1. THE DIGITAL AGE
• Admissibility of digital evidence:
The 2003 Louisiana Legislature passed Act 1135 amending the provisions of the Louisiana Code of Evidence Article 1001 (3) to provide that digital evidence from palm pilots, the blackberry, e-mail, and related evidence is to be treated as original for evidentiary purposes.
This and similar provisions of the Code of Evidence (e.g. Art. 1003.1) fail to recognize the potential for abuse of digital evidence. The problem with e-mail and any digital evidence is that it may be deleted, altered or preserved incorrectly. There is a presumption of admissibility of electronic duplications in Article 1003.1 by providing “a duplicate may be deemed inadmissable or excluded solely because it is in electronic format”, as will be seen from the following, this is a problem.
We have all heard of there problems in several high profile cases, such as the Enron Case where e-mail evidence was not properly maintained. Other cases of e-mail being preserved improperly or subject to deletion is the subject of inquiries and prosecution for fraud or obstruction of justice. I know I need not cite you to the various corporate fraud cases pending where evidence in digital storage facilities has been altered or improperly maintained. Suffice to say that the full potential for abuse of digital evidence is only now being recognized.
The articles on digital evidence presume that the digital evidence can be clearly identifiable as the original when in fact it is seldom that digital evidence is not changed to the extent that it is automatically re-formatted on the recipient machine. This presentation is not intended to be a technical presentation, but is intended to be one that focuses on problems with digital evidence. Therefore, I will refrain from extensive discussion of technical issues that relate to how evidence on digital formats can be so easily and improperly stored, improperly reproduced, transmitted, deleted modified and in many cases intentionally altered. Instead, this paper will focus on practical legal problems which we have recently encountered in cases.
2. PHOTOGRAPHIC EVIDENCE MAINTAINED IN DIGITAL FORMATS
• The abuse of digital photographs & videos:
Without any doubt everyone is beginning to utilize digital cameras. In reproducing information for digital photographs, it is often the case that the photographs are “cropped” to delete information which the photographer wishes not to have shown, or the quality of the photograph is enhanced with the use of computer programs.
Digital photographs include digital videotapes. Common uses and applications of digital video tapes are the result of defense surveillance videos and plaintiff day in the life productions. When considered as a tool for presenting the plaintiffs case, everyone assumes that the information presented will be in the light most favorable to the plaintiff. Any information which would not be helpful is usually intentionally kept out of the production and therefore is not available for consideration by the jury, the judge or in settlement scenarios. It has become routine however for those who might be involved in considering a day in the life video to ask for the original, unaltered, unmodified or unedited version of the video tape.
The consideration of surveillance video evidence is also potentially problematical because the surveillance evidence will often be prepared by the surveillance investigator in a format that is most favorable to the defendants. The person engaging the surveillance investigator asks for information that would be helpful to the defendant and although the investigator should be taking film of all of the activities of a plaintiff, it is common that the surveillance investigator would fail to provide all of the data and would fail to completely present the information.
An example of selective filming creating an intentionally edited video is seen in the surveillance film which would run for approximately one hour although the underlying data covers several hours.
In our recent case of Edward Charles Washington and Travis Parker versus Aetna Life Insurance d/b/a One Canal Place, Schindler Elevator Corporation, Corporate Realty Advisors, and Zurich Insurance Company, Docket Number 01-9541-C of the Civil District Court of the City of New Orleans, all of the issues with respect to the potential modification of the video tape surveillance evidence was presented to us for defending. The surveillance videotapes of our client taken over more than four (4) hours time, was demonstrated on a tape that lasted only one (1) hour. The surveillance investigator contended that the one hour of information presented showed all he could film during the four hours time because that was the only time he could see our client. The investigator’s contention was that our client could not be seen for filming at times that the tape was not running was obviously incorrect from watching the scenes on the tape and the clock.
Moreover, when questioned about the information not on the tape, the investigator testified in response to questions of the defense counsel that whenever our client was not visible on the videotape, our client was not seen to be holding his neck or his back as if he were in pain.
On cross examination the investigator was not able to account for the missing scenes and his employer had failed to practice a policy of properly maintaining digital video evidence to prevent potential modification. The employer for the investigator did not utilize a system to preserve the chain of custody of the evidence and the integrity of the evidence. The digital video evidence was not logged into a data base, it was not immediately write protected, there was no chain of custody for the information that could be supported by recorder maintenance logs and there was no safe keeping of the evidence demonstrated by the investigator.
3. THE CODE OF EVIDENCE IN ARTICLE 401 AND 403 SETS OUT STANDARDS FOR THAT WHICH MAY BE DEEMED RELEVANT EVIDENCE:
• Article 401 states:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
• Article 403 states:
“All relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undo delay or waste of time.”
The issues with respect to whether a piece of evidence tends to prove or disprove a material fact at issue and whether the evidence is unfairly prejudicial or presents the danger of confusion or misleading the jury is of particular importance when considering surveillance evidence. The potential for abuse of surveillance evidence begins with the potential for videotape surveillance evidence not “accurately depicting that which it purports to represent”.
The fundamental cases of Fryson v. Dupre Transport, Inc., 798 So.2d 1012, 2000-0859 (La. App. 4 Cir.2001); State v. Sartain, 746 So.2d 837 (La. App. 4 Cir.1999), rehearing denied, writ denied 769 So.2d 4; Ibieta v. Star Casino, Inc., 720 So.2d 143 (La. App. 4 Cir.1998), writ denied, 735 So.2d 635 (La. 1999) and similar cases all speak to the issue of whether or not that which is presented on the video tape “accurately depicts that which it purports to represent” as fundamental before the video tape evidence could be considered for admissibility. In the Washington case, for instance no one was able to identify the plaintiffs as being persons shown on the videotape. There were similarities between the plaintiff and other employees of the company for which the plaintiff worked and the similarities precluded anyone from clearly saying that the plaintiff was the person
shown in the tape. As a result, one of the basic problems presented with videotape evidence was that the videotape evidence could not be relied upon as clearly indicative of the persons who the defendants contended was shown in the videotape.
• THE JUDGE’S DISCRETION:
The admissibility of any videotape is within the discretion of the trial judge. Olivier v. LeJeune, 95-0053 (La 2/28/96), 668 So2d 347, 351; Constans v. Choctaw Transport, Inc., 97-0863, (La. App. 4 Cir. 12/23/97), 712 So 2d 885, 901. There is no doubt that the admissibility of any videotape is an issue determined on a case-by-case basis depending on the individual facts and circumstances of each case. In addition to the fundamental issue of whether the videotape “accurately depicts what it purports to represent”, there is the second question of whether the videotape tends to establish a fact in the case of the party offering the tape.
It is often the case that on close scrutiny, a videotape will be demonstrated to show activity of a plaintiff, but will not go sufficiently far to establish a fact of a plaintiff not being injured or not suffering from the extent of the injury as he or she may have been presumed to have complained. A good example of this is a person who has suffered from a neck or back injury and who is able to do some things at some time during each day, but is not able to engage in that activity the entire day at work or at play. When captured on videos during the part of the day he is doing that which he or she may be instructed by his Doctor, to try, but not captured during the part of the day when he is suffering from the results of doing that rehabilitation or exercise, the videotape is certainly indicative of activity which can be undertaken, but does not establish the fact that the person filmed is not injured or the fact that the person filmed is restricted in his everyday activity.
Moreover, there is always the issue of whether or not the understanding of the jury will be aided or instead will be clouded by the activity demonstrated on the videotape. We all assume in this day of more liberal and evidentiary proceedings that any videotape should be admissible if it shows anything that approaches potential inconsistencies in the activity which can be undertaken by a plaintiff. However, on closer examination on the law of this issue this is a wrong assumption on our part. Assumptions of helpfulness as opposed to simply clouding the issues are often made with anything offered in a surveillance film.
IV. CHAIN OF CUSTODY ISSUES:
• It is often assumed that the evidence which is being offered has been properly maintained and kept in the custody of the person offering it:
It seems that these days we ignore the need to demonstrate originals and the proper maintenance of the chain of custody unless we are dealing with a criminal case. However, where so much of the information being presented in a civil case is also potentially evidence in a criminal case, the standards for proof of criminal evidence should not be ignored. Examples of these issues are in cases involving drunk drivers or cases where the evidence which is being offered will have criminal consequences such as in a workers compensation fraud claim arising out of a work place injury that also gives rise to a third party tort suit.
Reviewing the purpose of the chain of custody rule, one is drawn to the fundamental tenant that in considering the maintenance of the evidence we must be certain of its integrity to prevent the potential for tampering or the potential of the evidence being altered. Schwab v. Galuszka, 463 So.2d 737 (La. App. 4 Cir., 1985), writ denied, 464 So.2d 1386 (La. 1985), denied, 474 U.S. 803, 106 S.Ct. 37, 88 L.Ed. 2d 30, U.S. La.(1985).
Although the chain of custody must be established by an “overwhelming preponderance of the evidence” (See Laborde v. Louisiana State Racing Commission, 560 So.2d 594, 597 (La. App. 4 Cir., 1990), twenty-four hour vigilance of the evidence is generally not required in a civil case. Recasner v. Department of Fire, 94-0815 (La. App. 4 Cir., 11/17/94), 645 So.2d 1291, 1293 (La. App. 4 Cir., 1994), citing LaBella v. Louisiana State Racing Commission, 569 So.2d 58,61(La. App. 4 Cir. 1990), writ denied 572 So.2d 67 (La. 1991).
• WHAT IS AUTHENTICATION?
Authentication is described in the Louisiana Code of Evidence as a process whereby something is shown to be that which it purports to be. The best example of these issues being throughly discussed is in the book of G.W. PUGH et al, “Hand book on Louisiana Evidence Law” (1995).
Whether the evidence “is what its proponent claims” is not measured by the usual preponderance of the evidence standard according to the provisions of the Louisiana Code of Evidence Article 901. Instead the standard found in Article 901 is of “evidence sufficient to support a finding”, an evidentiary standard that falls below the preponderance of the evidence standard.
Notwithstanding this more relaxed statutory standard for determining whether or not to admit evidence as authentic, the case law tends to allow for admissibility only where the evidence falls within “the preponderance of evidence standard”. See McLaughlin v. Fireman’s Fund Insurance Co., 582 So.2d 203, (La App 1 Cir., 1991) re-hearing granted on other grounds, writs denied, 586 So.2d 536, (La. 1991). See also, George v. Department of Fire, 93-2421(La. App. 4 Cir., 5/17/94), 637 So.2d 1097, 1107; Segura v. Louisiana State Racing Commission, 577 So.2d 1031, 1033 (La. App. 4 Cir., 1991).
• APPROACH WITH GREAT CAUTION
The Louisiana Supreme Court in Olivier v. LeJeune, 95-0053 (La 2/28/96), 668 So2d 347, 351 gives us instruction on the manner in which we should approach motion pictures or video tapes:
“The determination of whether motion pictures or videotapes are admissible is largely within the discretion of the trial court, LaFleur v. John Deer Co., 491 So.2d 624, 632 (La. 1986).”
Quoting from Orgeron v. Tri State Road Boring,Inc., 434 So.2d 65, 68 (La. 1983), the Olivier Court shows that we should exercise great caution because:
“Evidence in the form of moving pictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject, they do not show rest periods, and do not reflect whether the subject is suffering pain during or after the activity.”
• ATTACKING CREDIBILITY EXTRINSICALLY
The best review of the use of surveillance or videotape evidence is seen in the Olivier case in the dissenting opinion of Justice Johnson where she reviews the basis for the use of videotape evidence only when offered to attack credibility and then only in accordance with the Rules of the Code of Evidence Article 613.
“Extrinsic evidence is evidence obtained from a source other than the direct questioning of the witness. The use of extrinsic evidence, including videotapes, for impeachment purposes is governed by the La. Code of Evid., Art. 607 D which provides as follows:
Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show witness’ bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness;
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.
However, before extrinsic evidence to impeach a witness can be introduced, a proper foundation must be laid pursuant to the La. Code of Evid, Art. 613 which provides as follows:
“Except as the interests of justice otherwise require, extrinsic evidence of bias, interest or corruption, prior inconsistent statements, conviction of a crime, or defects or of capacity is admissible after the proponent has first fairly directed the witness’ attention to the statement, act or matter alleged, and the witness has been given the opportunity to admit the fact and has failed distinctly to do so.”
Under Art. 613, if after being confronted with the fact, the witness admits the fact, the evidence is not probative of the witness’ credibility. That is, upon admission by the witness, the evidence does not challenge his truthfulness and, consequently, it is not impeachment evidence admissible under Articles 607 and 613.
The use of videotapes in litigation has burgeoned in recent years. Ashley S. Lipson, Art of Advocacy–Demonstrative Evidence, § 13.02  (1995). Frequently, defense attorneys hire private investigators to film surveillance videotapes capturing the plaintiff participating in physical activities inconsistent with his claimed injuries and limitations. Lipson, at § 13.02 ii. Discovering the truth, such as indications of pain by the plaintiff or the need for medication or rest after physical exertion, is rarely the aim of a surveillance videotape. Where the goal and job is to find damaging evidence, a great potential for abuse exists. That is, surveillance videos provide manifold opportunities for fabrication and misrepresentation. For instance, an injured plaintiff may be filmed picking up a large object with ease. The camera would fail to show whether the object was relatively light or whether, afterwards, the plaintiff experienced debilitating pain and was unable to engage in further physical activities. Thus, a surveillance videotape is naturally suspect. Although videotapes are intended to give the impression of an objective reality, they are, in fact, merely a product of the point of view of the video camera operator. “The video camera operator can create a false impression through selectively choosing when to turn to the camera on and off. Nonetheless once a videotape is introduced into evidence, it somehow takes on the auro of objective truth. Moreover, videotapes make a lasting impression on a jury. Not surprisingly, the danger for undue prejudice is immense. Id § 13.01-06.”
Our recent experience in Washington, supra, is an excellent example of how videotape may provide the “manifold opportunities for fabrication and misrepresentation” as (Olivier, supra). Here are the pertinent facts:
• June 8, 2000, Edward Washington and Travis Parker were injured while riding on the service elevator at One Canal Place.
• According to the deposition of Charles Peterson, the building manager for One Canal Place, he was given the videotape by an unknown Corporate Realty employee within a few weeks of this incident.
• On or about June 6, 2001, plaintiffs file suit against defendants herein. Along with plaintiffs’ petition, plaintiffs served interrogatories on all defendants and specifically requested that each defendant “Please identify and/or describe the exhibits you
intend to offer as evidence, demonstrative exhibits, or reference exhibits, at the trial on the merits.”
• Defendant, Schindler Elevator Corporation, responded to these initial discovery requests on August 27, 2001. Schindler provided supplemental responses to these discovery requests on November 14, 2001. A copy of the surveillance tape was not identified in these responses.
• According to a letter dated April 7, 2003, from counsel for Corporate Realty and Aetna, the video-tape was provided by the building manager to in house counsel on September 21, 2001.
• According to the receipts attached to the letter from Corporate Realty, the tape was copied and provided to counsel for the other defendants, on or about October 4, 2001.
• On December 17, 2001, defendant, Schindler Elevator Corporation, took the deposition of plaintiff, Edward Washington. Counsel for all defendants attended this deposition.
• On April 1, 2002, plaintiff propounded supplemental requests for production upon all defendants and specifically requested that all defendants “produce copies of any and all surveillance video and/or any other means of recording the activities of the plaintiff, Edward Washington….”.
• Defendant, Corporate Realty, Inc., responded to the initial discovery requests on April 2, 2002. A copy of the surveillance tape was not identified in these responses.
• On April 4, 2002, in response to plaintiff’s supplemental discovery requests for surveillance film, defendant, Schindler, objected to this request as being “vague and ambiguous,” but it nevertheless identified and provided film from surveillance of the plaintiff taken a year and a half after this incident. There was no mention, however, of the surveillance film from the service elevator.
• Defendant, Aetna Life Insurance Company, responded to the initial discovery requests on April 23, 2002. A copy of the surveillance tape was not identified in these responses.
• On May 28, 2002, in response to plaintiff’s supplemental discovery requests for surveillance film, defendant, Aetna, also objected to the supplemental discovery requests as being “vague and ambiguous,” but nevertheless it identified and provided film from surveillance of the plaintiff taken a year and a half after this incident. There was no mention, however, of the surveillance film from the service elevator.
• On or about August 3, 2002 (some two years and two months after the incident giving rise to this litigation), counsel for Schindler provided to undersigned counsel the first version of the surveillance tape which purports to be for the service elevator for June 8, 2000. This was the very first time that plaintiff learned of the existence of the video-tape. Additionally, this tape was admittedly altered by Schindler and Zurich. Specifically, the speed of the film was changed, and camera angles and the time and date stamp were removed.
• Undersigned counsel responded by letter dated August 6, 2002, expressing plaintiff’s concerns regarding this video-tape.
• A series of letters ensued between undersigned counsel’s office and counsel for Schindler, until what was purported to be a complete copy of the tape was provided to plaintiff on about August 19, 2002. It was later learned, however, that this tape was also materially altered by defendants. Specifically, several hours of film were removed.
• In August 2002, plaintiff requested the alleged original from Schindler, and on March 17, 2003, plaintiff requested access to the original video-tape held by Corporate Realty on April 1, 2000, plaintiff was finally granted access to the tape, at which time, plaintiff learned that, yet again, the previous version of the tape produced by defendants was in fact not a complete copy of the tape which defendants wish to introduce into evidence at the trial of this matter.”
• On August 29, 2003, pursuant to an Order of the Court four (4) videotapes were produced from the one (1) videotape that was allegedly originally made in this matter. The speed was changed and the quality of the tape was different.
• On September 15, 2003, at the Motion in Limine Hearing [which lasted three (3) days] it was discovered for the first time that the alleged original, which was presented for the first time on April 2, 2003, was in fact significantly shorter in length than the alleged original being offered into evidence on September 15, 2003 (T-120 tape was offered as the alleged original on April 1, 2003; a T-160 tape was presented as the alleged original on September 15, 2003).
• Plaintiffs hired an investigator to determine the authenticity of the tape. He was able to testify that the original tape viewed on April 1, 2003 was a T-120 rather than the T-160 tape being offered as evidence. Further, he testified that the tape markings on the binder of the alleged original as presented on April 1, 2003 were different from the tape binder markings on the alleged original tape being offered into evidence on September 15, 2003.
• Most importantly the information on the alleged original presented on April 1, 2003 was also found to be lacking certain critical conflicting dates that were not shown or demonstrated (or even commented upon) in any of the information or alleged copies of the originals that had been given to plaintiffs during the two years before August 29, 2003.
• Instead of a June 8, 2000 date or a June 9, 2000 date, the alleged original was found to have dates of April 8 and 9, 2000, and also May 8, 2000, none of which could be easily explained by the witness offered by the building engineering department, despite his effort to change his testimony and to contend that he had been previously mistaken, and then to attempt re-characterize the markings on the tape as well as the manner in which the tape evidence would show as conflicting dates.
The use of an investigator for determining authenticity, chain of custody and admissibility of the reported original was in these circumstances critical to our being able to avoid the assumption that the alleged surveillance tape had been retrieved from a system that “just must have been properly maintained”, when in fact it was clearly not properly maintained or the evidence preserved. A copy of the report of the investigation of Terrell Micelli Investigations is included with this paper to show the questions for consideration when presented a videotape. (See report attached).
VI. THE WEB OF DECEIT IN THE STORAGE HANDLING MANIPULATION OF EVIDENCE
Annexed for your consideration is the finding of the trial court which has been maintained on initial writ review by the Fourth Circuit Court of Appeal. This finding is that the defendants engaged in a ” web of deceit that surrounds the handling, storage, production and identification of the tape” which they intended to offer as surveillance evidence. Obviously, the concerns of Justice Johnson that “Surveillance videotapes provide manifold opportunities for fabrication and misrepresentation” was found by the trial court in this case to exist.
• Professionals who materially alter surveillance videotapes through digitalization of the data with modification through the use of computers:
The most disturbing part of the evidence alterations in this case is seen first in the responses to discovery offered by the defendants that they relied entirely upon professionals located in New Orleans to modify any of the videotape evidence which they intended to present. The analogue video tape of the past may now be presented in digital format with modifications which are very difficult to trace or to prevent. In our case we saw that despite the denials of any digitalization and/or modification of the tapes, upon taking the deposition testimony of the individuals who were alleged to have made the videotape changes, it was discovered that the professionals did in fact make the changes requested after digitizing the analogue videotape. Herein lies much of the difficulty with relying upon videotape evidence. Not only can it be modified by professionals, but it can be modified intentionally or unintentionally in copying.
The dangers in the digital world go much farther than being able to manipulate videotape and photographic evidence. They obviously include deletion, manipulation, alteration or modification of data in all kinds of forms which will require that our Courts once again return to consideration of basic evidentiary standards. As a recommendation for legislative consideration, it is strongly believed by this writer that the evidentiary standards requiring original documents should be restored to the code as to digital evidence to avoid the flood of evidentiary problems which will to be faced by our Courts in the “digital age”.