In the landmark case of LORRAINE versus MARKEL AMERICAN INSURANCE
COMPANY, 2007 WL 1300739 in defining court admissibility standards for
email and burden of proof it was observed that,
"For email evidence, the burden of proof lies with the party who wishes to
employ an email record as evidence of an electronic transaction and
therefore such records must be in a court admissible format. This will
require independent verification of the components mathematically
associated to wit;
(a) The original message content and all attachments:
The uniform time (not the sender's desktop computer time) of transmission
(sending and receipt) of the message and
(b)
The underlying transmission metadata that for court purposes serves as
the recorded digital snap shot of both servers' sender and recipient!
Collection transaction data that under terms of electronic law meet the
test of legal delivery".
" ... for an underlying email record (sent email or received reply email) to be
court admissible in a situation where the integrity of the content or time of
receipt is challenged, the record must be capable of third party verification
of delivery/ receipt times, associated content and associated transmission
meta-data, with each capable of independent verification".
Learned Counsel submitted that in BACK TO THE FUTURE: LORRAINE V.
MARKEL AMERICAN INSURANCE CO. AND NEW FINDINGS ON THE
ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION page 366 it was
established that a "A piece of paper or electronically stored information,
without any indication of its creator, source or custodian may not be
authenticated ..." Counsel further relied on OPEN MEMO TO MARK
ZUCKERBERG, CEO, FACEBOOK FROM ZAFAR KHAN, CEO, Post where it was
observed that a printed email (from ones' sent folder, inbox or archive) can
easily be denied admission into evidence by simply challenging contents
authenticity, time of sending or whether the email was in fact delivered and
secondly a copy of an email sent to yourself or another person has no bearing
as to whether a copy was also delivered to your intended recipient. Thirdly
electronically stored copies of an email in an archive of the sender or recipient
only provide a record of what the archiving party "claims" to have happened.
Even if the archiving parties can forensically prove the content in their archive
is authentic, they will be unable to prove delivery or timing of receipt should
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