There is a good chance that some, many, or all of the timestamps in your E-discovery are incorrect. There is also a good chance that it doesn’t matter. Until it does. This article will highlight the problem, the solution, and the decision points associated with time zone confirmation in E-discovery.
Timing is Everything… particularly when it comes to time zones. Consider the following war story:
Did the Defendant send the key email in the fraud scheme, or was the Defendant in a near-fatal accident 15 minutes before the email was sent?
It turns out that the email was sent 45 minutes earlier than the accident but from a different time zone. This changed the outcome of the trial.
Being in the right place at the right time can sometimes make all the difference in your life. As the saying goes, timing is everything. This is particularly true in the context of litigation. Timing is paramount when it comes to interpreting many of the data points and conversations in the evidence.
Houston, We Have a (Timing) Problem
It is not uncommon for software programs to record the time zone along with timestamps. This allows a diligent data processor to synchronize all timestamps in the same time zone. Usually, but mistakes can happen.
Nevertheless, it is possible that the time zone is not recorded. This causes the need to investigate what the correct time zone should be. In every case, there is some degree of ambiguity or error in interpreting time zones. However, in our experience, it rarely matters… until it does.
Many cases have emails and other communications that are collected, presented, and admitted as evidence with no issue. Sometimes, even if the time zones of individual messages are wrong, it simply doesn’t matter.
Case in point: Was a contract sent? Was it accepted? The hour of the day that the contract was sent may be irrelevant if it is clear that a contract was sent in January but accepted in February.
On the other hand, there are specific circumstances where precise timing, and consequently the time zone, are of critical importance.
The Source of the Problem
The whole concept of time zones and daylight saving time is fairly chaotic. Although there are only twenty-four hours in a day, there are forty-two time zones in the world. Of the four largest countries in the world, Russia has eleven time zones (currently). Canada has six. China has one. The US has six. Most of the world does not use Daylight Saving Time, including Hawaii, Arizona, Puerto Rico, and the US Virgin Islands. At one time, Iowa had twenty-three different daylight-saving time zones. Daylight saving time affects more than just Americans. It creates confusion among citizens in many countries, particularly when scheduling international online meetings or conferences. Not to mention that it doesn’t always fall on the same day for each country nor is the date consistent each year.
A common reason why time zones are incorrect is that many legacy systems do not indicate the time zone of the timestamps that they record. Then it becomes unclear if a timestamp is based on the location of the actor, the company headquarters, or the data application server. Another reason that time zones can be inaccurate is that different systems record dates in different ways. Microsoft-based systems use a methodology that is separate from Unix-based systems (be careful when comparing Bloomberg Messages to MS Exchange).
The third reason that time zones are often incorrect is that multiple data processors (eDiscovery vendors) may have been involved in a single case. Each of these vendors may have used a different conversion method.
The Importance of the Problem
As mentioned earlier, in many cases, the exact hour of an event is not significant. But sometimes it can be. The absolute time of an element of evidence can be the deciding factor in a case. For example, was the information received on December 31st, or January 1st? If an email was sent from New York on December 31st, 2022 at 9 pm EST (Eastern Standard Time) but received in London at 2 am GMT (Greenwich Mean Time), it may be confusing.
The relative sequence of evidence can also be a deciding factor in a case. Did Event A happen before or after Event B? When these are recorded in different systems, making sure that the time zones are properly adjusted is crucial. While time and date stamps can provide an objective measure of when something happened, we cannot always take a timestamp at face value. In key circumstances, there should be verification of the timestamps (and the evidence) to ensure nothing was altered, intentionally or unintentionally. When those situations arise, having an expert team like iDS confirm the authenticity of the data is essential to determining the legitimacy of the time and date stamps in question.
Different countries, states, and cities have different time zones, leading to uncertainty as to what time a document was sent or received. This contributes to confusion and mistakes, making witness testimony unreliable. As a result, we cannot rely solely on witness testimony. Data is more consistent and will always deliver an impartial and accurate record. iDS’s data mining expertise can give you an advantage in court. We have successfully proven when data was tampered with and/or destroyed. We also successfully identified when and where email threads and text exchanges were sent after depositions or forged documents tried to claim otherwise.
To illustrate an example, we were once presented with a case we can refer to as “The Nashville Email Dispute” where we were able to prove through digital forensics that the defendant had created a fake email account and a fake thread of payment and discount agreements. We determined that the key email in question was sent in a different time zone than what the defendant was claiming.
Plaintiff’s counsel declared, “Your honor, ladies and gentlemen of the jury, this is a simple case of fraud and deception, made with fake emails. The defendant has engaged in an intentional, well-executed plan to create a false conversation with a fake email account. This is done in order to create a trail of false promises and commitments in order to avoid paying my client the money he is owed.”
Defense counsel responded, “That is not possible. In fact, you will hear from the State Trooper that their key evidence, the last and most pertinent email they accused my client of sending, was actually sent 15 minutes after my client was in a horrific accident that put him in a coma.”
Plaintiff’s counsel was prepared for this defense to take this position and came back with, “Actually, the email was sent. Because Tennessee has two time zones, he sent the email before the accident – from Eastern Tennessee, and then got into the accident in Western Tennessee, which is why the clock showed one-hour earlier.”
The plaintiff won the lawsuit. The defendant not only lost the case and paid the money but was also sentenced to jail.
When Does It Matter?
How can counsel determine when to spend the money to have time zones verified when they are often incorrect, either in whole or in part?
- When there is substantial activity near the discovery cutoff
- When there is crucial timing
- When there is a critical event
- When developing annual trends that span Daylight Saving Time
- When combining data from multiple sources
- When combining data from multiple locations
- When the evidence just doesn’t add up
Time zones are easily misunderstood. It may not matter in many instances, but if it does, you must identify whether the cutoff is at the beginning or at the end of discovery. If there are singular pieces of evidence that are relevant, then the time zone is one thing to validate. This is because the cutoff time might differ between time zones. You may have evidence from one time zone that would be excluded in another, and vice versa. Therefore, it is important to accurately account for the time difference to ensure that no significant evidence is overlooked. For example, if you have a cutoff for a discovery process that is midnight in one time zone and it is 11:59 PM in another time zone, then you may miss out on a valuable document if you do not account for the time difference.
Litigants should assume that all timestamps can be wrong in their time zone. If it doesn’t matter – fine, but if it does matter, take that into consideration. This is particularly true when dealing with international cases since time zones can vary greatly. It is necessary to allow for the possibility that the time stamps may be off by a few hours or even a day. This is so that litigants can make the most informed decisions.
Mobility is also an issue. As the number of individuals working from home increases, it is also imperative to be aware of the complexity of office time zones, server time zones, employee home-office time zones, employee location time zones, recipient time zones, and universal time zones. Ever notice an email chain where the reply appears to be sent before the original email?
Let us not forget the challenges that arise with collection and processing. In many instances, the collection and processing of electronic data is complex due to the sheer volume and variety of data sources that may need to be reviewed. This can be further complicated by the different locations and time zones of the involved parties, as well as the different jurisdictional requirements of the court. Should emails be formatted according to the recipient, the sender, the Corporate Headquarters (and email server) location, the collection location, the ESI vendor’s location, GMT, or the court’s jurisdiction? We’ve seen all of these, even in the same case!
By conducting quality eDiscovery, you can identify weaknesses in the other side’s claims and arguments. In addition, you can determine potential evidence and find facts that will be beneficial to your case. Knowing the other side’s opposing arguments and supporting materials will enable you to anticipate likely outcomes and counterarguments and better position yourself for court decisions. Give yourself a strategic advantage by investigating any timestamp or time zone discrepancies. It is essential to ensure that time zone data is accurately verified when integrating evidence from multiple external sources. This can have major implications for the outcome of your client’s case. It becomes even further relevant as we include more and more data from smart devices and the Internet of Things.
This isn’t to say that witnesses have no credibility, but sometimes memory can be unreliable. People forget. Sometimes they forget on purpose. In particular, people tend to underestimate or overestimate time durations. Remember in My Cousin Vinny, the cross-examination on how long it took to cook grits? In order to correct the false recollection of the time the suspect’s car was at the gas station, the time was compared to the time it took to cook a bowl of grits.
Timestamps and time zones are key elements when it comes to discovering evidence and proving your case. As we know, timing is in fact everything. There is no substitute for it, so make sure you can keep track of every last nitty-gritty detail.
iDS provides consultative data solutions to corporations and law firms around the world, giving them a decisive advantage – both in and out of the courtroom. Our subject matter experts and data strategists specialize in finding solutions to complex data problems – ensuring data can be leveraged as an asset and not a liability.