Name: Webinar: ESI Admissibility at Trial with Judges Presiding Over Civil, Criminal, and Family Law Cases
Uploaded: 2025-11-13T21:46:05.322Z
Duration: 1 h 40 s
Description: Webinar: ESI Admissibility at Trial with Judges Presiding Over Civil, Criminal, and Family Law Cases

Transcript for "Webinar: ESI Admissibility at Trial with Judges Presiding Over Civil, Criminal, and Family Law Cases": Hello, everyone, and welcome to today's webinar. We're excited to have you. Slowly, you'll see our different speakers joining the stage here, but I just wanted to take a quick second to say hello. I'm the producer of today's webinar, and I just wanted to make sure that everyone here knows that we can answer questions, that we're excited to have you all and to get started here. One thing I also wanna let you know here is that in our you'll see on the right side of your screen some a q and a and a chat feature. As we drop different questions throughout today, you'll be able to answer those for you. Without further ado, I'm gonna pass this off to Josh. He's gonna introduce our speakers and talk a little bit more about, today's talk. Thanks so much. Thank you all. We really appreciate everyone taking time to join us. My name is Joshua Gilliland, and this is my first webinar for Reveal. And I wanna thank everyone for tuning in and all of our great speakers who are friends and brilliant legal legally legally minded jurists. So first up is, Ted Brooks. Ted taught me trial director back in the day, and I'm glad that he's here to once again join me for another adventure. We have Santa Clara County Superior Court Judge Socrates Peter Manoukian. Judge Manoukian and I have done many ediscovery, presentations together for the Santa Clara County Bar. And for a fun bit of trivia, he presided over the case depicted in. the film, The Social Network. We have Los Angeles County Superior Court Judge Carol Nahara, who has the distinction of being depicted in multiple docudramas about some of the cases she worked on as a district attorney. Judge Nahara is a good friend and has been going to San Diego Comic Con since the nineteen eighties, and we've done many panels together there as well. Also, with us is judge Dana Nicholas. Judge Nicholas and I have also been at WonderCon and Comic Con together. She presides over family law court cases in San Diego County, and you can also tune in to hear us talk about Star Trek on our podcast. So there's a lot of fun to be had there. Now I'm an evidence nerd if the bow tie didn't give that away, so we're going to get into some deep fun issues on the rules of evidence and cases and, more importantly, just how do we handle these issues with electronically stored information appearing in court. So first up, let's talk about how we handle these cases, these matters. We'll get into admissibility objections. We'll talk about frequent challenges. We'll hear from the judges on some of their war stories, success stories from Ted on how he's helped people, and we'll get into some good old fashioned trial advocacy. So first up, offering ESI into evidence. And this list was modified from, Santa Clara County judge, Patricia Lucas, and who was quite the evidence maven, and written extensively on the rules of evidence. And, we updated this for some ESI considerations, and it's the same things that we've been talking about since law school with how you offer ESI as an exhibit, but there are some twists. Now, Ted, you might have the record for getting the most evidence in from helping lawyers. What insights do you have on offering ESI with this checklist? You know, briefly, it's just back in the day, everything was by paper, and and attorneys might hand a, an exhibit, to the jury and and or 12 copies of it, 14 copies, however many are in there, and, pass that around and have them look at the exhibit and turn to page three, take a look at this and that. And, you know, the downside is they can turn to page four and see what you really didn't want them to see and that sort of thing. You had less control. Well, now with, ESI, everything is sort of, we can we have a greater, amount of control. So we can kinda spoon feed the jury what it is we want them to see. We can put up a whole document on the screen, but we can zoom in on one paragraph, and that's all they're really gonna be able to read legibly. So, I think the important consideration between ESI and hard copy documents is how are you going to, a, present it? How are you gonna show the jury? And how are you gonna get it admitted into evidence? Because you can have some really cool stuff out there on the Internet and links and what have you, but you can't admit that. So you have to find a way, to do that, whether it's, using native documents, electronic documents, and putting them in on a thumb drive, or whether it's printing it out and, putting it into evidence, having it marked as an exhibit Thank you, Ted. Which raises the issue of what do you mark? So I wanna hear from each of the judges on what they've seen, but some of the basic rules for ESI is that way. ESI. There there are folks who will put ESI onto a thumb drive and have that dropped off with their trial exhibits. There are those who might put it on an external hard drive or a disk. There are a variety of ways that this can come in as an exhibit. And, starting with Judge Manoukian in Santa Clara County where you preside over civil cases, What have you seen? What I do is order that the parties produce a, thumb drive with all their exhibit and, give copy to the court, copy to opposing counsel, copy to the judge. In that way, I don't have reminders full of material and, hard very hard to find. Whereas if I get a thumb drive, I can put notes right on the document on the thumb drive. I am going to start a procedure that if you are using AI or anything, you turn it over to the opposing side three days before trial so they can have an expert look at it to determine if it's engineered or not. Thank you, your honor. Judge Nahara. I see that, by the way, I'm I'm losing, I'm losing power. My, all my USB and the USD ports are cut offs under deferred for a minute, and I might get some help. Sounds good. We're here. So, Judge Nahara, you preside over criminal cases. How are you. seeing electronically stored information coming in, in trial? We I've seen both in the same trial, both the thumb drive and the disks. A lot of time, people don't realize this, but they will play stuff on their computer. But when they come into court, of course, they're not putting their computer into evidence, so they'll have it on a a disc drive of some sort, and it won't play as clearly as it does on the computer. And that's when they come into problems, and that's why I really recommend that when you're marking exhibits that or before you mark exhibits that you go in and check to make sure the quality from your computer is the same as the disc. People will ask, can I play it from my computer and mark the disc? And we can't. But I've that request has been made so many times. So for me, I would say go with the thumb drive. The disc is never gonna be as clear, and make sure you run it before you, you try to present it before the jury. And don't just run it on your computer and think, oh, it looks fine. That'll be great. Thank you, your honor. My USB ports USB port. I I tried to charge the laptop. so if we could mute judge Manuk there we go. Alright. While he works through his IT challenge, judge Nicholas, can you help us understand what you're seeing in family law cases? Sure. I am very excited to announce that San Diego family will have, an electronic evidence portal up and running starting January 6. So everyone will be able to upload all of their ESI and have that available, that way. Alright. So we're hearing judge me again on his other device there. It's interesting. The other thing that I would say is that each person should check with a judge that. they're appearing before and see what they prefer, because different judges are all different and each one of them has a different preference. But, I do really agree with judge Nahara and that you should try it out. If you put it on a thumb drive, take it to the department, take it to someone else's computer, try it out. I know that my clerk is available and will schedule appointments for people to come in and test their IT in advance. So that's the best. thing. Make an appointment with the clerk or the JA and, test out your tech. Fascinating. Yes. That's good news to hear about San Diego County. Ted, you've you've had hundreds, if not thousands, of cases. How are you helping lawyers with with getting exhibits in? Right. So, again, it's kind of helping, become, a bridge, if you will, between the attorneys and the court. It means most attorneys, most most that we work with don't go to trial more than maybe once or twice a year. And this is, you know, what the trial consultants do, like, every day. This is our job. This is what we do. You know, and the issue of thumb drives, for instance, what we might do, initially in a case is have all of the, electronic evidence on that thumb drive, you know, and and or possibly just the native files. We might put them all on there. And then at the end of the case, as soon as we're done getting evidence admitted, then we'll go through that thumb drive and remove anything that was not admitted because, a a live thumb drive may have exhibits that are not you know, should not be in the record, that should not be available for either the jury during deliberation, if they're taking a look at it, or for appeal. You know, here's something else. Oh, we didn't see this in here. And, you know, maybe it has a a significant, effect on, you know, the the the final outcome of the case or what have you. So that's, you know, kind of a thing. And then, again, it's it's just kind of bridging the gap between, you know, we have this. How do we get it in there? And I know we're gonna be discussing some specific examples, in a bit. But, yeah, it's it's it's kind of, deal with what you have and and get it in a a digestible format to get it in front of the jury, in front of the witness, and then, ultimately, into evidence. Judge Nahara, are you seeing, lawyers following Ted's example that he just outlined? I have. And in fact, I will see, a thumb drive that will have multiple files. And we insist that each file be labeled so that we know when they refer to what they're talking about, we don't have to label each file as another exhibit. So we're seeing a lot of that, and that is working out really well. The only problem that we have that's a little different from what Ted was talking about is if there are things on an exhibit that's been marked but hasn't been entered into evidence yet and they have to change something, In criminal, you have to mark a brand new exhibit and create the new exhibit and and remark it as that new exhibit, and that is what would be admitted into evidence. But we can't just go into a previously marked exhibit and change it. So. that's that's the only issue, the only difference that I see there. Yeah. Judge same same would actually apply in, in civil. I mean, if we go in and a witness draws an x on a photograph or whatever, now it's a new exhibit. It's not the same. Yeah. That's. exactly right. Yeah. Yes. Excellent. Judge Nicholas, family law doesn't have juries. Are you what are you seeing with litigants coming in, with with all of the fun topics that happen in family law? Well, we're getting lots of, different ESI questions, and one of the issues are are deep fakes and deep fakes of photos, deep fakes of, videos. And so that's one of the issues, that I see quite often. Someone will come in and claim that the photo that another party is presenting really isn't them or really wasn't taken by them. That's a nice transition to set this up for our deep fake discussion. So for those who are keeping score of evidence references, this California case is from 1923 about authenticating photos. And so, again, it's over a century old, and the old method is is still the one used. You need someone who who not necessarily took the photo, but might have been at the in the photo, was there, they can testify about it, and, like, that's the standard for authenticating photos. Deepfakes make this a little more complicated. And, judge Nicholas, you identified this adorable puppy photo that should make people wanna go out and, you know, adopt rescue dogs. But is this a real picture? And if so, how can you tell? It is not a real picture, and the way that I can tell is that my son sent it to me. But, otherwise, one of the ways that you can tell, you can look for different things in photographs, if you don't have the metadata available. Sometimes in family courts, the litigants aren't sophisticated. Many of them do not have attorneys. But if you're an attorney, look at the metadata, see when it was changed or altered. You can also do a image capture, and run it through the internet and see if there are any other like images that come up that have been altered. Here, it's just kind of, you know, a dog's really probably not gonna drink through a straw. That's not how their lips work. So you apply a little bit of common sense to it. But this was just a fun photo, to kind of explain, yes, you really do need to check the photos. Judge Nahara, since in criminal cases, there's a higher, you know, burden of proof, If somebody comes in with a photo and we're talking about, you know, someone's guilt or, you know, not, you know, you know, their innocence, how what standards do you wanna see applied by, attorneys? What we've what I've seen a great deal is most of the photos come in that are taken either off off hardware, off cell phones or off computers, or given from the cell phone provider of Instagram or photos that are videos or whatever that were taken at the time. And so they have a lot of data that comes with it, data that tells, a lot of the metadata. It tells where it came from, when it was uploaded, how it was uploaded, all those kind of things. And everyone gets experts in to look at the data, and I sign, orders for experts to go in and do that. And we had an issue come up recently about that because it involved a shooting at a hamburger stand, two gangs, and the question was who shot first. And the question was the sound of the first shot, who was out when you heard the first shot, and that was vitally important. There were it was basically dueling experts on whether this video had been cleaned in such a way or the timing had been changed in such a way that it shows the wrong person doing the first shot. And it they no one could definitively answer that, so it never came in. And it was it's interesting because sound has to match up to the video, and that can be easily manipulated. And there there's, a lot of things that that they can do that can change the whole positive of the case, whether it's self defense or not. you've worked on some high profile criminal defense cases. If you were given the challenge that judge Najjar just described, how would you meet that? Mhmm. Well, you can certainly do a a a cursory look and see what you can spot, you know, see if you see issues or or discrepancies and what have you. But if it's, really important and it might be necessary to have it in the case and have it, stick, you better bring in an expert witness that actually has all the software, all the tools, not just the free stuff you can download off the Internet, and all the proper equipment to take a look and and find out, you know, what is this, where did it come from, how was it made, and really get to the bottom of it. And the expert witness is the only one you're gonna want setting up in the witness stand during trial. You don't want, you know, to get somebody who just happened to, you know, have the the freeware and was able to take a look at it for you and and put them on a witness stand and see how they do with posing counsel. So, yeah, that's that's really the the strongest advice in dealing with any of this is if it if it needs an expert, get an expert. Yes. Yep. Judge. Manoukian, glad the tech issue has been solved. So we're addressing the deep fake admissibility question with photos. And, judge Nicholas and judge Nahara and Ted have shared some of their experiences. And the civil side and, you know, the heart of Silicon Valley, what have you seen? Well, let me back up by saying altering photographs, the Soviets were really good at it. When they didn't like somebody in the Politburo, they would just whitewash them out of the picture. That's been our that technology has been around ever since there were photographs. The thing about AI pictures, it's just the same thing. If you look at a regular digital, picture from a digital camera, the pixels are all arranged very evenly. If it's been altered somewhat, you will see a swarm of, pixels in one area or several areas, and it's very easy to, alter photographs. Heck, I my first AI picture that I did was me in a UCLA football uniform about, a month ago after UCLA beat Michigan State in football. It was very it's very easy to do. However, it's very easy to detect as well. That's why I tell the, attorneys that, you know, turn over all your pictures and everything three days before, before trial so that, hopefully, they have a, an expert on hand who can who can look at it. And lawyers can do it as well if you take time to learn the technology. Technology has always been helpful to the legal profession. For some reason, the lawyers are, very slow to adapt to it. In 1978, when I started working at a law firm with 45 lawyers, we had Westlaw and there was only three of us using it. The older lawyers in the firm said, whatever you find on this computer, you're gonna have to go to the hard books and double check that it's correct because it might be wrong. Well, it wasn't wrong. Lawyers should not be afraid of AI. It's like a hammer. If you hammer a nail, it's very useful. If you hit somebody on the head with a hammer, not not so good. Any tool can be misused. Just take the time to learn the technology. And on that, let's play with some of the text. So judge Nicholas identified a couple videos, and so we're gonna pull up one. And that compares what's a real image and what's an AI image. So let's And Judge Manoukian. is much better than I am at spotting the fakes. But, here you can test yourself and see if you can spot which is the fake. There you go. Yeah. This is wild to see on how good the tech has gotten. There's also a lot of it that you can tell that's fake. But some of the food ones, that's a very shocking example of what could be real and what could be fake, and that's raises the issue of let's get, you know, experts on the stand who can address these questions and make sure that we are not going off, you know, the deep end with inadmissible incorrect information coming in to a case. That's just courts are about the truth, and that's just not true. Now let's pivot back to some of the classic ediscovery in court issues that people have, and one of those is the admissibility of spreadsheets. Now there's the old joke that that people hate Excel files and, you know, and ediscovery because they they get complicated. They have formulas. So, we'll start with, Judge Nicholas. In family law cases, do you see spreadsheets? And if so, how are they being offered and admitted into evidence? Yes. We do see spreadsheets, often for, business reports or compilations of data that people want to present to us, about, you know, someone's earning capacity or the income or the, usually it will be bank records. So one of the best ways to do it is to just go back to basics, do your see if it's a document that's self authenticating. Is it one that was produced by the government? Is it a reliable one? If if it if so, then what you can do is to, get a certified copy of that document. Another way is if you have the most amount of time possible, you can get the spreadsheet or the document, do a request for admission, and have the other side admit that this is, a true and correct copy, of the item. So that way all of that's off the table and everyone could use a little less stress when it comes to trial time. So if you have that done in advance, that's perfect. If you don't have time to do it in advance, you just have to remember, why the document is coming in. What is it being used for? Documents in and of themselves are not testimonial, but you get into a few tricky issues. And I'll let judge Manoukian take it from there because he's the he's the man. Thank you. I don't know how much. Again, when I see a spreadsheet, if it's an accountant that prepared a spreadsheet in a family law case, in a business law case, Yep. any any civil case, somebody is gonna authenticate it by saying, I'm the accountant. I'm the book keeper that made these entries, and this is how I do it. Now certain documents are self authenticating. If it's a government document, it still doesn't hurt to have it, stamped, saying that it's an official document. And that's probably prima facie evidence of what, the document's supposed to represent. If you know about it in advance, if you're the opposing side, you what you would do is wanna depose that person or find out the bona fides of that document, if it's really a document made in the course of business. Bank records, for example, when you subpoena credit card records or bank records, those are pretty much easy to figure out. Someone will testify on behalf of the bank. This is how we keep the records. We we receive data. The data is entered contemporaneously into our system, and this is what, the record produces. In pretty much any other situation, if it's a business case, someone is going to testify that this is the document in question. It's like a photograph. You know? You don't introduce a photograph just by showing a photograph. You have to have somebody testify to say, yeah. That's the way the intersection looked at the time the accident happened, And that's all they need to say. They don't need to say anything else. They don't have to take the picture. They don't have to say when the picture was taken. That's that's the way it looks. It's that simple. Is it a fair and accurate representation? Exactly. That's that's the question. And if you have any doubt about it, do your own work, if your opponent tries to foist something on you. But that's why we have pretrial discovery. When the opposing witness is on the stand, that's not the time to start doing your discovery. Thank you, your honors. Ted, since lawyers come to you with the how do we do this, How do we do this when it comes to spreadsheets in court? Sure. The the, we did it depends on the spreadsheet, of course. Some spreadsheets, we you know, if it's just a simple table that might be able to be print out or a graph or something, you know, product of a spreadsheet, that might be able to be printed, page stamped, put a trial exhibit sticker, and what have you, and and get it into evidence that way. If it's something more complex, you know, we see sometimes spreadsheets with 20 or 30 tabs on the bottom, and then and it takes a a ridiculous amount of navigation to get where you need to be in that particular part of the trial. Then that's what well, that's that's where people like me come in, to do the trial presentation end of it. And then, counsel will, be speaking to the witness, and the witness will say, well, if you can go over to, you know, the the tabs that says, smoking gun, and then, go into column, you know, column a and and row one twenty three, and then we'll actually go through that, that physical exercise with the actual live spreadsheet in trial and, deal with it that way and and zoom in or whatever. One thing I'll note is make sure that you don't have the auto save feature enabled because if you do, you just modify the evidence, which is probably not a good thing to do. So if you're gonna deal with a copy that might actually get put into evidence, and that would be with a large spreadsheet like that, That would be most likely the electronic version on the thumb drive marked as exhibit whatever it was. Thank you, Ted. Judge Nohara, are you seeing spreadsheets coming in in in your courtroom? And if so, how are they being offered and and used? Specifically, spreadsheets per se, as in financial spreadsheets, not so much. What we see are spreadsheets of location data, I guess, is the best way to put it, where they will get hundreds of thousands, I shouldn't even say, thousands of pages from a provider that will have all of the longitudes and latitudes, and it's all set up as spreadsheets. With us, the spreadsheets really do need to be interpreted. It's not as intuitive as financial spreadsheets that you can everyone kinda look at numbers. We all have a certain knowledge of numbers. A lot of people don't have a even a passing kind of, insight into longitudes and latitudes. So you need an you definitely need an expert to interpret it. Getting the data, the raw data before the jury isn't as isn't as important as the interpretation of the raw data. So for us, we don't even concentrate a whole lot on what they do with spreadsheets. It's kind of accepted as long as it's got a certification with it, and then it's the interpretation that they really go after. So a question came in that goes back to the photo question. And the question is, is there a requirement maybe declarations that you, have vetted the pictures before submitting? And if we could, start with, Judge Manoukian, what are your thoughts on on the declaration question? I, it's a very good question. I, I have a standing order that if you're going to show something to the jury, whether it's a document or a photograph, show it to opposing counsel first. And, most of the time, if you have real pros on both sides, they don't have any objection. They've seen it already. That that's the main, hurdle to cross. You know, there are people who think they're discovery gurus, and they're I'm sorry to say they they aren't. And, if you do a good job in discovery, asking a simple question, Please identify all photographs you intend to, or you can't say intend to introduce into evidence. But please, identify all photographs that you contend show something, or identify all documents that you contend support your third cause of action. If you do that kind of work beforehand, you shouldn't have any surprises. If you didn't ask the right question, and I always have in my standing orders, if you're going to object something on the, on the basis that it wasn't turned over in discovery, you have to show me that you asked for it first. Like I said, with the real pros, it's not a problem because I never see them in discovery fights in court. And and they will meet and confer and exchange documents and photographs and, go to it. Some of the best cases I ever had, in fact, what I just finished, everyone shares exhibits. Everyone one eminent domain case I have, the, lawyer for the property owner said to the public entity lawyer, hey. Can you put up your document number 103? Sure. No problem. And then the, public entity lawyer tells the, property owner, I need to see your exhibit 200, and they put that up on screen. It's, unfortunately, it's always the, outliers that cause the problems for us. But if you do your discovery work first, you should be okay. Yeah. It's judges do not write opinions congratulating people on doing a good job. There's normally a dispute. Like, it we, would, all like a gold. I just did on a family law trial where the lawyers were the extremely competent. They were profession their clients hated each other, but the lawyers were great. At the end of the trial, they shook hands and hugged each other. I I commented on that in my statement of decision. We we have another question, this time on Excel, the Excel question we just talked about with spreadsheets. The question is, even when I print a small Excel table, I print it with rows columns turned on and with an attachment of the metadata usually from the database information. The hashtag information is extremely helpful. I agree with that. I think that's a smart way to approach it. And so who whoever does that, good job. I I commend you on on that approach. So Ted raised an interesting question on our planning for this, and that is how parties are offering radiological studies. And, Ted, you you raised this issue. It's a good issue. It's a complex issue. Why is it a complex issue in in any personal injury case? Well, because they exist in almost every personal injury case, at least the one that might involve some, some some part of the body that, use some radiological film, you know, be it MRI, CT, X-ray, or what have you. And, you know, we're, you know, we're kind of away from the thing of bringing in the the plastic actual X-ray film and putting up a light box and and and that sort of thing. I mean, it's it's been a number of years since I've seen that. But yeah. So it is it still exists though. And the way it exists now, the way it's produced by the imaging company or custodian or whatever is is usually on a CD ROM. And so what they'll do is they'll put all the files on that disc. You can put it in your computer. You can look at it and what have you. You can have an expert witness, or your examining, treating physician, whomever, up on the stand, and and they can possibly work through that and what have you. Again, even better is the whole thing about, well, showing it to the jury is one thing, having it in evidence is another. So it's a really good idea if you can work with that with that doctor or or expert and get some screen grabs ahead of time, those you can print, date stamp, mark, and admit into evidence, and there they sit there they live. Versus handing the cord a CD ROM saying, well, guess what? Computers don't have CD drives anymore. What are we supposed to do with this? So, you have to keep keep in mind keep you know? And and, again, a lot of courts have different, resources and access, to different equipment and and technologies. So you'll you'll need to coordinate with the court and or clerk or or whomever to, to make sure that you're getting it the right format, into evidence. Yeah. My, my dad was an orthopedic surgeon. When he retired in 1984, I got a shadow box. And, I used it until about 1990 when all of our courtrooms got shadow boxes in it. Now here we are in the middle of the twenty first century, and, we don't have shadow boxes in the courtroom. But like, Ted said, you get them downloaded on a CD ROM, print a picture of it, print a big picture of it if you want to. You can put it on a slide that you show on the court, big screen. Very simple. Remember in the old days, X rays used to take about ten minutes to develop? Now now they developed in real time. So they take the picture and boom, it shows up on the screen right away. And printing them out is also really important too because, how is the jury supposed to see that when they go back to deliberate? When I had a criminal department, the attorneys either had to have a printed out version, which was the mark and entered exhibit, or they had to have it on the film but have a blank, a clean laptop or a clean tablet that had nothing on it but just the capability to show that exhibit. Yeah. I'll I'll note too briefly is that another issue that I see frequently is, somebody will, you know, say, hey. I'm gonna I'm gonna, send you we're gonna FedEx all these, CDs that have this imaging studies and what have you because we can't do anything with them. Well, actually, just FYI, you can copy all of those files onto a computer folder, and you can put the entire package in there in a folder. It's maybe not designed or or simple to do or whatever, but it can be done. It's not that hard. So, question, like, that just came in about thumb drives. Have any of you seen thumb drives be, you know, switched to a read only format, for when they're actually admitted as evidence? Anything along those lines? I I think that's a good idea, if it's read only. Once we get them, the clerk keeps them and nobody nobody touches them. And if I insert it, I make sure I don't do any changes to it. Yeah. And in fact, I I I'd like to ask my judicial colleagues if people do have, blow ups and things like that. Do you require that they, lodge a photograph of it, on eight and a half by 11 papers so the clerk can, file them? I don't. I just go with whatever is shown to the jury from the computer or from I I should say from the thumb drive. The thing is that all of our thumb drives, because as I said, it involves a lot of digital data from various sources such as Saudi companies and whatnot, everything is read is read only. We everything is locked. That is that absolutely I seen issues where the clerk's office, there has been problems where in one disc that they sent to the court of appeals, the disc was blank. Nobody knows what happened. So, I mean, everything is locked locked and loaded so that it can't be erased accidentally. It can't something. it can't be tampered with in any way. That's a true story. We're still dealing with that here, and, I'm not sure what they do. You know, I I think, there are thumb drives, that do have a sliding. button, so that you can't alter what's on there. And it wouldn't hurt to put a piece of Scotch tape all the. way around it to make sure nobody does anything to it. let's get into some of the traditional evidence issues that we can see with challenges to ESI. And, you know, the the normal ones would be lack of foundation, relevance hearsay, maybe a transcript's needed. And, judge Nicholas, you raised the wonderful. complex issue of hearsay. Can you share with us why you brought this to the forefront? Yes. Because everyone always objects. Objection. Hearsay. And I was like, it's a it's a it's a document. It's a thing. And in order for hearsay to be applicable, remember, it has to be an out of court statement and that statement has to be by human beings. So if you look at the case of People versus Goldsmith, it it definitely addressed, that issue. That in order for something to be hearsay, it does have to be, a statement by a human being. So just, because it's a it's me, it's there. I recall there's a, murder case in which the only witness was a parrot, and the parrot was copying the screams of, supposed the supposed victim. I'm I'm trying to find the site for that. And, sniffing dogs, you know, when I was at the airport this morning, now TSA has dogs going up and down sniffing people's bags. Is that a hearsay statement? Well, no. A dog is not a person. A parent is not a person. Right. There's other issues, of course, you know, maybe the parent was watching a TV show or something that Yeah. Yeah. Yes. And it has. to be tested. So which brings in the issues of videos and audio clips. And because, again, people are running around with phones that take amazingly, you know, good quality video now. And how do we get that in? And and, judge Nicholas, you raised the the issue of the offer of proof and the evidence rules. Can you illuminate that for us, please? Sure. Absolutely. For civil cases and for family cases because family, follows the civil rules procedure, pursuant to California rule of court 2.104. You can have prior testimony. That can be a transcript of a recording. It could be a deposition. The best practice is to have that transcript or the copy of the recording and get it to opposing counsel at least five days in advance, and then, that'll be there available for you to use. So you'll need to get a a transcript. Alternatively, if you can't do that, then meet and confer with opposing counsel, ask them to allow the presentation of the transcript within five days. So, if for some reason you mess up or you got something at the last minute, we've all been in a trial where the judge, I'm not gonna mention any names, judge Manukian. Let's see. Depose a person during the trial. When you're deposing the person during the trial, you can say, hey, judge Mnookin. We just deposed this expert last night, by your order. Can I present the transcript of their testimony that I intend to present today within five days? And California rule court 2.104 a two lets you do that. So don't don't fear. If you've got this prior statement, it can still come in. If it's other recorded evidence other than a statement, the best practice with the transcript is to have a copy and get it to opposing counsel at least five days in advance. If you can't do that, then the alternate is to meet and confer with opposing counsel and ask the court to allow the presentation of the transcript. And it's within the court's discretion to do that or not, under 2.104 b two or ask the court to find good cause that a transcript is not required. Because sometimes you don't need a transcript. It it's very clear what's being said or it's of such small, duration or it's foundational for something else that you probably don't need a transcript. So, you know, for instance, if I get a videotape and it says, you know, I hate you, Bob, or I'm going to kill you, Patty. It's pretty clear from the video, and I'll say it's not necessary because it's such a small duration. I'll I'll briefly note the best evidence rule is also key here, in that some transcripts that I've seen literally say one thing and the actual video says another. So. the best evidence would be the actual video versus the transcript that was trying to interpret what was said on that video. No. Before I ever play a video that has a transcript, I read the Calgic on that one, the civil jury instruction that talks about the best evidence is the video. The auto is just there to help you. And a lot of times when they object to the, audio, they sometimes wanna get the transcript admitted into evidence, and it's like, no. It's merely an exhibit. The actual evidence is this the, the recording itself. And a lot of people there's been a lot of people will be like, well, judge so and so lets that happen and whatnot, but that's not really Yeah. It doesn't work. very important, I think, that you read that instruction before you, you put you put in any kind of video or anything that has a transcript with it. And the attorney, is. always asking. Which which. brings know, us to are the depositions now are being video recorded and, using, them in trial, I I've seen the the videos with, deposition transcript lines rolling with the video. Again, if everybody has it beforehand and they have a chance to look at the video and the, dictation with it, transcription with it, usually no problem. It's when you spring it on somebody at the last minute. And, you know, if there's an issue about people playing fast and loose with the rules of evidence, judge has to intervene, and and that's that's the lay thing. So the best thing you can do I always I've I've been teaching civil procedure at, Santa Clara Law School for twenty years. They rejected me for admission twice, and they asked me to teach there. And one of the top 10 tips I tell them is the opposing counsel on the second biggest case of your life is gonna be the trial judge on the biggest case of your life. So be friendly. You know? One thing about most lawyers, they have a long memory for trivial insults, so be On that, judge Nohara, you've dealt with RingCam footage in. criminal cases. Can you tell us a little bit about that, as we, you know, focus more on video? Sure. In fact, just about every murder case I have done has had some form of ring camera footage on it. And it's amazing because there's so much of it out there that law enforcement, whether it's the private, whether it's the sheriff's or LAPD or any kind of a smaller agency, have some kind of now preprinted form. When they go out, they have an individual who is actually designated to go into a neighborhood and determine who has Ring cameras, and then they go to each area where the Ring camera is. They have to determine what the who the provider is, what the platform is, and there's a form that they fill out for this. It has the platform, the provider. It has, they have a little device, an app that checks it for the time that it is now versus what time it says stamped on the video itself. And if there's a change, they have all of that written so you know what whether it's a few hours the same, or if it's a few hours before, a few hours after, a few days before, a few days after. All of that has to be recorded, and the individual who filled out that form has to come in to help authenticate the Ring camera footage. That individual will usually watch the Ring camera footage and then determine if in fact it very much mirrors what they see out in the real world in real time. If it comes from a a accepted platform, that helps with self authenticating. But even though I put self authenticating there, everything has to go through number one first, which is it has to be checked for time stamps and, through an independent source. People often object, to the Ring camera footage because of two things that often come up with them. First of all, Ring cameras are often used to identify the perpetrator. Problem is that, there are any juror can look at the ring camera and say, well, I think that looks like the defendant, or I don't think it looks like the defendant. So if you have a witness coming in saying, I've identified the defendant from that ring camera, it has to be someone who has known him, not someone who just seen a picture of him. They have to have had multiple contacts with them, talk to them. They have to lay a foundation that way, and that will be a completely different officer from the officer or witness who pulled the Ring camera and determined that the footage was appropriate and accurate. Another problem that we have into, we get a lot of objections from, are sometimes when a video isn't that good, a witness will try to tell you what they think it says, and they'll they'll start basically narrating an entire story around that video. And I think a lot of times attorneys don't know how to object to that. And the only way that you can actually go into what is actually being shown on the video in in any kind of detail is if it has some kind of relevance to something that they see on the video that you can put a lay opinion on. An example of this is I had a trial recently where an individual jumped out of the car, and he had white things on his hands, and he shoots into the other car. And the defendant, when he was caught, had white bandages on his hands from some kind of a burn he had had previously. So the officer who knew him testified, I knew he had these bandages on my hand. And when I saw the video, it ties into that. But a lot of times, they don't realize there has to be a tie in. And as a result, they'll start giving this whole narration of a video that might not be that good and anyone could interpret in their own way. And it's important for attorneys to know to make those timely objections. And I'm sorry I didn't give you guys this earlier, but there is a case that I just found today that I thought talked just about this issue in in eleven o one b 11 o one a setting. And it's People versus Phillips, and it's 75 fifth six forty three. And in it, there's a very detailed discussion about how you have to tie in what a lay opinion or a lay opinion into what it is you're telling or narrating in the video. You can't just narrate a video. So I think that's super important. We're getting close on time, and we have some questions. So we're going to engage the expedited trial rules here. So, judge Manoukian, you raised this issue of there was a trial in Santa Clara County with a Google Map and a Los Gatos case that was one of the quickest jury verdicts ever. Well, the jury? verdict well, this was a murder case. Two businessmen, engaged in selling restaurants to each other, And it turned out that, there was a femme fatale between them, and, one got jealous of the other, of the other guy. And, victim was found dead in an alley. Well, right behind his condo. And, Los Gatos cops come to the scene, and, one of the cops, sees a dumpster about 30 yards away. And what most Los Gatos cops do when they see a dumpster at the scene of a murder, they he jumped in it and started unwinding paper. And he found a Google Map that had directions from a location in Pasadena to that particular condo. And it had the web address at the bottom of the, of the map. The cops in, Pasadena got the guy. They were waiting for him by the time he got home. When we got caught, he confessed everything. Yeah. This guy hired me and, you know, paid me $15 and boom. I'm glad bad guys aren't say, smart. if you're gonna commit a crime these days, don't use a semiautomatic pistol. They eject shell casings, and Mhmm. don't drive a new car. Don't use a cell phone. Don't use Google Maps. Don't use the Internet. Drive an old car because the newer cars have devices in them that can say where you went and how far you drove. Drive an old car. Use a revolver. Luckily, They may need to check shelter. won't won't do that. So, Yeah. We'll kill people. Yeah. I know. live the golden rule. Judge Nicholas, you you raised the issue, about websites that can show income and divorce cases. Can you tell us about that? Yes, absolutely. I love this quote too by Wendy Liebman. My mother always said, don't marry for money, divorce for money. And that's probably the, that's generally the issue that we see in family court a lot is that one spouse will claim that the other has hidden income or they're making more money than they're claiming for purposes of spousal support or child support or asset division. And one of the ways that you can, refute this issue is by going to a digital archive like the Wayback Machine. There are some other ones that you can use, and they will look at websites to see what's there. Because sometimes people will say, hey. I made $15,000,000, or here's what I charge for you know, if you're a doctor, here's what I charge for physical exam. And it'll have it linked for that period of time and, so that way you can get that information. And then it can also capture the metadata of images. So if you go to a website and you find the smoking gun website, then make sure that you capture that image with the appropriate metadata. Thank you, your about. laying the foundation for the Wayback machine? I've had some issues with that. I'm sorry? Yeah. Issues, about foundation for the documents produced by the Wayback Yes. There are other digital archives that you can use as well, but there are experts that that do testify about, data retrieval and archival retrieval. Machine. Yeah. Oh, That's it always helps to have the right expert. Yes. yes. let's, judge Nahara, you've raised the very fascinating question about cell phone tower data, and this is gonna be more in the criminal context. But what is this? And we're gonna have to do this expedited. But how is this coming in? This comes in through, the cellular provider. They have to be first of all, they're they're they have there is a warrant that has to be, basically issued to get the docu the all the documents. They usually come in on a disk. They are, subpoenaed in or we get the cal EPCA warrant. A California EPCA warrant is a California, electronic protected communications act warrant. And you can get the cell phone data either from the cellular company or off the phone. If you have the actual hardware that the individual had on them at the time of the incident, you can pull it off with some kind of a program, but you need two warrants. One to get the phone, one to get the to get the information off the form. When you get it, it comes in massive thousands of pages, as I said before, thousands of pages of documents. A lot of it has to do with longitude, latitude, or, different things that have been posted. I broke it up like this. I'm gonna say this really quickly because I know we're gonna run out of time. Active data is when you're actually on your cell phone, and they can pinpoint where you are, what time you made the phone call, and who you're talking to. Active passive is when you text or you've, emailed or you've loaded something onto the Internet. It was active at the time, but now it's passive and they're going to be pulling it off. Passive, people don't even know about passive. Everybody has passive data going all the time. If you are holding a phone, any app that is downloaded on that phone, even when you say don't share my location, is sharing the location with the cellular phone company. And so it is going to a particular cell tower, and so they can pull all of the passive data off of that and tell where everybody is and just dot the location. And then the hardware, of course, is pulling it right from the phone. That's the information that you get from people who've posted their photos or their emails or not posted, but they've sent out emails or, any kind of instant messaging. So that's all the stuff you get from the cellular data that creates cell site analysis. And, as it's, kinda going on to the next one, people object to that because it the biggest objection, of course, that we have is foundation. And, oh, Now. cups are. No. No. That's okay. The, the objection is foundation. Now, obviously, it's gonna come in under a business record, but you need the right people. You need, the custodian of records of the provider. Though, oftentimes, it is stipulated too because everyone pretty much knows, hey. These are our cell phone providers, and these are the records. And both sides will will get an expert to analyze those. Usually, on law enforcement, they will get an FBI agent or someone who is, schooled and taught and is a in the FBI, they have a team called the cellular analysis survey team, and we'll talk about about that in the next slide. But, basically, you need a the person who wrote the warrant, the custodian of records, and that case, Zavala talks about why you don't need there's often an an objection about okay. The the and Zavala, there's often an objection about whether the program that they use to run it in the cellular service, is accurate and true, and should it should there be some kind of a Kelly Fry objection? All of that has already been resolved in Garlinger. People versus Garlinger has resolved all of those issues as has Zavala. Zavala talks specifically about cell phone data, and Garlinger, the case that's cited there, talks about why it is relevant, why there's no it it continues the Kelly Fry argument to explain why it isn't a Kelly Fry argument, and why it all comes in under three fifty two. So it's a great analysis, and I'll let you guys read that. Excellent. You laid the. oh, go ahead. No. Go ahead. You're good. Alright. Thank you, your honor. So we only have a couple minutes left. I just wanna highlight we have some articles that that were recently written about trial presentation, but one of the big points that we wanna make is go to the courtroom, talk to the clerk, find out if you can come in and practice, see how the technology works, and, yes, we can share slides afterwards. And with that, we we wanna get to some of the questions that we have. So people have been very playful. And and so one one question is, you know, any other tips on from the judges on committing crimes? The answer is no. No. That was for fun. We do not encourage that. That that was for fun. Chris But we also says that how how to Chris Rock has a video on how to keep from getting beaten up by the police. He said, number one, obey the law. Yeah. Don't do that. Make good life choices. Another question. So we have a lot of people who were agreeing with the idea about, images coming in and printouts. So there's one question that came in about, ESI protocols, which we'll mostly see in in federal cases, but that person's seen spreadsheets required as natives, which is, you know, part of the deal. But do natives, require separate authentication? And I wanna say it depends. I would not stipulate to authentication every time, but there there could be times when you do that. But I would still want a, that to come up. Another question is, do judges often ask to see Excel formulas? And, have any of your your honors asked to see Excel formulas? I, I have not. No. No. I have not. I can only think that it might be relevant if. you're doing a calculation, to divide an asset and you're using a formula. for that, but, no, I haven't. Okay. I've I've. seen that in some large construction cases where they're trying to, calculate how you get x amount of work hours, you know, into something or whether, and we'll have to actually, working with the live spreadsheet, go in and open up the formula and, you know, click on the the active, cells and and show what it actually how did they get there, or did they just plug in some number randomly? Thank you, Ted. So final question for all the audience. Are there other topics you would like us to cover? Put them into chat. We'll do our best to see is this something we can cover because we wanna be providing useful information to you. And with that, I turn it over to Jacqueline. Yes. Thank you so much, Josh. Thank you for all of our speakers here. This is such a fascinating conversation. It was so cool just hearing all of your knowledge, and and thank you all for sharing it with us. Thank you all for everyone who joined us today, and we hope you have a great rest of your Thank. Great one. Bye. Right. Take care. you. Goodbye. Bye. Right. Yeah. Thank you.