Commercial Litigation and Arbitration

Purged Email (Round 2) — Best Evidence

Our May 3, 2007, posting discusses United States v. Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich. April 27, 2007), a drug conspiracy prosecution in which the Court admitted a DEA agent’s transcript of emails on a cell phone after the messages had been automatically purged while the phone was in government custody. The April 27th opinion dealt with authenticity. More recently, the defendant in contended in his new trial motion that the Court erred in admitting the transcript of the emails because the government had not established that the originals were lost or destroyed pursuant to Fed.R.Evid. 1004(1) (the best evidence rule), which provides that an original is not required when "[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith...." The Court rejected this contention on May 15, finding, inter alia, that the defendant failed to carry his burden of establishing bad faith and that the DEA agent’s testimony that the emails were unavailable, and that they could not be obtained from internet service providers, was sufficient to establish unavailability. United States v. Culberson, 2007 U.S. Dist. LEXIS 35276 (E.D. Mich. May 15, 2007).

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