
affiliations, and authored works on their websites.
Is there anything embarrassing or contradictory
on the site? Does the expert pronounce that he
or she is “the leader in the industry” or put forth
similar bravado that could affect how the jury
perceives the expert? Imagine how the jury would
react if the pages of the expert’s website were dis-
played as exhibits at trial, because they very well
might be.
Expert Directories
When it comes to your initial credential gathering
efforts, don’t stop with just the expert’s website;
also determine whether or not that expert has a
listing in an expert or other professional directory.
Such directories provide a wealth of informa-
tion about experts, and this information can be
compared to the information that the expert has
provided through formal discovery efforts as well
as on his or her website. Has the expert included
embellished information in the directory in an
attempt to better market his or her services? A
simple comparison of the information provided by
the expert with his or her directory listing might
reveal discrepancies.
Social Networking Sites
Social networking sites are among the largest areas
of content growth on the Internet. For example,
the business-oriented Linkedin has more than 30
million registered users, spanning 150 industries.
On social networking sites such as these, individu-
als can create their own online profiles and share
information about interests. At such sites, a wealth
of information about an expert might be uncov-
ered, including professional background, employer,
specialties, education, recommendations, associa-
tions, contact information, and even a link to
his or her website. As this information is usually
personally posted by the expert, social networking
12/15/09 4:52:06 PM
 sites can be a boon to online researchers needing to
find out background information on experts.
(Possible Sites: www.linkedin.com; www.
facebook.com; www.classmates.com; www.
myspace.com; www.twitter.com)
Old Resumes
Because some experts may tweak their résumés
s over time, another place from which to gather
an expert’s credentials are curricula vitae filed in
prior lawsuits. Searching collections of court-filed
documents as well as online docket databases
(e.g., from LexisNexis CourtLink and Westlaw’s
CourtExpress) may yield such documents. In fact,
a particularly powerful new resource to conduct
such searches is CourtLink Single Search, which
enables the user to search both a vast collection of
dockets (85 million from federal and state courts)
and court-filed documents simultaneously.
(Possible Sites: www.courtlink.com; www.
courtexpress.com)
Educational Background
Once an expert’s educational background is
uncovered, verification of it is an important part
of the vetting process. This is particularly impor-
tant if you have compared the expert’s current
curriculum vitae to the expert’s credentials listed
elsewhere (e.g., on his or her own website, in a
directory listing, in an old curriculum vitae) and
discovered a discrepancy.
Sometimes you can verify an expert’s degree
by calling the Registrar’s Office of the appropriate
college or university, but some universities and col-
leges require a release and social security number
before they will verify an individual’s attendance
dates and degree conferral. Obviously, this will
be easier to get from an expert you are retaining,
as you can include the release form as part of the
retention agreement. Several online services allow
you to verify attendance and degrees. Although
these online services will not cover every college
and university in the United States, they often
have a list of those that participate in their service.
A little extra effort, often at a minimal cost, can
help avoid retaining an expert whose credentials
are invalid or can identify an opposing expert who
does not have the background and training claimed
in his or her curriculum vitae.
(Possible Sites: www.osac.state.or.us/oda
unaccredited.aspx; www.michigan.gov/
documents/Non-accrediteSchools_78090_7.pdf;
www.studentclearinghouse.org)
License and Specialty Certification Information
Licensing information can be found online for
virtually all 50 states and can easily be searched to
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any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 7
verify the current status for any licenses an expert
claims to hold. In addition, many organizations,
such as the American Medical Association, the
American Board of Medical Specialties, and the
American Board of Surgery, have their own web-
sites where one can either check the certification
status of experts online or review a listing of cre-
dentialed individuals and then verify them tele-
phonically. Alternatively, SearchSystems links
to over 45,000 public record databases, including
licensing databases. The metasite Portico can
verify licenses for occupations such as doctors,
contractors, architects, and more.
When reviewing licensing information or cer-
tifications, be on the lookout for suspicious lan-
guage. Words such as “resigned,” “restricted,” and
the like should raise questions and prompt further
investigation. Be sure to review the expiration
date of the license or certification. It should be
a matter of concern if the expert in question has
failed to renew the license but represents that he
or she is currently licensed.3 Whereas a lapsed
license may indicate that an expert once practiced
in the area but has since moved to another loca-
tion, words such as “suspended” or “surrendered”
are often an indication of disciplinary action or
other reason for the expert to have been forced
into surrendering his or her license. Why that
expert was forced to do so may be of extreme
importance—to both you and your client.
(Possible Sites: www.searchsystems.net; www.
brbpub.com/pubrecsites.asp; www.craigball.com/
hotlinks.html; http://indorgs.virginia.edu/portico)
Disciplinary Records
Nothing can be more discrediting to an expert
than a reprimand or license revocation for (or
even just an allegation of) professional miscon-
duct, especially if the misconduct is related to his
or her credibility, such as a fraud or perjury convic-
tion. All state governments and some professional
associations maintain records of professional mis-
conduct, and these records are sometimes avail-
able via the Internet. Because of the myriad of
possible sites to search, it is impractical to search
them individually. Accordingly, the best approach
to take when pursuing disciplinary records is
first to utilize public records to identify both an
expert’s current/prior residences and professional
licenses. Thereafter, focus subsequent research on
those states, professions, and organizations with
which the expert is affiliated.
It is sometimes possible to do a national
search for an expert’s disciplinary history on an
occupation-by-occupation basis. For instance, for
medical doctors, search the Federation of State
Medical Board’s site. It should be noted, however,
12/15/09 4:52:06 PM
 that some disciplinary actions are purged after a
given period of time (e.g., 10 years).
Finally, IDEX provides an effective means to
gather and share information about expert wit-
nesses, including disciplinary actions. The IDEX
database is massive (with over one million records
related to tens of thousands of experts) and is con-
stantly growing. In addition to tracking down dis-
Because many ciplinary actions and sanctions information, IDEX
is an excellent source of an expert’s prior casework,
news databases resumes, testimony transcripts, publications, and
Daubert challenges.
now include (Possible Sites: www.Idex.com; www.choice
point.com; www.healthgrades.com; www.knowx.
com; www.santacruzpl.org/readyref/files/time/
transcripts drdiscpl.shtml (California only); www.fsmb.org;
www.healthcarechoices.org/profile.htm; www.
of interviews, mbc.ca.gov/Lookup.htm)
they are a
Uncovering the Expert’s Prior Statements
valuable source Uncovering an expert’s prior opinions or state-
ments on a topic is an essential component
to search of thorough vetting. But a researcher should
look beyond just opinions expressed in litiga-
through to find tion. Statements made outside of litigation can
sometimes be very damaging to an expert and,
therefore, should not be overlooked.
an expert’s prior
Publications
statements. Many medical and technical experts write articles
for journals (or are cited in articles written by others
for such journals). In fact, it is oftentimes because
these individuals are published in journals that
they are considered to be experts. So, any research-
er who is gathering background on an expert must
be sure to search through technical journals to see
what can be retrieved with regard to that expert. In
addition, such a search may serve to double-check
the list of authored works submitted by the expert
during the course of formal discovery—a practice
that proved revealing a couple of years ago with
respect to a prominent mold expert.4
(Possible Sites: www.nlm.nih.gov/databases/
databases_medline.html; www.lexis.com (to access
the Elsevier Full Text Journals database))
News
Because many news databases now include tran-
scripts of interviews, they are a valuable source to
search through to find an expert’s prior statements.
Consider the prominent handwriting expert who
gave several interviews to the press in which he
stated that he was 99.9 percent certain the John
Mark Karr wrote the ransom note found in con-
nection with the JonBenet Ramsey murder—and
was so certain that “he was staking a large part of
his reputation on his judgment.”5 This damaging
claim (remember, Mr. Karr was never charged
with the crime) cannot be found in the “usual”
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 8
places (i.e., case opinions, trial transcripts, etc.); it
is only found through a search of news databases.
Although some free news databases exist (e.g.,
from Google), their limited coverage may war-
rant using a commercial source. For instance, the
LexisNexis “Mega News, All” database contains
more than 22,000 different news publications,
including not only newspaper and magazine arti-
cles but also transcripts from television and radio
shows, articles from specialized legal news sources,
and other sources (e.g., blogs).
(Possible Sites: newslink.org; www.latimes.com;
news.google.com; news.search.yahoo.com)
Congressional Information
Because some prominent experts appear before
Congress and testify or do work for Congressional
Committees, information about them can be uncov-
ered through a search of congressional records and
documents. Other experts, along with other pro-
fessionals and scientists, sign letters that are sent
to Congress regarding certain issues. Insights as to
an expert’s political position, even if not directly
relevant to the issues involved in the pending law-
suit, may be of tactical value. To search full-text
through state and federal government documents
(simultaneously or separately), consider usa.gov.
(Possible Sites: www.thomas.loc.gov; www.usa.gov)
Patents
For experts who are engineers, scientists, or the
like, a patent search might prove fruitful and
yield damaging statements. A telling example
comes from one of the ballot-contest lawsuits
that was heard in Leon County, Florida, in 2000.
During the trial, then-Governor Bush’s attorneys
called to the stand an expert on voting machines
who had helped design the punch card voting
devices used in many of the contested counties
in Florida. The expert defended the use of the
punch card voting devices and deemed them reli-
able. However, during cross-examination, Gore’s
attorney confronted the expert with a patent he
had obtained on October 27, 1981, for a “new
and improved” version of the voting devices used
in the Florida election. In the “Background of
the Invention” portion of the patent application,
the expert had made several potentially damag-
ing statements, such as: “Incompletely punched
cards can cause serious errors to occur in data
processing operations utilizing such cards.”6 Gore’s
attorney used the expert’s own words to support
Gore’s position as to the unreliability of the vot-
ing machines in question. As reported by the New
York Times: “The effect of [the expert’s] testimony
was written plain in the strained facial expressions
of the Bush legal team.”7
(Possible Sites: www.uspto.gov)
12/15/09 4:52:06 PM
 Blogs
Many experts post their opinions on blogs. Such
blogs are often linked from an expert’s website or
can be found through search engines. Importantly,
one can also be alerted to new blog postings by
subscribing to the Atom or RSS feeds found on
the blog.
Because of the ease of posting entries, blogs are
often casual in nature, quickly written, and rarely
peer reviewed. As such, a researcher can some-
times find statements that are detrimental to the
authoring expert, and such unfiltered opinions
can lead to strong cross-examination material.
Also, comments posted by others to an expert’s
blog entry may provide guideposts for attacking
that expert’s testimony.
(Possible Sites: www.expertwitnessblog.
com; http://blogsearch.google.com; http://blawg
search.justia.com)
Discussion Board Posts
It may be possible to find an expert’s opinion on a
particular subject by searching postings on discus-
sion boards (otherwise called “Usenet” postings).
For instance, by clicking on the “Groups” tab on
the Google home page, one can access more than
one billion messages dating back to 1981. Using
the “advanced search” button, searches can be run
by the expert’s name, the subject matter, or the
expert’s email address. Keep in mind, however,
that many postings are made anonymously or with
pseudonyms, and that people often change their
email addresses.
(Possible Sites: www.groups.google.com; www.
groups.yahoo.com)
Podcasts
Podcasts are the latest phenomenon in delivering
audio content to listeners to share one’s expertise
or opinions. Think of it like “radio delivered
via the Internet.” Instead of listening to a live
broadcast, however, listeners download audio files
to their computers to play back when it is conve-
nient for them. Like other kinds of content avail-
able on the Internet, podcasts cover a wide array
of topics and are relatively easy to create. Most
podcasts are saved in the MP3 format, allowing
maximum portability and flexibility in playing
back those files.
Two ways to find podcasts are to use an
online directory of podcasts, such as Ipodder.org,
Theblogsoflaw.com, or Blawg.org (click on the
“Podcast” category), or to use a search engine and
add the word “podcast” to your keyword search.
In fact, a recent search of Google for “podcasts”
retrieved nearly 9 million results.
(Possible Sites: www.JurisPro.com; www.
podcastalley.com; www:blawg.org; www.apple.
com/itunes)
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 9
Conclusion
It is more than just good practice to research
experts thoroughly—including their credentials
and prior non-case statements—it has become
a responsibility. First of all, judges demand it.
Consider the case of the attorneys in Chicago
who discovered, after the jury had rendered
its verdict, that the opposing expert had falsi-
fied his credentials (an engineering degree from
West Point). The judge rejected those attorneys’
request for a new trial and reminded them of
their duty to conduct thorough research: “Many
attorneys take for granted that when an expert
provides a CV that everything in the document
is true. However, it is plaintiff’s job in preparing a
case for trial to learn as much as possible about an
adverse party’s expert witness, including verifying
his qualifications as an expert.”8
Moreover, failure to perform adequate research
may have malpractice implications. For instance,
a California court of appeals recently ruled that an
attorney has certain responsibilities with respect
to the retention and handling of experts, and that
the failure to adequately discharge those respon-
sibilities could subject that attorney to a claim of
professional negligence.9
“Online Resources to Evaluate Experts’
Credentials and Prior Statements,” by Michael
Brennan, David Dilenschneider, Myles Levin,
and Jim Robinson, 2009, Expert Witnesses,
2009 Annual Review, pp. 1–4 & 5. © 2009
by the American Bar Association. Reproduced
with permission. All rights reserved.
Endnotes
1. See In re Vioxx Prods. Liab. Litig., 489 F. Supp. 2d 587,
591–92 (E.D. La. 2007).
2. Honesty the best policy on resumes, Denver Post, Feb. 26, 2006.
3. David Hasemyer, Surgeon’s credentials as witness scrutinized,
San Diego Union-Tribune, Dec. 28, 2005 (reporting that an
expert was being investigated for implying that he was currently
certified by the American Board of Surgery, even though his
certification had lapsed more than a dozen years earlier).
4. Daniel Fisher, Why sketchy science doesn’t stop medical
“experts,” Forbes, Apr. 11, 2005 (despite an expert’s claim
to have authored “hundreds” of scholarly articles, a search
through the PubMed database turned up fewer than 70).
5. Lou Kilzer, Writing analyst was disqualified; Judge chal-
lenged expertise of man linking note to Karr, Rocky Mountain
News, Aug. 23, 2006.
6. Pat. No. 4,297,566.
7. Contesting the Vote: The Scene, N.Y. Times, Dec. 4, 2000.
8. Steven P. Garmisa, Expert’s credentials questioned too late
to trigger new trial, Chi. Daily L. Bull., Oct. 6, 2004.
9. Forensis Group, Inc. v. Frantz, Townsend & Foldenauer,
130 Cal. App. 4th 14 (Cal. App. 2005).
12/15/09 4:52:07 PM
 Admitting
Public
Records
Continued from page 1
Petra L. Justice
Petra L. Justice is an
associate with Banker
Lopez Gassler P.A. in
Tampa, Florida. She
practices in the area of
products liability.
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 10
the authentication of public records and is broken
into two categories: writings authorized by law to
be filed in public offices and writings purported to
be public records. If a writing falls into either cat-
egory, the rule states that it is authenticated as a
public record if it “is from the public office where
items of this nature are kept.”
The first category consists of writings “autho-
rized by law to be recorded or filed and in fact
recorded or filed in a public office.” A writing can
be “authorized by law” through a statute, court
decree, or internal government rule or regulation.2
“Public office” as used in this provision is defined
as federal, state, and local offices and agencies,3
although there is supporting case law that foreign
public offices can also qualify.4 Documents that
fall under this first category include birth and
death certificates, deeds, mortgages, corporate
filings, as well as surveys, court judgments, finger-
print cards, data stored in computers, and micro-
fiche. Either public officials or private individuals
can prepare the documents under this provision,
as long as the documents are authorized by law to
be recorded and are recorded in a public office.5
The second category consists of documents
that are “a purported public record, report, state-
ment, or data compilation in any form.” The term
“purported” simply means that a stamp, seal, or
other customary marking appears on the face of
the document that identifies it as being a public
record.6 The word “public” means that the record
must be kept in a public office or agency, but it
does not require the record be made available for
public access.7
Once an item is shown to fall under one of
these two categories, the proponent must then
establish that the item “is from the public office
where items of this nature are kept.” Since
records admitted under Rule 901(b)(7) are not
self-authenticating—i.e., public custody cannot
be assumed from the face of the document—
extrinsic evidence is necessary to establish that
the item was indeed maintained in a public office
where items of that nature were kept. Courts have
ruled that testimony from the custodian of the
public record,8 circumstantial evidence,9 or judi-
cial notice10 can satisfy this requirement.
Authenticating Copies of Public
Records under Rule 902
Under Rule 902, copies of certain public records
are self-authenticating, and extrinsic evidence of
authenticity as a condition precedent to admis-
sibility is not required. Specifically, 902(4) states
that a certified copy will be self-authenticated if
it is “a document authorized by law to be recorded
or filed and actually recorded or filed in a public
office . . . certified as correct by the custodian or
other person authorized to make the certification,
by certificate complying with paragraph (1), (2),
or (3) of this rule or complying with any Act of
Congress or rule prescribed by the Supreme Court
pursuant to statutory authority.” General docu-
ments from public offices do not qualify under this
provision, because 902(4) extends only to official
records, reports, entries, and documents autho-
rized by law to be recorded and filed and actually
recorded and filed in a public office.
To satisfy the certification requirement of 902(4),
a custodian, or other person authorized to make the
certification, must prepare a certificate stating that
he has custody of the original record and that the
record copy is true and correct.11 The actual cer-
tificate made by the custodian can also qualify as a
public document that is self-authenticating when
it complies with Rule 902(1)—domestic public
documents under seal;12 902(2)—domestic public
documents not under seal;13 or 902(3)—foreign
public documents.14
Attorneys should contact the public office or
agency well in advance of trial to obtain a copy
that is self-authenticating. If a copy cannot be
self-authenticated under Rule 902, the proponent
may still authenticate it by any method prescribed
by the Federal Rules of Civil Procedure, including
serving a request for admission, obtaining a stipu-
lation from opposing counsel, propounding inter-
rogatories, or obtaining an admission of authen-
ticity in deposition or at a pretrial conference.
Using Self-Authenticated Copies of
Public Records
Federal Rule of Evidence 1005 permits the admis-
sion of certified copies of original public records,
so as long as the copy is self-authenticated under
Federal Rule of Evidence 902 or authenticated by
witness testimony. It provides the following:
The contents of an official record, or of a docu-
ment authorized to be recorded or filed and actually
recorded or filed, including data compilations in
any form, if otherwise admissible, may be proved
by copy, certified as correct in accordance with
Rule 902 or testified to be correct by a witness who
has compared it with the original. If a copy which
complies with the foregoing cannot be obtained
by the exercise of reasonable diligence, then other
evidence of the contents may be given.
The purpose behind this rule is to encourage
the use of a certified copy or compared copy in
place of the original. The reason behind this
preference is well articulated in the Advisory
Committee’s Notes to Rule 1005, which state in
part, “[r]emoving [public records] from their usual
place of keeping would be attended by serious
12/15/09 4:52:08 PM
 inconvenience to the public and to the custo-
dian.” Furthermore, removing the original from
its place of keeping could result in loss or damage
to the original document. Only when a certified
or compared copy “cannot be obtained by the
exercise of reasonable diligence” should “other
evidence” of a public record’s contents be used.
As a result of the stated preference for certified
or compared copies, documents admitted under
Rule 1005 receive special treatment over docu-
ments admitted under other Rules of Evidence. For
example, the same policy that permits a certified
copy of a public record to be self-authenticated
under Federal Rule of Evidence 902 also exempts
it from the requirements of the Original Writing
Rule.15 Additionally, the requirements for admit-
ting a duplicate under Federal Rule of Evidence
1003 do not apply to certified and compared copies.
This means that while opponents to admissibility
may introduce evidence that disputes the accuracy
of the original public record, such evidence does
not require the original to be produced.16 The last category, 803(8)(C), exempts factual
Documents that constitute a public record as
prescribed under Rule 1005 include records that
would also be admissible under Rule 901, such
as deeds, mortgages, Internal Revenue Service
forms, officially certified computer data compila-
tions, or any other “document authorized to be
recorded or filed and actually recorded or filed.”
Yet, unlike Rule 901, the “self-authenticating”
provision of Rule 1005 does not require extrinsic
evidence to establish public custody of a record if
a certified copy is used. Practitioners should note,
however, that Rule 1005’s provisions apply only to
the actual record that is filed and maintained by
the public office, not the original document from
which the record is made.17
Other Admissibility Considerations:
Relevancy and Hearsay
Although a document may qualify as an authentic
public record under Rule 901 or an authentic copy
of a public record under Rule 1005, the proponent
must still show that the document is relevant and
falls under a hearsay exception.
For a document to be relevant, it must have a
tendency to prove or disprove a material fact.18 As
a practice point, attorneys may wish to obtain an
admission or a stipulation regarding the record’s
relevance and admissibility prior to trial.
In regards to hearsay, most authentic public
records and copies will be admissible under one
of the three categories listed in the public record
hearsay exception, Federal Rule of Evidence
803(8). The first category, 803(8)(A), exempts
records, reports, statements, or data compilations,
in any form, of public offices or agencies, which
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 11
set forth the activities of the office or agency.
Records encompassed in this first category include
documents prepared for purposes independent of
specific litigation and statistical reports.19
The second category, 803(8)(B), exempts pub-
lic records or reports that set forth matters observed
and reported pursuant to a lawfully imposed duty,
with the exclusion of matters observed by police
officers and other law enforcement personnel
when offered against defendants in criminal cases.
As explained in a Senate Committee on the
Judiciary Report, this exclusion is based upon the
reasoning that “observations by police officials at
the scene of the crime or the apprehension of the
defendant are not as reliable as observations by
public officials in other cases because of the adver-
sarial nature of the confrontation between the
police and the defendant in criminal cases.” This
exclusion applies only to police records or reports
offered by the prosecution and not to criminal
defendants or civil parties.20
findings of an investigation made pursuant to law-
ful authority in all civil actions and when offered
against the government in criminal cases, unless
the sources of information or other circumstances
indicate a lack of trustworthiness. The Advisory
Committee’s Notes to 803(8)(C) list various
evaluative reports that are admissible by federal
statute; however, case law broadly interprets “fac-
tual findings” to include reports that state “not
only what happened, but how it happened, why it
happened, and who caused it to happen.”21
Any record admitted under 803(8), regardless
of the category, is presumed to be trustworthy; any
party opposing the admission of a public record
must prove its untrustworthiness.22 The rationale
behind this rule is based upon the assumption that
public officers generally fulfill their duty to receive
and maintain legitimate public records and that
they lack motivation to falsify. Furthermore, this
exception prevents public officials from having to
appear in court to testify about matters that have
been accurately recorded. It should be noted,
however, that this exception is only a substitute
for the appearance of the public official who made
the record. Thus, even though a document may
qualify as a public record, it may not overcome
a hearsay objection unless the document relates
to an event about which the pubic officer could
testify.23
Conclusion
Attorneys should analyze each case to determine
where they can use public records to prove facts
at trial. With careful preparation and application
of the rules governing their admissibility, these
12/15/09 4:52:08 PM
 records can be a powerful evidentiary tool in any
trial attorney’s arsenal.
Endnotes
1. Although this article focuses on admitting public records
under the Federal Rules of Evidence, practitioners may also
wish to review other admissibility considerations provided
in Federal Rule of Civil Procedure 44 and Federal Rule of
Criminal Procedure 27.
2. Air Land Forwarders, Inc. v. U.S., 38 Fed. Cl. 547 (Fed.
Cl. 1997).
3. See, e.g., U.S. v. Hernandez-Herrera, 952 F.2d 342 (10th
Cir. 1991); Birdville Indep. Sch. Dist. v. Hurst Assoc., 806 F.
Supp. 122 (N.D. Tex. 1992).
4. See, e.g., Melridge, Inc. v. Heublin, 125 B.R. 825 (D.C.
Or. 1991); N.Y. Life Ins. Co. v. Aronson, 38 F. Supp. 687 (D.C.
Pa. 1941).
5. See, e.g., Air Land Forwarders, Inc. v. U.S., 38 Fed. Cl.
547 (Fed. Cl. 1997).
6. See, e.g., Barber v. State, 757 S.W.2d 83 (Tex. Ct. App.
1988).
7. People v. Deskins, 904 P.2d 1358 (Colo. Ct. App. 1995),
aff’d in part and rev’d in part on other grounds, 927 P.2d 368.
8. U.S. v. C. Gulf Lines, Inc., 575 F. Supp. 1430 (E.D. La.
1983).
9. U.S. v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989)
(testimony of witness with knowledge who was not testifying
as custodian of the document “provided circumstantial evi-
dence to support the conclusion that the document was an
official record.”).
10. Maroon v. Immig. & Naturalization Serv., 364 F.2d
982 (8th Cir. 1966) (“the Clerk of the United States District
Court, who is the ‘keeper’ of the records and seal of his court,
is necessarily the ‘legal custodian’ of such records.”).
11. See, e.g., U.S. v. Moore, 555 F.2d 658, 661 (8th Cir.
1977) (“the certificate of the United States Postal Service,
under seal and with a signature purporting to be an execution,
constitutes a self-authenticated document needing no extrin-
sic evidence to sustain admissibility.”).
12. Rule 902(1) states that domestic public documents
are self-authenticated when the document bears a seal of “the
United States, or of any State, district, Commonwealth, terri-
Message from addition to your trial notebook.
the Chairs Michael Brennan, David Dilenschneider, Myles
Continued from page 2 Levin, and Jim Robinson’s “Online Resources
to Evaluate Experts’ Credentials and Prior
Statements” furnishes a blueprint for us all to be
more efficient with our pretrial investigations of
experts against the backdrop of a case in which
the defense verdict was stricken due to problems
with the defense expert’s actual credentials.
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 12
tory, or insular possession thereof, or the Panama Canal Zone,
or the Trust Territory of the Pacific Islands, or of a political
subdivision, department, officer, or agency thereof, and a sig-
nature purporting to be an attestation or execution.”
13. Rule 902(2) provides that domestic documents not
under seal can still be self-authenticated if a public officer, in
his official capacity of any entity included in 902(1), certifies
on the document by signature under seal that he has such
official capacity and that the signature is genuine.
14. Rule 902(3) states that foreign public documents can
be self-authenticated if an official, authorized by the laws of a
foreign country to make the execution or attestation of a docu-
ment, executes or attests to the document and the document
is “accompanied by a final certification as to the genuineness
of the signature and official position (A) of the executing or
attesting person, or (B) of any foreign official whose certificate
of genuineness of signature and official position relates to
the execution or attestation or is in a chain of certificates of
genuineness of signature and official position relating to the
execution or attestation.”
15. Federal Rule of Evidence 1002 generally provides that
to prove the content of a document, the original document
is required.
16. Under Rule 1003, “A duplicate is admissible to the
same extent as an original unless (1) a genuine question is
raised as to the authenticity of the original or (2) in the cir-
cumstances it would be unfair to admit the duplicate in lieu
of the original.”
17. Amoco Prod. Co. v. U.S., 619 F.2d 1383 (10th Cir.
1980). In Amoco, the Tenth Circuit found that the original
deed, which was returned to the parties after it was recorded,
was not a public record under Rule 1005 because it was not
the specific document filed with and maintained by the public
office.
18. See generally Fed. R. Evid. 401.
19. U.S. v. Mena, 863 F.2d 1522 (11th Cir. 1989).
20. U.S. v. Smith, 521 F.2d 957 (D.C. Cir. 1975).
21. Bridgeway Corp. v. Citibank, 201 F.3d 134, 143 (2d
Cir. 2000).
22. Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300 (5th
Cir. 1991).
23. Yaich v. U.S., 283 F.2d 613 (9th Cir. 1960).
In short, this edition of Proof is one to read and
retain. Contact any one of us, or any of the com-
mittee’s subcommittee cochairs if you’d like to get
more involved in the committee’s activities. We
look forward to hearing from you.
Christina L. Dixon
John H. McDowell Jr.
David Wolfsohn
12/15/09 4:52:09 PM
 of what constitutes an inadvertent waiver under
Rule 502(b)(2). Moreover, while courts now
appear disinclined to find waivers, the rule may
have actually increased the pressure to complete
discovery unreasonably quickly.
Rule 502(a): Limiting the Dreaded
Subject-Matter Waiver
Rule 502(a) applies to disclosures made in a fed-
eral proceeding or to a federal office or agency,
and provides that disclosure of an attorney-client
privileged communication or attorney work prod-
uct results in the waiver of undisclosed material
only if (1) the waiver is intentional; (2) the other
communication or information concerns the same
subject matter as that which was disclosed; and
(3) the disclosed and undisclosed materials “ought
in fairness to be considered together.”2
In other words, Rule 502(a) creates an unequiv-
ocal safe haven when a waiver is inadvertent. In
such cases, the scope of the waiver is limited to
the disclosed document. Even if the disclosure
were intentional, the disclosure waives the privi-
lege as to other undisclosed communications or
information only when they concern the same
subject matter and if fairness dictates that they
be considered together. Not only can parties
therefore choose to produce privileged materi-
als without fear of a general waiver, but even
the daunting threat of a subject-matter waiver is
limited. Of course, what parties still cannot do is
try to use the privilege (or work-product protec-
tion) as both a sword and a shield, producing only
those documents that might be favorable to their
arguments while withholding those that would be
harmful. In such cases, a subject-matter waiver
will likely be found.
Rule 502(b): “Reasonable Steps” to
Avoid Inadvertent Waivers
Rule 502(b) picks up where Rule 502(a) leaves off:
It addresses whether an inadvertent disclosure of
attorney-client privileged or work-product-protected
material constitutes a waiver with respect to the
disclosed material. It is important to note that in
such situations, pursuant to Rule 502(a), there is no
threat of a subject-matter waiver. All that is at issue
is the documents that were actually produced.
Under Rule 502(b), an inadvertent disclosure
does not waive the attorney-client privilege or
work-product protection if the holder of the privi-
lege took reasonable steps to prevent disclosure and
also promptly took reasonable steps to rectify the
error.3 Therefore, the key to determining whether a
disclosure operates as a waiver is in the interpreta-
tion of what constitutes “reasonable steps.”
District courts have taken varying approaches
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 13
to interpreting the “reasonable steps” provision of
Rule 502(b)(2). Some courts apply the five-factor
Rule of
common law test that existed before the imple- Evidence 502
mentation of the new rule, while others strictly Continued from page 1
apply the three requirements of Rule 502(b).4
The former approach was contemplated by the
drafters of Rule 502 as being permissible,5 yet the
fact that courts have adopted it simply highlights
how little Rule 502(b) has changed the mechan-
ics of the inadvertent-waiver analysis. It is still a
case-by-case review with few guarantees for liti-
gants. Notably, most courts that have considered
inadvertent waivers after the implementation of
Rule 502(b) have summarily concluded that the
steps taken were either reasonable or not with
little discussion that can serve as precedent upon
which producing parties can rely.
The five common law factors that have been
included in courts’ “reasonable steps” analysis
are: (1) the reasonableness of the precautions
taken to prevent inadvertent disclosure in view
of the extent of the documents; (2) the number
of inadvertent disclosures; (3) the extent of the
disclosure; (4) the delay in and measures taken to
rectify the disclosure; and (5) whether overriding
interests of justice would or would not be served
by relieving the party of its errors.6
Other courts, however, simply look at the three
requirements of the rule: (1) whether the disclo-
sure was inadvertent under 502(b)(1); (2) the
reasonableness of the precautions taken to avoid
disclosure under 502(b)(2); and (3) the prompt-
ness of the efforts to rectify the disclosure under
502(b)(3).7
Under either test, courts have found such
measures as the following to constitute reasonable
steps: the use of reliable vendors and sophisticated William O. Reckler
software for electronic document productions;
the use of specific and appropriate search terms
to identify attorney-client communications; and
the use of properly supervised contract attorneys
or paralegals to conduct the review.8 Evidence on
the face of the documents themselves that the
producing party did not intend them to be pro-
duced also helps courts find that reasonable steps
were taken to prevent their disclosure.9 Susan M. Ambler
The Advisory Committee also enumerated
additional factors that courts have subsequently William O. Reckler is a
considered in determining whether reasonable senior litigation associ-
steps were taken to prevent disclosure. Those ate in Latham & Watkins
LLP’s New York office.
include the number of documents to be reviewed,
He is a member of the
the time constraints for production, the use of firm’s White Collar and
advanced analytical software applications and Government Investigations
linguistic tools, and the implementation of an practice group. Susan M.
efficient system of records management before the Ambler is a litigation asso-
litigation commenced.10 ciate in Latham & Watkins
While the case law does not provide a single LLP’s New York office.
12/15/09 4:52:10 PM
 model for an effective document review that
would constitute “reasonable steps,” one thing is
clear—in the aftermath of Rule 502, courts are
disinclined to find waiver. For example, in a case
where all of the first four common law factors
cut in favor of waiver, a court still found there
Rule 502(d) had been no subject-matter waiver because the
“interests of justice” so required.11 In another case,
and (e) allow no waiver was found even though the production
totaled only 7,000 pages and 5 percent of those
parties to craft were privileged documents that were inadverten-
tly produced.12 In an opinion that does not even
contain an analysis of the reasonable steps taken
the particular
by the disclosing party, the Southern District of
Indiana wrote that it was not necessary to “double
terms for or triple-check[] all disclosures” because “this type
of expensive, painstaking review is precisely what
discovery and [the new rule is] designed to avoid.”13
In fact, courts thus far appear willing to find
disclosure and a waiver only under extreme circumstances. The
Southern District of New York has found a waiver
to then have where there was no evidence that the defendant
“took any precautions to weed out any possibly privi-
that agreement leged documents.”14 And in Relion, Inc. v. Hydra
Cell Fuel Corp., a district court in Oregon found
entered as an an inadvertent waiver but only by holding that the
producing party was required to take “all reasonable
order of means” to prevent disclosure.15 That is clearly not
the standard under Rule 502, and the case appears
the court. to be an outlier. In fact, the Northern District of
Illinois responded to Relion, specifically disagreeing
with its holding and stating that only “reasonable
steps” need be taken, not “all reasonable means.”16
Rule 502(d) and (e) Orders
Under Rule 502(d), a federal court may order
that the attorney-client privilege or work-product
protection is not waived by disclosure connected
with litigation pending before the court.17 That
order then precludes the disclosure from serving as
a waiver in any other federal or state proceeding.
Rule 502(e) provides that agreements between
the parties to a litigation regarding the effect of
disclosures can become binding on nonparties if
incorporated in a court order.18
Rule 502(d) and (e) may be the most innova-
tive and important aspect of the new rule. These
subsections allow parties to craft the particular
terms for discovery and disclosure and then to
have that agreement entered as an order of the
court. Once sanctioned by a federal judge, 502(d)
orders are binding on all other courts, both fed-
eral and state, and on third parties, making them
extremely powerful tools. A recent panel of Rule
502 reporters and federal judges stated that the
relevant factors a court will consider in decid-
ing whether to enter a 502(d) order are: (1) the
amount of electronic information to be produced;
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 14
(2) the estimated expense for a privilege review;
(3) the risk of the use of protected information in
other proceedings; (4) the degree to which dis-
covery can be expedited by the entry of a 502(d)
order; and (5) whether the parties can agree on
the terms and language of the order.19
The fifth factor cited by the panel may prove
to be the most difficult to satisfy, as there is a
great deal of flexibility in terms of drafting 502(e)
agreements. Given the broad scope of FRE 502,
Rule 502(e) agreements and Rule 502(d) orders
can be drafted creatively to meet the needs of a
given litigation. Those needs, of course, may vary
for the different parties.
For example, a Rule 502 order can cover a
specific document, inadvertently produced docu-
ments, or all documents that are responsive to a
request. Moreover, while a Rule 502 order may be
limited to protecting privileged documents, it can
be expanded to the full scope of the rule to protect
work-product and non-documentary information
(e.g., deposition testimony). In addition, the parties
can decide who has the burden of identifying inad-
vertently produced documents. They can choose to
create an obligation for the producing party to sub-
sequently identify privileged documents that have
been inadvertently produced, or they may create
an obligation for the receiving party to identify
potentially privileged materials. Finally, they may
then agree on whether the receiving party must
return the privileged document or whether there is
a promptness requirement for the disclosing party
to demand its return.
There are several limitations on Rule 502(d)
and (e) orders and agreements. First, agreements
among the parties are binding on nonparties only
if adopted by the court. Parties are free to negoti-
ate Rule 502 agreements amongst themselves,
but they will only be enforceable as between the
parties to the agreement. That means that such
agreements are of limited value in the context of
government investigations, even if the investigat-
ing entity is willing to enter into one. In such
situations, there is typically no litigation “pending
before the court” under which a court could issue
a stipulated order.20 While we have yet to identify
any case in which it has been done, in theory it
may be possible to orchestrate a litigation either
by moving to quash a subpoena or by agreeing in
advance that the government agency will com-
mence contempt proceedings. Of course, it is
unclear whether any investigator or prosecutor
would enter into such a prearranged and, there-
fore, somewhat artificial litigation.
More importantly, while a 502(d) order may
protect against a waiver of the attorney-client
privilege or the work-product protection, it can-
not protect against the litigation advantage that
12/15/09 4:52:10 PM
 an opposing party may gain from seeing such
materials. While a party may have to return a
privileged document that was inadvertently pro-
duced, it will still have the benefit of having seen
it in the first place. Similarly, a party may gain a
business advantage if sensitive business informa-
tion is produced unnecessarily.
Rule 502(d) orders may actually increase the
danger of such inadvertent productions to the
extent that they are used to justify tighter dead-
lines. For example, if a court were to issue an
order that there would be no waiver with respect
to any privileged or work-product documents
produced regardless of whether the disclosing
party takes reasonable steps to avoid production
of such materials, it might then set a very tight
deadline for discovery. While that would make
it tempting—or perhaps necessary—to produce
documents before conducting a thorough review,
doing so creates both litigation and business dis-
advantages for the client.
In such situations, the same “reasonable steps”
used to avoid an inadvertent waiver under Rule
502(b) should be used to rapidly identify the most
sensitive privileged or nonresponsive documents
to withhold under even the most protective Rule
502(d) order. Given the increasing sophistication
of analytic software and the prevalence of lower-
cost contract attorneys and paralegals, there is no
excuse for not conducting a targeted review under
even the tightest court-imposed deadlines.
The net effect is therefore that Rule 502(d)
may be more significant for the peace of mind
that it produces in terms of the risks of produc-
ing privileged communications or work-product
documents than for the actual impact that it has
on the document review being conducted. And
even the safety blanket that it provides may be
more necessary given that it creates a justification
for shorter discovery schedules.
14. Fed. R. Evid. 1002, 1004.
15. Fed. R. Evid. 1004.
16. In view of these changes in technology, the Federal
Rules of Civil Procedure were amended in December 2006
“to address issues raised by difficulties in locating, retrieving,
and providing discovery of some information.” Fed. R. Civ. P.
26(b)(2). Advisory Committee’s Notes.
17. Lorraine, 241 F.R.D. at 538.
18. Fed. R. Evid. 1001. Advisory Committee’s Notes.
19. Lorraine, 241 F.R.D. at 578.
20. 104 Ark. App. 273, — S.W.3d —, 2009 WL 195744
(Ark. App. Jan. 28, 2009).
21. “The original is not required, and other evidence of the
contents of a writing, recording, or photograph is admissible
if: . . . [a]ll originals are lost or have been destroyed, unless
the proponent lost or destroyed them in bad faith.” Ark. R.
Evid. 1004(1).
Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association
931735_ProofCRXfa09.indd 15
Endnotes
1. Fed. R. Evid. 502 Advisory Committee Note (“The rule
seeks to provide a predictable, uniform set of standards under
which parties can determine the consequences of a disclosure
of a communication or information covered by the attorney-
client privilege or work-product protection.”).
2. Fed. R. Evid. 502(a).
3. Fed. R. Evid. 502(b).
4. Compare Rhoads Indus. Inc. v. Bldg. Materials Corp.,
254 F.R.D. 216, 223–27 (E.D. Pa. 2008) with Laethem Equip.
Co. v. Deere & Co., No. 2:05-CV-10113, 2008 WL 4997932,
at *7 (E.D. Mich. Nov. 21, 2008).
5. Fed. R. Evid. 502 Advisory Committee Note (“The rule
does not explicitly codify [the five-factor common law] test,
because it is really a set of non-determinative guidelines that
vary from case to case. The case is flexible enough to consider
any of those listed factors.”).
6. See Rhoads Indus., 254 F.R.D. at 223–27; Heriot v. Byrne,
257 F.R.D. 645, 658–59 (N.D. Ill. 2009).
7. See, e.g., Laethem Equip. Co., No. 2:05-CV-10113, 2008
WL 4997932, at *7.
8. See, e.g., Rhoads Indus., 254 F.R.D. at 224; Coburn
Group, LLC v. Whitecap Advisors LLC, No. 07 C 2448, 2009
WL 2424079, at *4 (N.D. Ill. Aug. 7, 2009).
9. See, e.g., B-Y Water District v. City of Yankton, No.
CIV.07-4142, 2008 WL 5188837, at *2 (D.S.D. Dec. 10,
2008) (no waiver where document was redacted and unre-
dacted version was inadvertently produced); Reckley v. City
of Springfield, No. 3:05-cv-248, 2008 WL 5234356, at *3
(S.D. Ohio Dec. 12, 2008) (no waiver where “at least some
of the emails . . . have ‘ATTORNEY-CLIENT PRIVILEGED’
endorsed on them”).
10. Fed. R. Evid. 502 Advisory Committee Note; see also
Rhoads Indus., 254 F.R.D. at 222.
11. Rhoads Indus., 254 F.R.D. at 226–27.
12. Heriot, 257 F.R.D. at 659.
13. Alcon Mfg., Ltd. v. Apotex Inc., No. 1:06-cv-1642,
2008 WL 5070465, at *6 (S.D. Ind. Nov. 26, 2008).
14. SEC v. Badian, No. 06 Civ. 2621, 2009 WL 222783, at
*2 (S.D.N.Y. Jan. 26, 2009).
15. No. CV06-607-HU, 2008 WL 5122828, at *2 (D. Or.
Dec. 4, 2008).
16. Coburn Group, 2009 WL 2424079, at *5–6.
17. Fed. R. Evid. 502(d).
18. Fed. R. Evid. 502(e).
19. Hon. Victor Marrero, Hon. Cathy Seibel, Prof. Daniel
J. Capra, Gregory P. Joseph, Esq., Federal Bar Council’s
Program Committee Presents: Federal Rules Annual Update
(Sept. 17, 2009).
20. See Fed. R. Evid. 502(d).
22. Laughner v. State, 769 N.E.2d 1147 (Ind. Ct. App. Satisfying the
2002), abrogated on other grounds by Fajardo v. State, 859
N.E.2d 1201 (Ind. 2007). Best Evidence
23. Id. at 1159.
24. 14 Am. Jur. Proof of Facts 2d 173 § 14 (1977) (cit-
Rule
ing State v. Springer, 283 N.C. 627, 197 S.E.2d 530 (N.C. Continued from page 5
1973)).
25. U.S. v. Bennett, 363 F.3d 947 (2004).
26. Data stored in a GPS device may be downloaded and
printed using a Graphic Information System (GIS) software
application. See State v. Jackson, 150 Wash.2d 251, 76 P.3d
217, 221 (2003); State v. Pirsig, 670 N.W.2d 610, 613 (Minn.
Ct. App. 2003); People v. Sullivan, 53 P.3d 1181, 1184 (Colo.
Ct. App. 2002).
27. Bennett, 363 F.3d at 952–53.
12/15/09 4:52:11 PM
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Published in Proof, Volume 18, Number 1, Fall 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or
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consent of the American Bar Association

931735_ProofCRXfa09.indd 16 12/15/09 4:52:14 PM