As you are aware, the vast majority of what the ARDC is complaining about KD involves the use of emails CF didn’t like. The only problem with emails is that either all parties stipulate to them at the onset of a trial, or you are left with evidential problems that are near insolvable.
Unlike a document that can be examined for type, font and signature, an email comes from and only exists truly in cyberspace. For the best evidence of emails, the examining atty should ask the witness to pop open his or her laptop and show how that email still exists intact on a public server such as hotmail, yahoo, msn, or the popular favorite today, gmail.
For that reason, I have at my firm a “denisonlaw” separate server that tracks all incoming and outgoing mail. Despite the fact that unlike my paid for mail box at earthlink, it is hopelessly clogged with spam, I can get an original of everything in or out of my firm for years and years. It is on a public server (I forget the name of the company), and everything in or out may be comfirmed. This is esp. easy since I always send out via that server.
Ken has Yahoo, I believe so it should be easy to prove with a simple search in court.
Now the easier thing to do would have the ARDC stipulate and print out exactly what they will use. Also, (based upon my experience in Federal Court and Law Division trials of Cook County Circuit Court), the attorneys should stipulate before hand all evidence used.
This entire process at the ARDC seems quite antiquated to me.
On of the things that KD will be using to accomplish the problem of unauthentic or adulterated emails will need to be via the “best evidence” rule which does not mean is this or that the best evidence of something, but whether a party brought the original.
So where is that original? It exists on a public server and KD, I believe should be able to step out in the hall with each email and be shown it on the PUBLIC SERVER the party propounding it wishes to use. Ken should not have to do that, and he should be prepared with a legal memo and technical memo (I’ll vouch for it, with my many years writing software patents and background in Fortran IV and C++ program — and yes, I did get A’s) but emails are a total disaster in courtrooms such as the Daley Center that have no WiFi access and are still resting on printed documents. Justice simply cannot be accomplished with such a system in today’s email based world.
The best evidence rule is a common law rule of evidence which can be traced back at least as far as the 18th century. In Omychund v Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33, Lord Harwicke stated that no evidence was admissible unless it was “the best that the nature of the case will allow”. The publication ten years later of Gilbert’s enormously influential Law of Evidence, a posthumous work by Sir Jeffrey Gilbert, Lord Chief Baron of the Exchequer, established the primacy of the best evidence rule, which Gilbert regarded as central to the concept of evidence. The general rule is that secondary evidence, such as a copy or facsimile, will be not admissible if an original document exists, and is not unavailable due to destruction or other circumstances indicating unavailability.
The best evidence rule is also thought to be the basis for the rule precluding the admissibility of hearsay evidence, although the two rules are now quite distinct.
Now that you know about emails and public servers and the “best evidence” of presenting a printed out email in court, see Ken’s Comments below:
From: JoAnne M Denison <firstname.lastname@example.org>
To: kenneth ditkowsky <email@example.com>
Sent: Saturday, September 1, 2012 11:18 PM
Subject: Re: Saturday on the American Reconstruction Project
otherwise anything printed out or popped down is subject to simple QED tampering.
From: kenneth ditkowsky
Sent: Sep 1, 2012 9:39 PM
Subject: Re: Saturday on the American Reconstruction ProjectI did not suggest that this gal was going to or should run for the U S House of Representatives – however, the word of warning is noted.I’ve noted that the ARDC has taken some of my e-mails out of context. This is the problem with e-mails. In addition there is no privacy. I addressed this e-mail to Gloria even though it was intended for someone else and Gloria had nothing to do with any statement made therein. This masks who I actually sent the response. Technology in the hands of an amateur such as yours truly is like putting a loaded gun in the hands of a child. The e-mail that was allegedly sent to me which I am responding to can also be altered. The author could have written the Martin Luther King assassination, and referred to *****. The words CIA could have been KGB or they may or may not have been in the original.With the volume of e-mails that have been sent back and forth it is impossible for a litigant to know if the words and phrases that are repeated in the e-mails are accurate. For that reason, on September 6/7 any e-mails that are tendered as evidence have to have a strong foundation and most importantly the ‘best evidence’ is the original e-mail. Please do not allow me to forget the foregoing. Thank youKen Ditkowsky