Escolar Documentos
Profissional Documentos
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JULIANNA ZITZ*
INTRODUCTION
/0308_article_myspace.html.
3 See Loryn P. Riggiola & Grace A. Brown, E-Discovery Takes A TurnCharting The Course To
Discovery From Social Networks, METROPOLITAN CORP. COUNS. (Jan. 31, 2011, 1:00 AM),
http://www.metrocorpcounsel.com/articles/13461/e-discovery-takes-turn-charting-coursediscovery-social-networks; K & L Gates, Current Listing of States that Have Enacted E-Discovery
Rules, ELECTRONIC DISCOVERY L., http://www.ediscoverylaw.com/promo/state-district-courtrules/ (last visited Apr. 22, 2015).
4
85
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Background
A. Electronic Discovery Differs from Traditional Paper Discovery
Adam Cohen, Social Media and eDiscovery: Emerging Issues, 32 PACE L. REV. 289, 292 (2012).
See infra Part I.B.
8 See infra Parts III, IV.
9 SHIRA A. SCHEINDLIN & DANIEL J. CAPRA, THE SEDONA CONFERENCE, ELECTRONIC
DISCOVERY AND DIGITAL EVIDENCE CASES AND MATERIALS 40 (2d ed. 2012).
7
10
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Electronic Discovery
15
17
19 Pearl Zuchlewski, The Uses and Abuses of Electronic Discovery, 57 WAYNE L. REV. 1391, 1392
(2011).
20 See generally Gaetano Ferro et al., Electronically Stored Information: What Matrimonial Lawyers
and Computer Forensics Need to Know, 23 J. AM. ACAD. MATRIM. LAW. 1, 2429 (2010).
21
Daniel Renwick Hodgman, A Port in the Storm?: The Problematic and Shallow Safe Harbor for
Electronic Discovery, 101 NW. U. L. REV. 259, 275 (2007). The Sedona Conference is a nonprofit
working group and a research and educational institute dedicated to the advanced study of
law and policy in the areas of antitrust law, complex litigation, and intellectual property rights.
About the Sedona Conference, SEDONA CONF., https://thesedonaconference.org/ (last visited Apr.
22, 2015).
22 ROTHSTEIN ET AL., supra note 5, at 3.
23 See generally Thomas Y. Allman, Conducting E-Discovery After the Amendments: The Second
Wave, 10 SEDONA CONF. J. 215, 218, 22021 (2009).
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Id. at 218.
David Narkiewicz, E-Discovery: The Essentials, 30 PA. LAW., Nov.Dec. 2008, at 18, 24.
26 See Steven W. Teppler, Spoliation of Digital Evidence: A Changing Approach to Challenges and
Sanctions, 2008 A.L.I.-A.B.A. VIDEO L. REV. 67, 69, available at http://files.ali-cle.org/thumbs/
datastorage/skoobesruoc/pdf/VCP0807_chapter_05_thumb.pdf; Matt Delmero, Spoliation:
Analysis, HARV. UNIV., http://cyber.law.harvard.edu/digitaldiscovery/library/spoliation/
spoliationanalysis.html (last visited Apr. 22, 2015).
27 See Allman, supra note 23, at 22224.
28 See Sarah A. L. Phillips, Discoverability of Electronic Data Under the Proposed Amendments to
the Federal Rules of Civil Procedure: How Effective Are Proposed Protections For Not Reasonably
Accessible Data, 83 N.C. L. REV. 984, 985 (2005). [E]-discovery raises different issues than
traditional discovery and . . . these issues require special rules of procedure. Id. at 987; see also
E-Discovery Services & Strategy, PERKINSCOIE, http://www.perkinscoie.com/ess/ (last visited
Apr. 22, 2015).
25
29 INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., NAVIGATING THE HAZARDS OF EDISCOVERY: A MANUAL FOR JUDGES IN STATE COURTS ACROSS THE NATION 8 (2d. ed. 2012),
available
at
http://iaals.du.edu/images/wygwam/documents/publications/Navigating_
eDiscovery_2nd_Edition.pdf.
30
Id. at 10.
Eric B. Strongin, When Paper Doesnt Cut It: Understanding E-Discovery Law and Putting In
Place An Effective E-Discovery Strategy, PRATTS PRIVACY & DATA SECURITY L. J., Feb. 2009,
available at Westlaw.
31
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32 JUDITH SEARS, NATL COURT REPORTERS ASSN, E-DISCOVERY: A TECH TSUNAMI ROLLS IN 4
(Apr. 2006) (internal quotations omitted), available at http://www.krollontrack.com
/publications/ediscoverybackgroundpaper.pdf.
33 See Lee H. Rosenthal, A Few Thoughts on Electronic Discovery After December 1, 2006, 116
YALE L.J. POCKET PART 167, 167 (2006), available at http://prawfsblawg.blogs.com/files/82.pdf.
34 See id.
35 See Thomas Y. Allman & Ashish S. Prasad, The Forgotten Cousin: State Rulemaking and
Electronic Discovery, in GARY A. ADLER ET AL., ELECTRONIC DISCOVERY AND RETENTION
GUIDANCE FOR CORPORATE COUNSEL 327 (2007); John B. Oakley, A Fresh Look at the Federal Rules
in State Courts, 3 NEV. L.J. 354, 355 (2003) (Not only has the trend toward state conformity to
the federal rules stopped acceleratingit has substantially reversed itself.).
36 State
Law
Rules,
EDISCOVERY
RESOURCE
DATABASE,
http://ediscoveryresourcedatabase.com/e-discovery-rules/state-law-rules/ (last visited Apr. 22,
2014) (including: AK, AZ, AR, CA, CT, DE, FL, IA, ID, IN, KS, LA, MA, ME, MD, MI, MN, MS,
MT, NE, NH, NJ, NM, NC, ND, OH, OK, PA, TN, TX, UT, VT, VA, WI, and WY); Thomas Y.
Allman, E-Discovery in Federal and State Courts After the 2006 Federal Amendments,
KROLLONTRACK 4861 (Feb.
9,
2012),
http://www.krollontrack.com/publications/
2012%20fed%20state%20ediscovery%20rules.pdf.
37
Stephany Collamore, Amendments to Mass. Rules of Civil Procedure Address E-Discovery, BOS.
BAR J. (Jan. 7, 2014), http://bostonbarjournal.com/2014/01/07/amendments-to-mass-rules-ofcivil-procedure-address-e-discovery/; New Electronic Discovery Rules in Massachusetts, MASS.
LAW UPDATES (Sept. 27, 2013), http://masslawlib.blogspot.com/2013/09/new-electronicdiscovery-rules-in.html [hereinafter New Rules].
38
David E. Frank, Bar Said to Be Unprepared for New E-Discovery Rules, MASS. ASSN HISPANIC
ATTYS (Oct. 9, 2013, 9:52 AM), http://mahaweb.org/news/bar-said-to-be-unprepared-for-newe-discovery-rules/.
39
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40
47 Jane Susskind, 7 Social Media Stats of 2013 that Will Surprise You, IVN (Oct. 2, 2012),
http://ivn.us/2013/10/02/7-social-media-stats-2013-will-surprise/.
48
Social Networking Eats up 3+ Hours Per Day for the Average American User, MARKETING
CHARTS (Jan. 9, 2013), http://www.marketingcharts.com/interactive/social-networking-eats-up3-hours-per-day-for-the-average-american-user-26049/.
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It is essential for states to adopt specific e-discovery rules: [T]he everevolving law and practice of eDiscovery . . . is not uniform even as between
state and federal courts in the same jurisdiction. Precedent-setting opinions
on eDiscovery disputes are rare, as appellate courts rarely pass on discovery
decisions.50 Various hurdles come with admitting social media evidence
the evidence must be relevant and authentic.51 Despite these difficulties,
attorneys are using these websites to discover evidence integral to their
cases.52 Without specific rules, courts are split on whether to admit evidence
from social networking sites.53
E-discovery issues have become prominent in many areas including
family and personal injury law.54 A divorce case from Mississippi allowed a
seventy-five page transcript of Facebook chats into evidence between a
mother and former high school classmate that contained various explicit
sexual references.55 The evidence ultimately led the court to grant physical
custody to the father.56 In a personal injury action to collect damages from a
car accident, the challenging party sought to introduce evidence from the
plaintiffs Facebook page depicting the plaintiff skiing after the accident.57
The court decided to conduct an in camera inspection of the plaintiffs
Facebook profile to determine what information was relevant to the alleged
injuries.58
50
52
SAMUELSON LAW, TECH. & PUB. POLICY CLINIC, BERKELEY LAW, SOCIAL NETWORKS: FRIENDS
OR FOES? CONFRONTING ONLINE LEGAL AND ETHICAL ISSUES IN THE AGE OF SOCIAL NETWORKING
Id.
Richards v. Hertz Corp., 953 N.Y.S.2d 654, 65557 (2012).
58 Id. at 656.
57
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59 Howell v. Buckeye Ranch, Inc., No. 2:11cv1014, 2012 WL 5265170, at *1 (S.D. Ohio Oct.
1, 2012); John G. Browning, With Friends Like These, Who Needs Enemies? Passwords, Privacy,
and the Discovery of Social Media Content, 36 AM. J. TRIAL ADVOC. 505, 527 (2013).
60
63
Keiko L. Sugisaka & David F. Herr, Admissibility of E-Evidence in Minnesota: New Problems
or Evidence as Usual?, 35 WM. MITCHELL L. REV. 1453, 1464 (2009).
64 FED. R. EVID. 901; Breanne M. Democko, Comment, Social Media and the Rules on
Authentication, 43 U. TOL. L. REV. 367, 381 (2012); see also GEORGE FISHER, EVIDENCE: FEDERAL
RULES OF EVIDENCE 20142015 STATUTORY AND CASE SUPPLEMENT 289 (3d ed. 2013).
65 See Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 539 (D. Md. 2007); Richard W.
Fox, The Return of Voodoo Information: A Call to Resist a Heightened Authentication Standard for
Evidence Derived from Social Networking Websites, 62 CATH. U. L. REV. 197, 202 (2012).
66 Heather L. Griffith, Understanding & Authenticating Evidence from Social Networking Sites, 7
WASH. J. L. TECH. & ARTS 209, 215 (2012).
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ANALYSIS
II. The Massachusetts E-discovery Rules Are Clearer than the Federal
Rules
A. The Massachusetts E-discovery Rules Provide More Clarity and
Guidance than the Federal Rules of Civil Procedures E-discovery
Rules
Even though Massachusetts e-discovery rules draw on the FRCP, key
differences will provide Massachusetts courts with more specificity and
guidance.71 States considering enacting e-discovery rules should follow the
Massachusetts model, as opposed to the FRCP. 72 The rules that deviate most
67
68 See Sugisaka & Herr, supra note 63, at 1459; see, e.g., Griffin v. State, 19 A.3d 415, 418, 424
(Md. 2011) (concluding that print-outs of the witnesss Myspace page were not properly
authenticated because it could not be established that the witness created the profile).
69 See Democko, supra note 64, at 382. A court may find a profile page authentic if the content
of the page or the posting is so distinctive that it only could have been created by one particular
individual. Griffith, supra note 66, at 218.
70 See Brent R. Austin, ESI, e-Discovery, and Ethics: Managing Pre-Trial Litigation in the Age of
Electronically Stored Information, in ETHICS IN E-DISCOVERY: LEADING LAWYERS ON NAVIGATING
RULES AND REGULATIONS AND EFFECTIVELY HANDLING PRIVACY ISSUES IN THE E-DISCOVERY
PROCESS 7, 19 (2012).
71 See Press Release, Supreme Judicial Court, SJC Approves Amendments to Rules of Civil
Procedure Addressing Discovery of Electronically Stored Information (Sept. 27, 2013), available
at
http://www.courtrulesupdates.com/massachusetts-rules-of-civil-procedure-2/;
NIXON
PEABODY, 2013 E-DISCOVERY AMENDMENTS TO THE MASSACHUSETTS RULES OF CIVIL PROCEDURE
2431
(2013),
available
at
http://bostonediscovery.com/wp-content/uploads/
2012/09/Jonathan-Sablone-MA-Rules-for-Ediscovery.pdf [hereinafter 2013 E-DISCOVERY
AMENDMENTS].
72
Cf. Massachusetts Rules for Ediscovery: A Two-Page Guide, EVIDOX, http://evidox.com/wpcontent/uploads/2014/01/MA-Rules-for-Ediscovery-Guide.pdf (last visited Apr. 22, 2015)
[hereinafter Massachusetts Rules for Ediscovery] (describing Massachusetts new amendments).
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from the FRCP are 16, 26, and 45. 73 Rule 16 addresses the scheduling and
management of pre-trial conferences; the FRCP do not provide specific
guidance for the management of such conferences.74 Conversely, the
amended Massachusetts rule adds precise provisions for the content that
should be addressed at such conferences: (1) timing and scope of discovery;
(2) preservation of the ESI; and (3) processes to assert privilege claims postproduction.75
Massachusetts Rule 26 pertains to a meeting and conferring requirement
between all parties.76 The FRCP mandate that there be an ESI conference
between all parties at least twenty-one days before the pre-trial conference,
but the plan set forth in the rule is extremely vague. 77 Although the
amendment to Massachusetts Rule 16 does not make these conferences
mandatory, it specifies that either party can demand a conference, in which
case it must occur within thirty days of receiving a request. 78 The plan set
forth by the Massachusetts rule specifies concrete issues that must be
addressed if this conference is to take place, including: preservation, form,
metadata, time, preserving claims of privilege, confidential statuses of
parties, and expenses.79 Rule 45 addresses subpoenas; under the FRCP
subpoenas may be served on all parties who have access to the ESI. 80 The
Massachusetts rule provides more protection for parties by allowing any
person facing a subpoena to move the court for a protective order under Rule
26(c) or have entitlement to any protection previously laid out in the case
relating to a discovery or procedural order.81
1.
Many practitioners are advocating for the new rules even though they
will cause e-discovery proceedings to differ from what judges and
practitioners are used to.82 The Massachusetts rules will end the
inconsistency that has plagued this area of law: [W]e now know that as a
procedural matter, e-discovery will be guided by codified rules creating a
mechanism to ensure [all parties] pay proper attention to how they address
73
See generally JONATHAN SABLONE, LEXISNEXIS PRACTICE GUIDE: MASSACHUSETTS EDISCOVERY AND EVIDENCE 4.06, (Matthew Bender & Co. ed., LexisNexis 2014) (comparing the
Massachusetts model and the FRCP).
74
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83
Id.
Boston Ediscovery Summit, Judge Rutberg & Attorney Fox: The Mass. Rules of Civil
Procedure, YOUTUBE (Jan. 22, 2014), http://youtu.be/cI8lbCMLB20?t=5m41s.
85 David Glod, Newly Amended Mass. Rules of Civil Procedure Focus on Electronic Discovery,
RICH MAY (Nov. 13, 2013), http://www.richmaylaw.com/?t=40&an=25937&format=xml.
84
86 See Anne Shea Gaza & Jason J. Rawnsley, Local Practices for Electronic Discovery, THE FED.
LAW., Feb. 2011, at 32, 32, available at http://www.rlf.com/files/local-ediscovery_0211.pdf ([T]he
2006 Amendments [to the Federal Rules] were neither the starting point nor the end point for
the handling of ESI.).
87
Jason Fliegel & Rochelle Outlaw, Slow to Act? State Rulemaking and Electronic Discovery, FOR
DEF., Jan. 2008, at 47, 47, available at http://www.mayerbrown.com/files/
Publication/1ebaddc7-cc40-445f-b162-69cf44ae9185/Presentation/PublicationAttachment/
70bb4e17-df1c-4229-bc63-38f3eb961bc9/ARTICLE_ELECTRONICDISCOVERY_2008.PDF.
THE
88
See generally Timothy J. Chorvat & Laura E. Pelanek, Electronically Stored Information in
Litigation, 67 BUS. LAW. 285, 28789 (2011); Fliegel & Outlaw, supra note 87.
89 See David Canfield, An Overview of State E-Discovery Rules, INSIDE COUNS. (Mar. 15, 2012),
http://www.insidecounsel.com/2012/03/15/an-overview-of-state-e-discovery-rules?page=2
([T]here is an innate concern that strict, homogenous adoption [of e-discovery rules] could
impede vital e-discovery evolution. To date, several states have transcended the 2006
Amendments with dynamic e-discovery regimes that could potentially serve as examples for
other states and perhaps for future amendments to the Federal Rules.).
90
91
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discovery rules resembling Texas rather than the Federal Rules.92 This
implies that states rules may be a better alternative than strictly following
the FRCP.93
New York does not have specifically codified e-discovery rules, but
follows the best practices guidelines issued by the New York State Bar
Association.94 Even without specific rules, New York has [p]layed an
important part leading the trend in the development of this area, with the
famous line of Zubulake cases.95 The United States District Court for the
Southern District of New York rendered five separate opinions in Zubulake
v. UBS Warburg LLC addressing some of the most challenging issues
surrounding e-discovery: discoverable information, the costs of e-discovery,
and the duty to preserve ESI.96 These opinions helped influence e-discovery
law and were integrated into the 2006 Federal e-discovery Amendments.97
Because states like New York and Texas have had success deviating
from the Federal Rules and applying their own set of e-discovery rules or
case law precedent, Massachusetts courts will have similar success following
an electronic discovery model more workable than the FRCP. 98
III. The Massachusetts E-discovery Rules Should Be Amended to
Include a Social Media Component
An amendment addressing social media should be made to the newlyenacted Massachusetts e-discovery rules because of the difficulties
associated with the admissibility of social media evidence.99 Proponents
have advocated for new rules specifically addressing social media because
the current discovery structure is not suited to address these issues. 100 From
2010 to 2013, more than 900 cases implicating social media discovery were
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101 JOSEPH
108
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In Largent v. Reed, an auto accident case, the plaintiff alleged serious and
permanent injuries.111 The defendant discovered the plaintiffs Facebook
account and certain posts that repudiated her injury claims. 112 The court
granted the defendants Motion to Compel the plaintiffs username and
password because the defendant showed a good faith belief that the
evidence would be relevant. 113 The unrestricted access to social media
content displayed in these cases thwarts the normal discovery process. 114
Granting such sweeping access represents a break from traditional
electronic discovery orders.115 Allowing such unfettered access to this
information creates a slippery slopewithout a framework for courts to
follow, it seems that any social media evidence will be admissible. 116
B. Proposed Framework for an Amendment Addressing Social Media
Massachusetts should adopt a framework regarding social media
evidence modeled off case law.117 A recent Massachusetts Appeals Court
decision stated, More explicit instructions about the use of social media and
the Internet may [] be required.118 Simply because information exists on a
social networking site does not mean that a party should have unrestricted
access to that information.119 A court is most likely to accept requests for
social media content if they are specific, narrowly tailored, and
demonstrate a factual need for the evidence before it is turned over.120
In order to achieve efficiency in the e-discovery process, a discovery
protocol must be established.121 The first step must relate to relevancy: a
request for electronic information from a social media site must be
particularized and target specific information,122 overbroad requests should
111
116
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99
predicate with respect to the relevancy of the evidence); see, e.g., Schreiber, 904 N.Y.S.2d at 894
(pertaining to particularized search queries of a hard disk drive).
123 See Kregg v. Maldonado, 951 N.Y.S.2d 301, 302 (2012); see, e.g., Greenfield v. Bd. of
Assessment Review for Town of Babylon, 965 N.Y.S.2d 555, 557 (2013); Winchell v. Lopiccolo,
954 N.Y.S.2d 421, 42324 (2012).
124
127
133
100
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information is not released.134 The court will then deliver the relevant
information to the requesting partys attorney; the requesting party will
never be permitted to access the usernames and passwords to the social
networking accounts.135 Refraining from turning over usernames and
passwords will avoid privacy issues, phishing scams, identity theft, and
fraud.136 In addition, courts must incorporate authentication into the process
of determining whether social media evidence should be admitted. 137
IV. The Massachusetts E-discovery Rules Should Be Amended to
Include an Authentication Component
An authentication amendment should be made to the newly-enacted
Massachusetts e-discovery rules because of the complications surrounding
authenticating ESI.138 Certain courts are inclined to admit evidence and leave
the jury to decide questions of admissibility and weight of the evidence. 139
This is not a proper solution because authentication of evidence should rest
in the hands of those with more experience.140 As one judge stated, there
may be multiple ways to authenticate [electronic evidence], and careful
attention to all the possibilities may reveal a method that significantly eases
the burden of authentication.141
134 E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11CV02560MSK
MEH, 2012 WL 5430974, at *2 (D. Colo. Nov. 7, 2012); Richards, 953 N.Y.S.2d at 656; Gibbons
P.C., supra note 132.
135 Compare Howell v. Buckeye Ranch, Inc., No. 2:11CV1014, 2012 WL 5265170, at *1 (S.D.
Ohio Oct. 1, 2012) (finding that it was not appropriate to allow defendant access to plaintiffs
user name and passwords for social media accounts), with Largent v. Reed, No. 2009-1823, 2011
WL 5632688, (Pa. C.P. Nov. 8, 2011) (concluding that it was proper to give requesting party
access to user name and passwords of the plaintiffs social media accounts).
136 See Sara E. Stratton, Note, Passwords Please: Rethinking the Constitutional Right to
Informational Privacy in the Context of Social Media, 41 HASTINGS CONST. L.Q. 649, 664 (2014).
137
140
See Nyankojo v. N. Star Capital Acquisition, 679 S.E.2d 57, 59 (Ga. Ct. App. 2009)
(discussing what courts consider when deciding if sufficient evidence of authentication exists).
141 Sheldon M. Finkelstein & Evelyn R. Storch, Admissibility of Electronically Stored
Information: Its Still the Same Old Story, 23 J. AM. ACAD. MATRIM. LAW. 45, 56 (2010) (quoting
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 549 (D. Md. 2007)).
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142
144 Id.; see, e.g., Griffin, 19 A.3d at 422 (citing United States v. Drew, 259 F.R.D. 449, 452 (C.D.
Cal. 2009)) (describing a situation where a mother created a fictitious MySpace profile and used
the profile in a manner that caused a high school female student to commit suicide).
145
150
See Griffin, 19 A.3d at 424. But see Fox, supra note 65, at 21621.
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CONCLUSION
E-discovery is a relatively novel area of the law and specific guidance is
necessary. Massachusetts newly enacted e-discovery rules are a great
starting point for practitioners and judges. The Massachusetts rules, while
slightly modeled off the 2006 Amendments to the FRCP addressing ediscovery, propose new methods and solutions to dealing with the
intricacies of e-discovery. The Massachusetts rules are more clear and
expansive, providing better guidance than the FRCP.
Although the Massachusetts rules are more articulate than the Federal
Rules, specific amendments addressing social media and authentication
should be made to further increase clarity in the implementation of the rules.
The current Massachusetts rules are not suited to address the issues
surrounding social media and authentication as demonstrated by the
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