"Over the past several years, countless authors have published articles on a variety of topics surrounding electronically stored information and e-discovery. Much of this literature has dealt with collection, preservation and production of ESI, while comparatively fewer articles have discussed the important issues surrounding whether and under what circumstances ESI is admissible as evidence. As United States Magistrate Judge Paul Grimm recently observed in his thorough discussion of admissibility of ESI in Lorraine v. Markel, 241 F.R.D. 534 (D. Md 2007):
"[C]onsidering 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, Web site ESI, internet postings, digital photographs, and computer-generated documents and data files."
This article provides an overview of some of the unique evidentiary issues that have arisen in the ESI context, as well as a few guidelines to keep in mind when pursuing discovery of ESI to help ensure its admissibility."