by Cooper Offenbecher
4 Shidler J. L. Com. & Tech. 6 (2007)
Litigation
10/17/2007
In re Vinhnee, a Ninth Circuit Bankruptcy Appellate Panel decision, employed Edward Imwinkelried’s eleven-step foundation process for authenticating computer records. In employing the eleven-step process, the Vinhnee court articulated a stricter standard than has previously been used by most courts for admitting computer records into evidence. This Article will first consider the various foundation standards that courts have applied to computer records. Next, the Article will analyze the Vinhnee standard, consider its elements, and compare it to the previous standards and commentary. Finally, the Article will conclude that the Vinhnee approach reflects common concerns by courts and commentators, and may influence other jurisdictions.
By Shan Sivalingam
3 Shidler J. L. Com. & Tech. 9 (2007)
Litigation
2/14/2007
Early in 2005, a Florida intermediate appellate court ruled that a trial court adjudicating a divorce proceeding had properly excluded evidence that the wife obtained by installing a spyware program on the husband’s computer. The court held that the evidence was an intercepted electronic communication that violated a Florida statute modeled after the Federal Wiretap Act. The Florida court ruled that exclusion fell properly within the discretion of the trial court, despite the fact that the relevant Florida statute did not contain an exclusionary rule for intercepted electronic communications. This Article provides a short overview of the federal and state prohibitions on intercepting electronic communications before examining the Florida court’s analysis of how the spyware violated state law. The Article will also examine the scope of the court’s holding and whether information obtained from spyware could ever be admissible in court.
By Kelcey Nichols
3 Shidler J. L. Com. & Tech. 10 (2007)
Litigation
2/14/2007
In a recent case of first impression, Barton v. U.S. District Court for the Central District of California, the U.S. Court of Appeals for the Ninth Circuit held that an online communication involving an online intake form filled out by prospective clients gave rise to an attorney-client relationship governed by the duty of confidentiality and subject to attorney-client-privilege. The Ninth Circuit’s multi-factored analysis suggests a modified framework for evaluating when the duty of confidentiality and attorney-client relationship can be formed through online communications. This Article discusses Barton’s implications for attorneys and law firms that communicate with clients and potential clients online. Attorneys should be able to avoid an unexpected duty of confidentiality created through an online communication by clearly defining the attorney-client relationship and adhering to the Rules of Professional Conduct.