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Fox Blocks Government’s Offer of Digital Evidence Due to Missing Metadata

September 14, 2018 – Press Releases

A Fox Rothschild white-collar defense team won an important evidentiary ruling on a cutting-edge point of law when a New Jersey administrative law judge declared that the state’s Commissioner of Banking and Insurance could not present audio recordings after witnesses were unable to explain how that data was gathered.

Fox attorney Matthew Adams, co-chair of the firm’s White-Collar Criminal Defense & Regulatory Compliance Group, along with Jordan Kaplan and Marissa Koblitz Kingman, moved to exclude the digital recordings in John Savadjian’s case on the grounds that the government was unable to authenticate them through the use of carefully maintained metadata and a witness who could explain the data.

In his 37-page decision, Administrative Law Judge Barry E. Moscowitz ruled that the recordings were inadmissible because the government foundational witness “has no technical knowledge of the record system used to create and store them.”

Adams is defending Savadjian in proceedings brought by the Department of Banking and Insurance alleging violations of the New Jersey Insurance Producer Licensing Act.

“This is a very significant ruling because it defines the critical steps necessary whenever the government – or any litigant – wants to use digital evidence in court,” Adams said. “Specifically, it underscores the importance of the metadata in establishing how the digital evidence was recorded and maintained, and, most importantly, the need for a competent witness who understands the data and is capable of authenticating the evidence by explaining the system used to create and store it.”

In his ruling, ALJ Moscowitz found that the government’s audio recordings had not been “forensically collected” and “were not in native format.”

“In fact, they had been stripped of their metadata in their entirety,” Moscowitz wrote.

The attempt by lawyers from the Department of Banking and Insurance to authenticate the evidence fell short, Moscowitz found, because the witness whose testimony they offered was not competent.

Instead, the judge found, the witness “had no specific knowledge of the record keeping,” and “only understood the record system used as a user and not as a custodian.”