Lorraine v. Markel Am. Ins. Co., Case No. PWG-06-1893 (D. Md. May 4, 2007)
Chief U.S. Magistrate Judge Paul W. Grimm of the district court in Maryland recently shed light on the admissibility of electronically stored information (ESI), an issue "[v]ery little has been written" about, even though a lot of money and manpower are used to get ESI.
For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information (“ESI”). . . . Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. FED. R. CIV. P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.
Although the guidelines Judge Grimm provided in the 101-page opinion seem very similar to an analysis of the admissibility of non-ESI evidence, his opinion is nevertheless helpful, especially when he warned that "counsel should know how to get it right on the first try."
Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403,such that it should be excluded despite its relevance.