In a negligence case where a plaintiff was the victim of a car crash, the Defendant trucking company attempted to introduce out-of-time third-party custodian affidavits and witnesses on the last day of discovery. Boling v. Mohawk Indus., 2010 U.S. Dist. LEXIS 75674 (D.S.C. July 27, 2010).
The Court denied the out-of-time affidavits because they prejudiced the Plaintiff. Boling, at *7-8.
The Defendants argued the cell phone witness was identified in response to the Plaintiff’s answer to a request for admission regarding the cell phone records. While the Plaintiff admitted the authenticity of the text message records, he denied the timing of the text messages. Boling, at *8-9.
The Court found that the Plaintiff should have expected the cell phone custodian’s involvement in the case, because the text message records were the subject of discovery. Boling, at *9-10.
However, the Court did not give the Defendants an unlimited texting plan. The witness would be a lay witness governed by the Federal Rules of Evidence. Moreover, the witness could not testify as to when the Plaintiff sent or received text messages, because that would be expert testimony. Boling, at *10.
While the third-party witnesses would be allowed to testify, their testimony would be limited to authenticity issues. Boling, at *10.
Bow Tie Thoughts
You are hard pressed to find a party living off the grid without a cell phone of some sort. Authenticating this ESI may require a third-party witness and sometimes an expert.
SmartPhones are not the only technology that might require third-party testimony. People are often “cloud” dependant on email and high-speed internet service providers for our App powered lives.
Parties should be prepared for third-parties to testify as to the admissibility of certain electronically stored information. Attorneys should consider whether a records-custodian is sufficient, or if the case requires an expert to explain the timing of text messages or explain ISP addresses.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.