Understanding Electronically Stored Information (ESI) admissibility in the United States
Michele C.S. Lange, Esq., Kroll Ontrack
In early May 2007, the United States Federal District Court of Maryland issued a prominent decision, Lorraine v. Markel Am. Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007), relating to the admissibility of electronically stored information (ESI).
Much like the renowned Zubulake v. UBS Warburg opinions issued by Judge Scheindlin that explained the discoverability of ESI in civil litigation, Chief Magistrate Judge Paul W. Grimm in Lorraine becomes one of the first judges to issue an in-depth discussion on admitting electronically stored information (ESI) as evidence for a motion or at trial. Judge Grimm made it clear that U.S. judges should no longer admit e-mails into evidence, without further inquiry, simply because they were generated by a computer. With today’s technology, anyone could alter any aspect of an e-mail and make it look legitimate for a judge and jury without being asked to authenticate the source and reliability. The court then thoroughly outlined the five requirements necessary to admit ESI evidence.
- Is the ESI “relevant”?
The first hurdle that ESI needs to overcome is to determine if the evidence is relevant under Federal Rule of Evidence 401. To be relevant, evidence does not have to carry any particular weight--it is sufficient if it has "any tendency" to prove or disprove a consequential fact in the litigation.
- Is the ESI “authentic”?
A lawyer wanting to admit ESI evidence must show that the evidence in question is what the lawyer claims and that it is trustworthy under FRE 901. The court stated that before a lawyer can authenticate ESI, the type of ESI to be admitted must be identified for there are different standards depending on the medium since no single approach will work for all ESI. For instance, ESI can exist as e-mails, instant messages, web pages, computer animations, data or documents, or digital photographs.
- Is the ESI “hearsay”?
Just like other more traditional forms of evidence, ESI that satisfies the definition of hearsay under Rule of Evidence 801 is inadmissible unless it falls under one of the standard hearsay exceptions.
- Is the ESI an “original writing”?
The court noted that ESI evidence needs to be an “original writing” as required under Rule 1001. When counsel intends to offer electronic evidence, they must determine whether the original writing rule is applicable, and if so, they must be prepared to introduce an original, a duplicate original, or be able to demonstrate that one of the permitted forms of secondary evidence is admissible.
- Is the ESI “probative”?
The final step to consider in regards to admitting ESI evidence is the need to balance its probative value against the potential for unfair prejudice or other harm under Rule 403 of the Federal Rules of Evidence. A lawyer should consider whether the ESI would unfairly prejudice the party against whom it is offered, confuse or mislead the jury, unduly delay the trial of the case, or interject collateral matters into the case.
ESI is a major component of modern day litigation in both the U.S. and the U.K. As noted in the Lorraine opinion, U.S. counsel seeking to offer ESI as evidence at trial should be prepared to demonstrate admissibility, and if ESI is used as an exhibit to a motion, counsel should consider proactively including a statement of its admissibility. Evidentiary admissibility of ESI is an issue U.K. lawyers must understand and be prepared for should e-mail, word processing documents, spreadsheets, database information or any other form of computerised evidence be involved in one of their next cases.
Michele Lange is a Director at Kroll Ontrack Legal Technologies in the U.S.
Disclaimer
This document is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for research and information on the subject of legal technology. While every attempt has been made to ensure accuracy of this information, no responsibility can be accepted for errors or omissions. Recipients of information or services provided by Kroll Ontrack shall maintain full, professional, and direct responsibility to their clients for any information or services rendered by Kroll Ontrack.
Copyright 2007 Kroll Ontrack, Inc & Kroll Ontrack Legal Technologies Ltd.
