Category Archives: BW’s Journal Publications

Election Fraud Complaint

STATEMENT OF FACTS
(attachment to Election Fraud Complaint filed by Bill Wohlsifer against George Sheldon on August 4, 2014)

The qualifications for Florida attorney general are set forth in Article IV, Section 5(b) of the Florida Constitution, as follows: “When elected, the governor, lieutenant governor and each cabinet member must be an elector not less than thirty years of age who has resided in the state for the preceding seven years. The attorney general must have been a member of the bar of Florida for the preceding five years.” Art. IV, § 5(b), Fla. Const.

The Secretary of State must give great weight to the second quoted sentence above, and must not rely on the plain meaning of words such as “member” and “resided” but must look to the meaning applied to these words and terms as used within the Rules Regulating the Florida Bar,

created by the Florida Supreme Court.

When I, the undersigned complainant, filed my qualification papers for Florida attorney general on June 17, 2014, I attached to the Candidate Oath, a written certification from the Florida Bar, signed by the Bar’s Members Services and Records Manager on June 12, 2014, certifying that I was “an active member of The Florida Bar in good standing.” Although the Division of Elections candidate manual does not require the inclusion of a Certificate of Good Standing from the Florida Bar, I obtained and included one on my own volition, as I am accustomed to do so when applying for various law practice admissions and certifications. The Secretary of State must ask himself when reviewing this complaint the following question: “When George Sheldon filed his Candidate Oath on June 18, 2014, could he have presented a Certificate of Good Standing from the Florida Bar at that time?” The answer is no, Mr. Sheldon could not have produced a Certificate of Good Standing on June 18, 2014.

Mr. Sheldon does not meet two out of three of the constitutional qualification mandates. He has not maintained his bar of Florida membership (nor practiced law in Florida) for at least three out of the five years preceding the candidate qualifying period that ran from noon, June 16, 2014 to noon, June 20, 2014. Mr. Sheldon abandoned his Florida Bar membership by failing to maintain his continuing legal education requirements (CLER) for the three-year reporting period that ended on May 31, 2014. Subsequent to the candidate qualifying dates he made an expo facto claim of exemption from the reporting requirements, by completing a bar form stating the he was a member of a class of “Non-resident Members.” See Rule 6.02(f) of the Rules Regulating the Florida Bar (2014) (attached hereto; also attached hereto please find an unsigned CLER Exemption Request Form). Mr. Sheldon fails to meet one or more of the three minimum requirements for attorney general candidacy.

On July 7, 2014, The Bar’s Executive Director, John Harkness, Jr., wrote to Mr. Sheldon and informed him that his bar membership had lapsed. More specifically, it was reported that Mr. Harkness informed Mr. Sheldon that, “A delinquent member shall not engage in the practice of law in this state and shall not be entitled to any privileges and benefits accorded to members of The Florida Bar in good standing.” One such privilege is meeting the constitutional qualification mandates for a candidate to run for the Office of Attorney General. Indeed, the Florida Supreme Court requires that The Florida Bar treat all members delinquent in their CLER

requirements in the same manner as members delinquent in the payment of bar dues. Amendment to Rules Regulating the Fla. Bar (continuing Legal Education), 510 So. 2d 585, 588 (Fla. 1987)

In mid-to-late July 2014, Mr. Sheldon took action that resulted in his Florida Bar membership being reinstated. Whether such reinstatement has a retroactive effect solely for the purpose of prior bar membership during the term of delinquency may be a question of law. However, our state’s case law contains many incidences where legal action taken by an attorney during a period of the attorney’s ineligibility due to non-payment of dues or failure to comply with CLER requirements was reversed by the court for being non-sequitur or (by analogy, only) for the unlicensed practice of law (citations omitted).

George Sheldon was a not member in good standing, not qualified to practice law in the State

Fla. Bar Re

of Florida, nor “entitled to any privileges and benefits accorded to members of The Florida Bar in good standing” throughout the 2014 qualifying period that ended at noon, June 20, 2014. Even if his claim of non-resident status subsequently cured his non-compliance with the Bar’s CLER requirement, it would not cure his ineligibility at the time of qualifying.

The duty to seek a claim of exemption is on the bar member. “A member who seeks an exemption form the CLER under sections 6.02(f)(1), (2) or (3) must file a CLER exemption request form. [Bar] Staff will review and confirm eligibility within 10 days of receipt of the request. If granted, the exemption will remain in effect until the member is no longer eligible.” Rule 6.02(f) of the Rules Regulating the Florida Bar.

Mr. Sheldon did not claim such exemption until after he was no longer eligible to practice law and until about 9 months following his relocation back to Florida. The bar member’s exemption does not become effective until after the claim for exemption is made and approved. Id. Thus, even if the exemption cured Mr. Sheldon’s ineligibility to practice law, strict compliance with Florida’s constitutional qualifications requirements would not relate back to the qualifying period. Simply put, his failure to timely claim the exemption that he was granted in July 2014, for a non-resident status that ripened in October 2011, does not change the past. Again, our case law contains many examples of harsh results where latter cured membership defects do not cure the attorney’s conduct that occurred during the period of ineligibility, and often at a huge expense to the attorney’s innocent clients. For example, see Third Degree Films, Inc. vs. Does 1-259, et al, Consolidated Case 4:11-cv-00570 (N.D. Fla., Feb. 16, 2012) (Tallahassee Division) (where 3,547 defendants were dismissed from a mass lawsuit because plaintiff’s counsel was not properly admitted to practice law in that court at that time). (N.B. The undersigned complainant/attorney filed a motion that lead to said dismissal. As such, the complainant has case law on hand relevant to a bar

member’s ineligibility to participate in benefits and privileges of bar membership available for

submission to the division, upon request.)

Even if the Florida Bar’s July 2014 acceptance of Mr. Sheldon’s claim of exemption from the Bar’s CLER reporting requirement had some manner of retroactive application, which is denied, he based it on the “Non-resident Members” exemption provided under Rule 6.02(f)(3). By his own admission the candidate fails to meet Article IV, Section 5(b)’s seven-year’s preceding residency requirement. It is clear that the framers of the Florida Constitution wanted our attorney general to

have an immediate connection with the state and with the Florida Bar in the year’s immediately preceding service as the state’s chief legal officer. The infinite wisdom of the framers cannot be questioned. Mr. Sheldon was not in residence and his bar membership had lapsed at the time he purportedly qualified for the office sought. The two cannot be reconciled.

The complainant below takes no pleasure in filing this complaint, but does so for the benefit of the Secretary of State’s review and preservation of the integrity of our electoral and qualifying processes. Mr. Sheldon’s out-of-state residency was for an honorable purpose, as he accepted a non-elective agency employment position as Assistant Secretary for the Administration for Children and Families at the U.S. Department of Health and Human Services under Secretary Catherine Sibelius, prior to Catherine Sibelius and George Sheldon’s October 2013 resignations following the failed rollout of www.healthcare.gov. However, Mr. Sheldon’s personal choice to surrender his Florida residency and relocate to or near Washington D.C. from 2011 to October

2013, respectfully compromised his qualifications to serve as Florida’s attorney general in the years immediately following. Indeed, his relocation was deemed “permanent,” as that term is used in the Rules Regulating The Florida Bar. He may qualify in 2018, but not in 2014.

The specific Florida Bar CLER exemption that Mr. Sheldon claimed exemption under is Rule 6.01(f)(3). Rule 6.01(f)(3) applies to Florida Bar members who “permanently resided outside Florida” during the reporting period. Rule 6.01(f)(3) provides as follows: “Non-resident Members. A member who has permanently resided outside Florida, who has not practiced law in Florida, or provided advice or services on Florida law during the preceding year, may be exempt from complying with the CLER.”

It is reported that Mr. Sheldon claims that there is no problem with his qualifications to run for attorney general in 2014. See http://miamiherald.typepad.com/nakedpolitics/2014/08/discord- with-democrats-sheldon-says-hes-staying-in-ag-race.html#storylink=cpy downloaded on August 3, 2014.

It is further reported that Mr. Sheldon obtained a legal opinion on the present issue. Id. The alleged legal opinion has been quoted as follows: “Accepting an appointment to serve our nation in Washington D.C. did not require George to give up his Florida residency. George Sheldon is qualified under Florida law to serve as Attorney General.” Id.

This legal opinion is also misplaced, as Mr. Sheldon accepted a position as a bureaucrat, not as an elected officer. Moreover, the qualifications for attorney general, unlike most candidacies, are uniquely dependent and inseparable from The Rules Regulating the Florida Bar, which provide only limited exemptions to its continuing legal education requirement. The full list of Rule 6.02(f) exemptions are as follows, of which only exemption (3) applies to Mr. Sheldon:

He claims that he maintained a home in Tallahassee, paid property taxes, was registered to vote in Florida, and had a Florida’s driver’s license. Id. Mr. Sheldon’s reliance on these indicia of residency is misplaced. Residency is defined by the Florida Bar for the purposes of this review, not by splitting hairs between the terms domicile and residency; an argument generally reserved for federal tax reporting purposes. (Arguably, he should have changed his voter registration when he left the state to accept the non-elective out-of-state agency employment that he did.)

(1) Active Military Service
(2) Undue Hardship
(3) Non-resident Members
(4) Full-time Federal Judiciary (5) Florida Judiciary

(6) Inactive Members
(7) Pro rata Credit Hours

The same news report referenced above quotes Mr. Sheldon as allegedly contending that, “My situation is the same as with members of Congress, members of the military, ambassadors, and others who perform service to their country in Washington or overseas, while Florida remains their home.” Id. Again, Mr. Sheldon’s relies on pure conjecture rather than a plain reading of the Rules Regulating. Rule 6.02(f) shows that Mr. Sheldon is correct as to “military” (1) but incorrect as to “ambassadors.” He is partially correct as to “others who perform service to their country in Washington or overseas,” but only if they serve as a federal judge (4) or men and women engaged in active military service (1). Neither of these exemptions apply to Mr. Sheldon. Again, only the permanent non-resident exemption applies; an exemption that he delinquently applied for 9 months after completing his out-of-state residency.

The same news report referenced above further quotes Mr. Sheldon as allegedly contending that, “Lawton Chiles, for example, served the people of Florida with great distinction in the U.S. Senate from 1971 to 1989, and then returned home and was elected Governor in 1990. My circumstances are no different.” Id. This statement is also incorrect, as it fails to give proper weight to the second sentence in Article IV, Section 5(b), i.e., “[t]he attorney general must have been a member of the bar of Florida for the preceding five years.” Art. IV, § 5, Fla. Const. Lawton Chiles ran for governor, not attorney general. Also, Mr. Sheldon’s comparison to Governor Chiles disregards the fact that he allowed his bar membership to lapse. Nor did Governor Chiles opt to take advantage of an option to reinstate his ineligibility to practice law in the State of Florida by voluntarily signing a bar form wherein he claimed permanent out-of-state residency for more than the past three years.

George Sheldon did not have to make the expo facto claim of permanent non-resident member status that he made subsequent to the qualifying period. At the time of his absence from our state he could have continued to meet the continuing legal education requirements from out of state, as many attorneys do when their occupation takes them outside of Florida. However, Mr. Sheldon intentionally chose not to continue with his CLER requirements and intentionally chose not to timely report his out of state residency to The Florida Bar. These defects are not curable.

As stated in the opening paragraphs of this complaint, the Secretary of State must give heavy

weight to the second sentence contained in Article IV, Section 5(b) of the Florida Constitution. The Division of Elections must rely on the definitions and usage of words such as “member” and “resided” by applying the meanings used in the Rules Regulating the Florida Bar, created by the Florida Supreme Court, as these words and terms apply to its bar members, and not rely on the plain or ordinary use of these words and terms.

In conclusion, Mr. Sheldon cannot have it all three-ways: Either he failed to meet the 7-year residency requirement, or he failed to meet the 5-year Florida Bar membership requirement, or he

 

was not qualified to run at the time he filed his Candidate Oath on June 18, 2014. The complainant signing below suggests that all three prohibitions apply, and that Mr. Sheldon must be disqualified as a candidate for Florida attorney general, 2014, as a matter of law.

___________________

August 3, 2014

Bill Wohlsifer

Libertarian Candidate for Florida Attorney General

William R. Wohlsifer, PA

1100 East Park Ave Ste B Tallahassee FL 32301

Page 5 of 5

“Certifying” Documents via Third-party Software: Binding on the Court?

William R. Wohlsifer, and Tyler L. Thomas (August 27, 2013)
The Florida Bar Journal – September/October, 2013 Vol 87, No. 8. 

“Does the use of third-party software to certify documents or signed contracts outweigh the time and costs allocated to the process?” is a common query from corporate clients. As an attorney, a more pertinent question in need of answering would be: “Is the third-party software certification process necessary in order to meet today’s evidentiary standards regarding electronic copies of documents as business records?” The specific focus of this article is the admissibility into evidence of the conversion of original paper documents and contracts to digital image files, then back to paper form for use in court. Although digital image copies are widely recognized at federal and state levels to be admissible, in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), the court identified a “growing recognition that more care is required to authenticate . . . electronic records than traditional ‘hard copy’ records.”1 Determining the answers to these questions requires an examination of federal and state laws and court precedence in place regarding use of digital image copies as evidence.

Uniform Photographic Copies of Business and Public Records as Evidence Act
One of the first federal laws to recognize the evidentiary issue of photographic copies was the Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA)2 enacted in 1949. The UPA authorizes the destruction of original paper records that have been accurately reproduced.3 Codified in Title 28, Ch. 115, U.S.C. §1732, it provides:

If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original. This subsection shall not be construed to exclude from evidence any document or copy thereof which is otherwise admissible under the rules of evidence.4

All original paper copies and digital copies of documents and contracts or other documents that are responsive to a filed or reasonably foreseeable lawsuit should not be destroyed, even if such destruction is part of an organization’s established records retention policy as the court stated in In re the Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598 (D.N.J. 1997).5

The Lorraine Analysis of Fed. R. Evid. 901 and 902
While documents can be destroyed once they are copied, except for the circumstances enumerated above, the electronic copies must still meet evidentiary standards in compliance with state and federal rules of evidence. The Lorraine court took on the challenge of analyzing the evidentiary rules and case law that control the admissibility of electronic evidence.6 The court found that Fed. R. Evid. 901(a) requires that the electronically stored information be shown to be authentic by showing that it is what the party claims it to be — not a particularly difficult obstacle to overcome.7 However, the court noted that “the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation.”8

The Lorraine court further found that Fed. R. Evid. 901(b) provides examples of how authentication may be accomplished.9 In particular, Rule 901(b)(4) provides: “Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”10 The third-party software certification process does not necessarily contribute to satisfying these examples. When discussing this particular subsection, the court in Lorraine noted:

This underscores a point that counsel often overlook. A party that seeks to introduce its own electronic records may have just as much difficulty authenticating them as one that attempts to introduce the electronic records of an adversary. Because it is so common for multiple versions of electronic documents to exist, it sometimes is difficult to establish that the version that is offered into evidence is the “final” or legally operative version. This can plague a party seeking to introduce a favorable version of its own electronic records, when the adverse party objects that it is not the legally operative version, given the production in discovery of multiple versions.11

It is reasonable to expect the time-stamp feature of third-party software certification to assist a proffering party when a witness (the business records custodian) is called upon to proffer a document as indeed, the “‘final’ or legally operative version.”12 Although the certification may add to the business records foundation, inclining the court to admit the proffered evidence, it is not dispositive on the ability to overcome objections of the opposing party and your client should be advised as such. Courts may eventually expressly recognize third-party software as a self-authenticating means or at least deem it a rebuttable presumption, but they do not uniformly do so at this time.

The Lorraine court also discussed the issues surrounding Fed. R. Evid. 902 and its 12 methods by which documents or contracts may be authenticated without extrinsic evidence (self-authentication).13 Rule 902(7) provides that exhibits may be self-authenticated by “[i]nscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.”14 This method reflects the mandates of Rule 901(b)(4), but with more specificity. The court also evaluated Rule 902(11) and found it to be “extremely useful because it affords a means of authenticating business records under Rule 803(6) . . . without the need for a witness to testify in person at trial.”15 Rule 902(11) provides:

(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.16

According to the Lorraine court, the rule “was intended to set forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness.”17 As convenient as this may sound, some courts take a more demanding approach for authentication and still require a witness.


IN RE VEE VINHNEE: THE STRICT STANDARD

Currently, “there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed” and “more courts have tended towards the lenient rather than the demanding approach.”18 Since for the most part you cannot pick and choose your court, the prudent records custodian must balance the cost of preparation for the strictest court against the value of full and complete preparation. In one case in particular, In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005), the court established the more stringent approach:

The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created . . . ; Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.19

In order to meet the stricter standard for authenticating electronic business records, the court adopted an 11-step foundation proposed by Professor Edward Imwinkelried:

1) The business uses a computer.

2) The computer is reliable.

3) The business has developed a procedure for inserting data into the computer.

4) The procedure has built-in safeguards to ensure accuracy and identify errors.

5) The business keeps the computer in a good state of repair.

6) The witness had the computer readout certain data.

7) The witness used the proper procedures to obtain the readout.

8) The computer was in working order at the time the witness obtained the readout.

9) The witness recognizes the exhibit as the readout.

10) The witness explains how he or she recognizes the readout.

11) If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.20

As can be seen, to meet this strict standard, counsel should advise his or her client to implement a number of safeguards to preserve the latter use of purposely destroyed hard copy evidence. The third-party software certification process provides an added layer of proof when establishing the foundation for admissibility in court. The Lorraine court believes that, “[t]he methods of authentication most likely to be appropriate for computerized records are [Federal Rules of Evidence] 901(b)(1) (witness with personal knowledge); 901(b)(3) (expert testimony), 901(b)(4) (distinctive characteristics); and 901(b)(9) (system or process capable of producing a reliable result).”21 However, it should be noted that the method of authentication is somewhat less stringent for the governmental client.

Florida Law
F.S. §92.29 (2012) provides statutory admission of electronically reproduced documents for government entities.

Photographic or electronic copies. — Photographic reproductions or reproductions through electronic recordkeeping systems made by any federal, state, county, or municipal governmental board, department or agency, in the regular course of business, of any original record, document, paper or instrument in writing or in an electronic recordkeeping system, which is, or may be, required or authorized to be made, filed, or recorded with that board, department or agency shall in all cases and in all courts and places be admitted and received as evidence with a like force and effect as the original would be, whether the original record, document, paper, or instrument in writing or in an electronic recordkeeping system is in existence or not.

Private sector litigants in Florida do not enjoy the benefit of this bright-line rule. The evidentiary standard for digital image copies of documents and signed contracts when introduced by a private litigant remains reliant upon the business records foundation and the best evidence rule.22 To this end, Florida, like most states, has adopted uniform federal acts, such as the UPA. F.S. §90.951(3) provides: “If data are stored in a computer or similar device, any printout or other output readable by sight and shown to reflect the data accurately is an ‘original.'”23 Clearly, this language provides that digital images can satisfy the best evidence rule. “[A] memorandum, report, record or data compilation, in any form, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity” may be admitted into evidence under the best evidence rule.24 The court in Jackson v. State, 738 So. 2d 382 (Fla. 4th DCA 1999), held:

In order to be admissible, a business record pursuant to section 90.803(6)(a) must be shown to have been: 1) [m]ade at or near the time of the event; 2) [b]y or from information transmitted by a person with knowledge; 3) [k]ept in the course of a regularly conducted business activity; and 4) [t]hat it was the regular practice of that business to make such a record.25

It should be emphasized that the witness or records custodian does not need to have personal knowledge of the contents of the record being proffered, but rather personal knowledge of the business’ record-keeping practice.26 As Florida evidence scholar Charles W. Ehrhardt opines, “[a]lthough some require stricter foundational standards for electronic records focusing on the reliability of the system, the better view is that demonstrating each of the elements traditionally required for the [business records] exception is sufficient to demonstrate the underlying reliability of the record.”27

The Uniform Electronic Transaction Act (UETA) is adopted by Florida in F.S. §668.50. This statute applies to transactions in which each party has agreed by some means to conduct electronic transactions.28 Notably, this statute states that “evidence of a record or signature may not be excluded solely because the record or signature is in electronic form.”29 Therefore, it may be beneficial for your client to include a clause in its multi-party documents that specifically provides for application of the UETA. For example, the following suggestive language could be inserted to show the parties’ intent to bring the anticipated electronic version of the document into the purview of the UETA:

Party A hereby acknowledges that it is an ordinary and regular record-keeping business practice of Party A to ultimately scan or otherwise convert this written Agreement into digital form for the purpose of electronic storage and thereupon destroy the original. Party B hereby agrees that any subsequent reproduction of Party A’s electronically stored version of this written Agreement that may later be produced by Party A in the ordinary course of its record-keeping procedure, shall have the same full force and effect as the destroyed original, for all purposes, including admissibility into evidence in all jurisdictions and tribunals.

Again, the proffering party must still satisfy the business records foundation in order to overcome the best evidence rule. However, including a clause allowing for coverage under the UETA may stifle an objection to the electronic form of the document.

CONCLUSION
The admissibility of electronic copies of documents comes down to a showing of the trustworthiness and accuracy of the reproduction of the original. While most courts now tend toward a more lenient rather than a demanding approach to authenticate electronic records, it appears better to err on the side of caution until the evolution is complete. Certifying documents and signed contracts via third-party software adds to the predicate required under F.S. §90.803(6)(a) to lay down the foundation required to overcome an objection to admissibility and aid in establishing the trustworthiness and accuracy of the digital reproduction. In some instances, third-party software certification may alleviate the need for the in-person appearance of the proffering party’s records custodian, but in the opinion of the author, most times it will not. Third-party software certification (including time-stamping) does not presently rise to self-authentication and is not binding on the court.

Based on the understanding that the time and costs associated with a third-party software certification process are considerable, your client should be advised on balancing the beneficial return on such costs. Because third-party software certification only adds to the business records foundation, it is not uniquely probative. Your client’s sound records retention policy may add to the admissibility of electronically stored records in the same manner that evidence is traditionally proffered, i.e., by laying down a foundation through the testimony of a witness with personal knowledge of the document’s history. Indeed, even the original document, when available, is put to the same scrutiny, but for statutorily self-authenticated evidence.

The underlying challenge to the authenticity of an electronically stored document is to overcome the possibility that it could have been altered sometime during the interval between when it was digitally reproduced and the time of trial. Although the same concerns as to alteration can be raised in an objection to the admissibility of original hard copies, the North Carolina Supreme Court in State v. Springer, 197 S.E.2d 530 (1973), aptly noted that “[t]he rules of evidence governing the admissibility of computerized business records should be consistent with the reality of current business methods and should be adjusted to accommodate the techniques of a modern business world, with adequate safeguards to insure reliability.”30 Third-party software certification provides such a safeguard by facially comparing and time-stamping the document, professing to certify that it is the same as the original, and by the custodian of records e-signing it; but is not by itself probative of the accuracy of the reproduction.

“Does the cost outweigh the benefit?” For government attorneys the answer is a simple, “yes,” because of the reduced burden made available under F.S. §92.29 (2012). For private litigants this is a business decision for the client to make, taking into account the advice of counsel with knowledge of these evolving trends.

1Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 557 (D. Md. 2007).

2 28 U.S.C. §1732 (2012), available at http://www.law.cornell.edu/uscode/text/28/1732.

3 Id.

4 Id. (emphasis added).

5 See, e.g., In re the Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 615 (D.N.J. 1997).

6 Lorraine, 241 F.R.D. at 534.

7 Id. at 541-42 (citing Fed. R. Evid. 901(a)).

8 Id. at 542.

9 Id. at 544 (citing Fed. R. Evid. 901(b)).

10 Fed. R. Evid. 901(b)(4).

11 Lorraine, 241 F.R.D. at 547.

12 Id.

13 Id. at 549-52 (citing Fed. R. Evid. 902).

14 Fed. R. Evid. 902(7).

15 Lorraine, 241 F.R.D. at 552 (citing Fed. R. Evid. 902(11)).

16 Fed. R. Evid. 902(11).

17 Lorraine, 241 F.R.D. at 552.

18 Id. at 558.

19 In re Vee Vinhnee, 336 B.R. 437, 444 (B.A.P. 9th Cir. 2005) (this analysis is relevant, but more applicable to internal business records, such as invoices, ledgers, etc., rather than mutually executed contracts).

20 Id. at 446-47 (citing Edward J. Imwinkelried, Objections at Trial §4.03(2)).

21 Lorraine, 241 F.R.D. at 559.

22 See Fla. Stat. §90.952.

23 Fla. Stat. §90.951(3).

24 Fla. Stat. §90.803(6)(a).

25 Jackson v. State, 738 So. 2d 382, 386 (Fla. 4th DCA 1999).

26 See Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121, 1122 (Fla. 2d DCA 1988).

27 Charles W. Ehrhardt, West’s Florida Practice: Florida Evidence §803.6b (2013).

28 See Fla. Stat. §668.50 (2012).

29 Fla. Stat. §668.50(13).

30 State v. Springer, 197 S.E.2d 530, 536 (1973).

 

By William R. Wohlsifer and Tyler L. Thomas

William R. Wohlsifer is a commercial litigation attorney with the law firm of William R. Wohlsifer, P.A. He practices in both Florida and Washington, D.C., with an emphasis on copyright and trademark infringement. Wohlsifer received his B.A. in political science from The University of Central Florida and his J.D., cum laude, from The St. Thomas University School of Law.

Tyler L. Thomas is a third-year student at the Florida State University College of Law and a clerk at William R. Wohlsifer, P.A. His studies focus on commercial litigation, real estate law, intellectual property, and corporate law. A graduate of the University of Florida, he is a member of both the Journal of Land Use & Environmental Law and the Business Review.

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Paid political advertisement by Committee to Elect Bill Wohlsifer, 1100 East Park Ave Ste B, Tallahassee FL 32301. Approved in advance by Bill Wohlsifer.

Proving Publication in Cyberspace

Proving Publication in Cyberspace
E-Commerce Law, Aspen Law and Business, New York, NY (Oct. 2001); Republished in Business Law Quarterly, The Florida Bar Association, Tallahassee, FL (Nov. 2002).

PROVING PUBLICATION IN CYBERSPACE

Increasingly, content published in digital format over the Internet creates legal rights and relationships. Internet content is forming the basis of numerous legal disputes, ranging from Internet fraud and defamation to simple breach of contract where a contract and its terms have been established through electronic commerce. Oddly enough, the actual electronic communication is the only true form of original evidence of such content or communication. When digital data is ultimately reduced to a tangible physical form, issues arise regarding its admissibility and its reliability.

The essential problem with proving digital content is that what you see or rely on today may not exist tomorrow. Internet publications are not tangible and, therefore, defy traditional means of authentication.

THE PROBLEM WITH INTERNET PUBLICATION

Although the growth and use of digital content has certainly exploded, this information is intangible, ephemeral and constantly in flux. It can be frequently changed, updated, or deleted by its authors. In addition, it can be downloaded by a reader and altered on the reader’s computer either by changing the content or by manipulating the time stamp indicating the date of the download. However, authentication of such evidence can be accomplished by obtaining the evidence through neutral disinterested third-party authentication services. Such diligence will enhance the evidence’s probative value and will contribute toward maintaining social justice in alignment with technological advancement.

The magnitude of content published and disseminated daily over the Internet is enormous, and it continues to grow. The number of pages on the World Wide Web in 2000 was estimated to be in excess of 1 billion. In the United States, e-commerce was estimated to exceed $235 billion in 2000 and $830 billion by 2005.2 America Online subscribers alone spent $6.7 billion while shopping on the Internet during the first quarter of 2001.3 Consumers and online viewers trustingly rely on the warranties and representations made within a Web site, while retailers rely on their disclaimers and click-agreements. Meanwhile, insurance companies are writing exemptions and limitations into policies that exclude coverage for losses arising out of Internet exposure. Consequently, business clients are being exposed to unforeseen risks and liability as a result of their publishing of content on the Internet.

Furthermore, with the advent of the Internet, countless brick-and-mortar businesses, both large and small created Web sites that advertise their goods and services. Thus, “Mom and Pop” became authors and publishers. Many also have become copyright and trademark infringers, being unaware of what they cannot reproduce without permission. Counsel should be aware and advise such clients that they will be held to the standards of a publisher and, accordingly, that they should be aware of and exercise the same due diligence as the traditional publishing community.

PROFFERING INTERNET EVIDENCE

In the traditional world of tangible documents, legal norms can be readily applied to show ownership or to offer admissible evidence of such material. Hardcopy of tangible writings and even recordings can be physically deposited with the US Copyright Office, a court clerk, or a private registry to establish authorship and publication. Rules of evidence can be applied to admit tangible documents into evidence. However, the transient nature of electronic communications results in new problems that require solutions.

For example, how can counsel defend against challenges to a client’s claim to ownership in content appearing within the client’s published Web site, especially when the content can be appropriated or misappropriated with a simple click of a mouse? Are you confident that a copy of an electronic publication will be admitted into evidence in support of your client’s defamation claim when opposing counsel objects to it as hearsay or as unreliable? What do you do when you return to the subject Web page and find the content you intended to proffer has disappeared before you credibly captured and authenticated it? Is that professional negligence?

Are you prepared to overcome objections to introducing only portions of a Web site, even though it is beyond your means to capture the whole site? How do you introduce proof of content that is technologically unrecordable? Although almost anyone can capture and store a digital file on a tangible medium, such as a floppy disk or magnetic tape, and offer the medium as evidence of the existence of the embedded content, a number of deficiencies result when an interested party attempts to preserve cybercontent.

A Web site may include embedded graphic and sound files, the capturing of which may be beyond the technical capabilities of many users, their attorneys, and investigators. Counsel should be aware that data that appears on a monitor screen might not reside within the Web page or Web site; rather, it might be purposefully and legally generated and imposed by another server and another source, or it might be linked to a database that is not be recordable by ordinary downloading processes. As the underlying technology of Web sites evolves, more technology-based objections become available and should be used when appropriate.

USING NEUTRAL DISINTERESTED THIRD-PARTY SERVICES TO PROVE INTERNET PUBLICATION

Because the Internet is currently without a centralized publication recordation system, Internet content should be collaborated to enhance credibility and admissibility. In one instance a court reporter documented Internet evidence by taking a sworn statement from a witness as she navigated the Internet. The attorney deposing the witness said, “Please tell the court reporter the URL you are typing at this time.” The attorney then asked the witness to tell the court reporter which Web page the URL retrieved. Finally, the attorney asked the witness to print the Web page and directed the court reporter to attach the printout to the sworn statement. This method of authentication can be effective, but it is costly and cumbersome.

To overcome the technological challenges and objections, particularly the commonly used hearsay objection (based on the grounds that the Internet publication is an out-of-court statement offered for the truth of the matter asserted), counsel should be aware of independent disinterested third-party services that purport to authenticate Internet evidence for use in litigation as part of their regularly conducted business activity. Third-party authentication services help overcome multiple objections to admissibility and always increase the weight of the proffered evidence. Such services are founded on the business records exception to the hearsay rule. Under Rule 803(6) of the Federal Rules of Evidence, “records of regularly conducted activity” such as a “memorandum, report, record, or data compilation, in any form of acts, events, conditions, opinions, or diagnoses, made at or near the time, by or from information transmitted by a person with knowledge, if kept in the regular practice of that business activity to make the memorandum report, record, or data compilation” are deemed credible and are not bared by the hearsay rule.

Cyberight Corporation4 is one company that provides authentication services. Cyberight developed its Proof-of-Publication in Cyberspace process in response to the lack of a central depository and records custodian available to verify publication of text, images, and sounds appearing on the Web. The Cyberight process is modeled after the method sovereigns use to record liens on real property and to register copyrights and trademarks. In contrast to the method used by sovereigns in which the recording party provides the copy of the material, in the Cyberight process, a neutral, disinterested third party creates and records the original copy. Specifically, Cyberight captures archives, indexes, and preserves and entire Web site offline in the same manner as court clerks assign book and page numbers to deeds and recorded liens. The entire Web site is printed and bound like a deposition transcript. Each Web page is followed by a printed page showing a table of links of all URLs associated with the particular Web page. The bound copies and a CD-ROM of the entire recorded Web site are sent to the requesting party, along with an affidavit from Cyberight’s records custodian providing the predicate for the business records exception and attesting to the authenticity of the downloaded material.

When authenticating Internet content, it is important to capture the whole Web site to show the relevant hierarchy of the disputed information, the number of other Web pages that refer to the page(s) containing the subject content, and the links to other topics, products, or entities that are associated in any way with the subject matter. Such information will often allow counsel to expand a client’s claim for damages by showing a broader scope of impact. The content should be captured from the site available to the general rather then obtained directly from the server or archive of the Web site’s host. Capturing what was available to the public assures that the captured content is a true and correct copy of what was actually presented at the time of recording. The evidence can be obtained without discovery, without a court order, without costly invasion of a hard drive, and even without filing a legal action.

USING NEUTRAL, DISINTERESTED THIRD-PARTY SERVICES TO PROVE DIGITAL FILE CREATION

Several Internet-accessible companies, including FirstUse.com and Surety.com, authenticate third-party files by encoding a digital “fingerprint” into the submitting party’s digital file. After the file is fingerprinted, the hash code is then transmitted via a secure Internet connection to a remote server, where it can be stored for 10 years. When the fingerprint is matched to the third-party file, the date and time that the fingerprint was created is verified, thus providing a method for establishing the existence of a document at of a given time, provided that the file is never changed, lost, or revised in any manner. Throughout the process, neither company copies or views the fingerprinted file.5

There are several disadvantages to relying on digital fingerprinting alone. Encryption purports to prove creation of a file, but it does not establish whether the file was ever published. Fingerprinting is disfavored as proof of origination for two additional reasons: First, it fails to provide proof of who was in actual possession of the key when the fingerprint was created. The “key,” usually being no more than a series of passwords and PIN codes, can be voluntarily shared or otherwise accessed by someone other than the key holder. Second, absent a land-based agreement that a digital fingerprint will be binding on the parties, it should not be given full effect under standard contract law.

PROVING WARRANTIES AND REPRESENTATIONS MADE IN CYBERSPACE THROUGH THIRD-PARTY ENDORSEMENTS

“The next phase of Internet endeavor will be about bringing order to the wild, wild Web [by replacing] the anonymity of the early Internet [with] a set of badges and labels that identify the netizens.”6 Businesses are increasingly subscribing to services that purport to acknowledge the credibility of or endorse their Web site subscribing to these services generally displays the third-party’s icon on its homepage or privacy page. When the icon is clicked, a notice is displayed that corroborates or endorses certain representations being made by or pertaining to the subject Web site. Generally, the displayed notice actually resides in the third-party’s server. Counsel should refer to these endorsements because they may support or rebut presumptions pertaining to the reasonableness of a viewer’s reliance in the relevant Web content.

Consider the following examples:

> The Better Business Bureau, at BBBOnLine.org, allows Web sites to display the “BBB OnLine Reliability Seal.”
> Truste, at Trust-e.org, allows Web sites to display the Truste “Licensee Validation Page.” This page advises online viewers that “Trust-e is an independent, non-profit initiative whose mission is to build users” trust and confidence in the Internet by promoting the principles of disclosure and informed consent.”
> Good Housekeeping offers the GoodHousekeeping.com seal of approval, signifying that the site “Meets Standards for Good Housekeeping Web Site Certification.”
> Veri-Sign.com’s “The Sign of Trust on the Net” indicates that “All information sent to this site, if in an SSL session, is encrypted, protecting against disclosure to third parties.”
> Gomez.com allows a Web site to claim that they are “Gomez Certified,” which means that they meet the minimum standards for “shoppability” and that the merchant has a reasonable Internet store.”
> BizRate.com allows Web sites to display the “BizRate.com Report Card,” which provides the e-store’s profile and customer evaluations.
> WebAssured.com allows Web sites to display the WebAssured.com seal to “tell prospective customers that the site subscribes to ethical standards of conduct.”

WHO PUBLISHES THE INTERNET?

The Internet is self-published. US Supreme Court Justice Stevens has written, perhaps in dicta, that “[a]ny person or organization with a computer connected to the Internet can “publish” information.7  “Publishers” include government agencies, educational institutions, commercial entities, advocacy groups, and individuals.”8 The uploading of files or Web pages is similar to the printing and distribution traditionally performed by large-scale book and music publishers. As a result of the ease of publication and distribution, the Internet inadvertently failed to include any form of notice of publication on Web sites.

Unlike Copyright Management Information (CMI), Web pages do not contain publication information. Publication notices appear on sound recordings (compact discs, cassettes, and their packaging) and in printed materials (books and magazines) in the form of the stated year of publication and the name and location of the publishing company, often accompanied by the publication notice symbol (P). The notice of publication that appears with both sound recordings and printed matter appears in addition to the copyright notice and symbol (�) and documents the fact of publication. (Note: The inclusion of the geographical location claiming or indicating where a Web site purports to be published likely will resolve certain Internet-based jurisdictional issues.) The omission of such publication information makes it virtually impossible to prove the event of past Internet publication, absent a timely recording of the content from the World Wide Web by private citizens or companies that specialize in documenting such proof.

THE FIFTH INTELLECTUAL PROPERTY

The World Wide Web possesses a unique form of protectable intellectual property. I refer to this phenomena as “the fifth intellectual property.”  Historically, there were three major components of intellectual property – patents, trademarks, and copyrights – and sub-components, such as trade dress and trade secrets. With the advent of the Internet, domain names have become a form of intellectual property in that domain names no longer serve simply as electronic addresses; rather, they have become clear identifiers of sources of goods or services, much like trademarks and service marks.

Web pages are similarly emerging as a form of intellectual property. An evolved Web page is often a combination of original works of authorship, borrowed and licensed works, extraneously imposed content, text, graphics and sounds with look-and-feel and navigational features all compiled into a single medium. It is highly likely that such particularized combinations and compilations do not appear as a singular form anywhere else but as Web pages. This frequently changing combination of proprietary and non-proprietary material is a form of intellectual property in and of itself. Copyright protection of this intellectual property depends on the owner’s ability to prove publication in cyberspace, including significant changes to the Web site. Thus, a third-party Web capturing service should be used to corroborate the event of electronic publication.

IS CONTENT DISPLAYED IN CYBERSPACE DEEMED PUBLISHED?

It is unclear whether material posted on the Internet is deemed “published,” as that term is used in US copyright law. The 1976 Copyright Act defines “publication” in part as “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display.”9 However, the “public performance or display of a work does not of itself constitute publication.”10 In this author’s opinion, posting content on the Internet clearly falls within this definition of publication.

However, the US Copyright Office stated that one consideration should be whether the computer viewing the Internet is connected to a printer.11 Register of Copyrights, Mary Beth Peters, indicated that downloading an entire Web site should constitute publication, but she believes it is unlikely that anyone downloads an entire site.12 In the author’s opinion, whether the viewing computer is connected to a printer or the full site is downloaded should have no effect on determining whether the online work is deemed published. Such scenarios can not be reasonably proved; thus, the caveat is illusory. Further, a viewer can read the publication from the monitor and then respond to it, reasonably rely on it, or infringe it without either printing or downloading the displayed material. A better rule is to recognize that by the very nature of the World Wide Web, all content made available over the Internet is essentially being used in commerce and, as such, should be deemed “published.”

Although proof and preservation of this “fifth intellectual property” can be obtained through formal copyright registration (and arguably through the common law), most Web sites in the United States are not registered with the US Copyright Office. On average, less than 600,000 statutory copyrights are obtained each year.13 Of those 600,000 applications, only 180,000 are Form TX.14 (Form TX refers to the form used for copyright application of text, the most likely application to be for a Web site). Of those 180,000, it is estimated that only 100 per week apply for copyright registration.15 This is far below the immeasurable, but believed to be approximately 3 billion, Web pages and multi-million Web sites now published daily on the World Wide Web.

Registration with the US Copyright Office greatly affects the rights of the content owner. For example, registration is necessary before an infringement action may be filed. If made before or within 5 years of publication, registration is prima facie evidence of the validity of the copyright and of the facts stated in the copyright certificate. Moreover, if registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner. Otherwise, only an award of actual damages and profits is available to the copyright owner. The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works (when the author’s identity is not revealed in the records of the Copyright Office) and for works made for hire. Thus, counsel should advise clients to register their Web sites with the US Copyright Office. For Web sites that change frequently, counsel secure credible proof of publication in cyberspace and be aware of the availability of the following copyright registration options for Web sites:

> Serial registration (group registration for works updated weekly for up to three months under a single application);
> Newsletters registration (daily changes up to one month under a single application);
> Database registration (up to three months of traditional compilation database updates under a single application); and
> Derivative works registration (per each cumulative change to the a prior registered Web site).
REGULATORY COMPLIANCE AND INDUSTRY STANDARDS

In response to the lack of unified standards regarding Internet publication, regulatory agencies, self-regulated trade associates, the legal community and the business community are creating mechanisms to control content displayed over the Internet and imposing Internet publication standards. Consider the following:

> The Securities and Exchange Commission is seeking federal regulations designed to protect investors who are influenced by journalistic content appearing on the same Web page as broker-sponsored advertisements.16

> The FBI conducted a sting operation, known as “Operation Cyber Loss,” during which it charged 88 people within 10 days with Internet fraud. Operation Cyber Loss was part of a nationwide investigation into schemes that victimized more than 56,000 people, causing losses in excess of $117 million through fraudulent Internet representations.17

> The Beer Institute promulgates a voluntary code that provides guidance to Institute members on the placement of advertisement in relation to the type of content presented on Web sites. The Institute’s goal is to avoid advertising beer near content likely to be viewed by minors.18

> Lawyers increasingly rely on Web pages as evidence in court.19

> Over-the-counter software, such as Adobe’s Web Capture, offers users the ability to record Web sites in a manner that may enhance the credibility of Internet evidence captured.20
CONCLUSION

Counsel should use the utmost diligence to identify and capture evidence that is or was published on the Internet, and opposing counsel should aggressively challenge the proffering party to enable the fact-finder to fully consider the credibility of the downloaded evidence. The legal communities’ commitment to diligently document the fact of Internet publication will ultimately curtail fraudulent Internet transactions, protect ownership rights in intellectual property, prove virtual contractual terms, provide online consumer protections, enhance confidence in electronic commerce, and advance social justice in the Internet’s commercial environment. This can best be accomplished through the use of neutral, disinterested third parties that specialize in authenticating digital evidence or Internet publication. Proper capturing and authenticating of content that was published over the Internet facilitates the application of existing laws to cyberspace. With hard copy in hand, cyberspace can touch down to the ground.

1  The Internet and Computers, World Almanac and Book of Fact 2001 (World Almanac and Education Group, Inc. 2001), at 566.)

2  Id. at 567.

3  Staff Writers, “In Brief:  AOL Time Warner” The Washington Post, May 24, 2001, at E5.

4   William R. Wohlsifer is one of the founders of Cyberight Corporation.

5  See Uniform Computer Information Transactions Act (UCITA) §105 cmt 3 and § 503 cmt 4.

6  Sebastian Mallaby, The Washington Post, April 2, 2001.

7  Reno v. ACLU, 521 U.S. 844 (1997).

8  Id.

9  17 U.S. C. § 101.

10  Id.

11  Circular 65, Copyright Registration for Automated Databases, US Copyright Office (June 1999).

12   Mary Beth Peters, US Register of Copyrights, Remarks at the Annual Meeting of the American Intellectual Property Law Association, October 2000.

13   Peter Vankevich, Head, Information Section, US Copyright Office, Results of FOIA Request, February 27, 2001.

14   Id.

15  Jeff Cole,  Head of Literary Section, Examining Division, US Copyright Office, Remarks at the Annual Meeting of the American Intellectual Property Law Association (October 2000).

16   Neil Irwin, “Finance Web Sites May Face Regulation,”  The Washington Post, May 24, 2001, at E4.

17  Tamra Santana, “FBI Charges 88 in Internet Fraud Sweep,” The Washington Post, May 24, 2001, at E4.

18  Mary M. Luria and Craig M. Mersky, “Beer Advertising and Sweepstakes on the Internet,”  6 E-Commerce Law 28 (June 2001).

19  James L. Dam, “Lawyers Are Getting Website Admitted as Evidence at Trial,” Lawyers Weekly USA, May 28, 2001, at 1, 18.

20  Paul Bernstein, “Perform Litigation Tricks with Adobe Acrobat,” Trial,  at 90, 92 (Feb. 2001).

By William R. Wohlsifer, Esq.

Reprinted with permission from E-Commerce Law. October 2001. [Vol. 1, No. 10]. Published by Aspen Law & Business, 1185 Avenue of the Americas, New York, New York, 10036. To order a subscription, please call (800) 638-8437; Republished in Business Law Quarterly, The Florida Bar Association, Tallahassee, FL (Nov. 2002).

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