Tuesday, May 5, 2009

FRE Rule 26 and the History Log

For many in this line of work, the first subpoena received often sends a chill up the spine. "Did I do everything right?" "Did I remember to turn over everything for discovery?" "What kind of questions will I get on the stand under cross?"

A previously reviewed book can help prepare the new witness for the first trial. I received some questions about note taking and the discovery process, so I thought I'd point the book out as a reference again.

Evidence and discovery rules vary from state to state. The Federal Rules, however, can provide a solid guide and a starting point in discussing the case with your legal team.

Regarding notes:

"The law, however, expects expert witnesses to write reports for the court, outlining their opinions on the matters about which they are testifying. In the eyes of the law, the expert's testimony is allowed by the court only to the extent that the expert adequately documents the basis for it in a report and makes it available to the opposing party before the trial.

This discovery process alters the classic writing process outlined above because the forensic writing process and the rules of disclosure can lend the opposing counsel ample fodder for cross-examination. The key to understanding how the legal process requires you to document your expert opinions lies in Rule 26." - from A Guide to Forensic Testimony: The Art and Practice of Presenting Testimony As An Expert Technical Witness by Smith and Bace

They go on to mention, "As is the case with much of the Federal Code, Rule 26 has been amended to include provisions dealing with electronic evidence discovery."

Rule 26 has an entire section in which it deals with the special circumstances of expert
testimony. Here is what the rule says on that topic.

(2) Disclosure of Expert Testimony.

In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.

Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefore; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under
subdivision (e)(1).
Federal Rules of Civil Procedure, Rule 26(a)(2).

You see the emphasis made on turning over everything in discovery. Notes, reports, and your complete CV. In the world of e-discovery ... this also means notes and reports generated by the programs that we use - if any are created. This means the History Log, in Photoshop, is more than likely discoverable. It's a record of the steps Photoshop has taken on an image or series of images.

Smith and Bace make clear the fact that the reports we generate will provide fodder for cross examination. This includes the History Log. If your log is not handled correctly, it will likely include a running list of every image ever processed by you on your computer. Do you want to turn this list over for discovery? Imagine the questions it would generate. If your Log only shows work on a few images, but hundreds were turned in for discovery, you should expect a long series of questions.

How do you handle the use of the History Log? Have you consulted with your Risk Management team, your attorneys, or your agency's manual? Before you turn on that function ... check to see if you are OK.

1 comment:

M. Jones said...

Your article was well thought out and provided relevant insight regarding mandatory requirements and considerations.

You have provided a great service to the visual forensics community.

Keep up the wonderful writing, and thank you for sharing!


M. Jones, CSCV, CCVS