In actuality the beast was always around - prior to December discovery obligations did not exclude electronic information - but the issue mostly was pressed by aggressive counsel in large cases. Effective Dec. 1, however, the electronic discovery rules could no longer be ignored by lawyers at large. The gorilla was now roaring and lawyers everywhere fearfully had to adjust to the new regime. Often, it has been a time-consuming, expensive, even painful, adjustment. Federal district court judges and U.S. magistrate judges instantly became tough discovery police patrolling a new beat in a large digital neighborhood.1 Although the new federal rules have led the charge, state courts around the country are lining up in march formation. In New York, for example, electronic discovery tensions were sagely confronted and resolved even before the federal effective date by Nassau County Supreme Court Justice Ira B. Warshawsky in Delta Financial Corp. v. Morrison.2 The court observed that while federal precedent is not controlling on New York courts, it is instructive.3 The Conference of Chief Justices of State Courts established a Working Group on Electronic Discovery which has published some draft "Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information" to help reduce uncertainty in state court litigation. Individual states have adopted formal electronic discovery rules.4 More are working on them. Clearly, electronic discovery now commands a significant amount of attention and expenditure of resources. But while oceans of ink have been used in giving advice on ways to appease this newly expanded great god of discovery, very little has been written about what is required to insure that electronically stored information (ESI) obtained during discovery is admissible into evidence or put in an admissible form that can be used in summary judgment practice. At least, that is the view of Paul W. Grimm, Chief United States Magistrate Judge in the U.S. District Court for the District of Maryland. Judge Grimm, therefore, issued a comprehensive opinion on May 4 dealing with the evidentiary hurdles attorneys must clear in order to make ESI admissible at trial or useful for summary judgment motions. The opinion is Lorraine v. Markel American Insurance Co.5 and it is a "must-read." Detailed Analysis Judge Grimm's research failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence. He discerned a need for guidance to the bar and, thus, his opinion undertook a broader and more detailed analysis of these issues than required by the case before him. The goal was to provide a "helpful starting place" for understanding the challenges associated with admissibility of electronic evidence. This writer believes the objective was met. The lawyer's task doesn't stop here but Lorraine is a valuable starting point. The opinion is lengthy but chock full of detailed guidance, a kind of road map leading to the rules of evidence that may apply to a given item. Pertinent case law is cited. The wide variety of ESI is a complicating factor. For example, there are e-mails, Web site ESI, Internet postings, digital photographs, computer-generated documents, data files, computer simulations, animations and others. Then there are potential problems of reliability, alterations and manipulation of data. For example, e-mails or text messages, it can be argued, are inherently unreliable because of their relative anonymity and the difficulty of connecting an electronic message to a specific author with certainty. Unless the claimed author is actually witnessed sending the e-mail, there is a possibility it is not from him or her. Although a message can be traced to a computer, anybody with the right password can gain access to another's e-mail account and send a message ostensibly from that person. Conceivably, there may be authentication problems. The complexities have not escaped Judge Grimm's attention and he tackles them head-on. Because of the volume and variety of subject matter and evidentiary rules involved, our space limitations here do not permit detailed exposition of Judge Grimm's comprehensive analysis. That is why litigators should obtain and study the opinion itself and use it as a starting point for trial planning. Here, we survey only a few of the observations made and give some idea of the issues raised. Thus, for example, at the outset, the author notes that when ESI is offered as evidence, either at trial or in summary judgment, a number of evidence rules have to be considered. Evidence Rules Five questions and the corresponding rules of evidence are elaborated: (1) is the ESI "relevant" as determined by Federal Rule of Evidence (FRE) 401; (2) if relevant under 401, is it "authentic" as required by FRE 901(a); (3) if the ESI is offered for its substantive truth, is it "hearsay" as defined by FRE 801 and, if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI being offered an "original" or a "duplicate" under the "original writing" rule, or, if not, is there admissible secondary evidence to prove the ESI's content (FRE 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 FRE 403, which makes it excludable despite its relevance? When computers merely store data there may be fewer computer-specific authentication issues but, if a computer processes data, instead of merely storing it, then authentication issues could arise depending on the complexity and novelty of the computer processing. When computer data is developed, issues of accuracy can arise. There could be bad or incomplete data inputting, faulty output instructions, use of defective software programs, corruption of or damage to media storing the data, or mishandling. The security of the systems could be a factor. Because it is common for multiple versions of electronic documents to exist, questions can arise about which version is the "final" or legally operative one to be received in evidence. Sometimes, "hash values" or "hash marks" are used. These are algorithm-based identifiers that provide distinctive characteristics to electronic documents, a kind of digital "Bates stamp" which can help with authentication.6 Foundation Required The Federal Judicial Center's Manual for Complex Litigation has recommended that courts require a more extensive foundation for computer records. Some courts have followed this advice and required the proponent to prove the reliability of the particular computer used, the dependability of the business's input procedures for the computer, the use of proper procedures to obtain the document offered in court, and the witness's recognition of that document as the readout from the computer.7 Judge Grimm observes that lawyers offering electronic business records can expect to encounter judges tending towards some leniency but also those who are most demanding regarding a foundation for accuracy and reliability. In the absence of controlling precedent in the court where the action is pending, there may be uncertainty about which approach will be required. It would be prudent for the lawyer to plan to authenticate the electronic record by the most rigorous standard.8 Another kind of ESI presenting authentication challenges is digital photographs. Indeed, they are a form of electronically produced evidence that can be manipulated and altered easily. The image can be "enhanced" by removing, inserting or highlighting an aspect of the photograph. In automobile accident cases, for example, reconstructionists and engineers often place great emphasis on markings, scratches, shadows, dents and furrows on the inside or outside of the vehicle or gouge or skid marks on the roadway. Digital photographic enhancement could possibly make such markings "disappear" or "appear," a key evidentiary fact that might favor one litigant over another. Obviously, counsel's keen attention is in order. Computer animations and computer simulations are distinct forms of computer-generated evidence and may require different evidentiary foundations. Animations are the "display of a sequence of computer-generated images" that illustrate and explain a witness's testimony. A simulation, on the other hand, is based on scientific or physical principles and data entered into a computer, which is programmed to analyze the data and draw a conclusion from it. Simulations are treated as a form of scientific evidence, offered for a substantive rather than demonstrative purpose. Admissibility typically is conditioned on a sufficient showing that: (1) the computer functions properly; (2) the input and underlying equations are sufficiently complete and accurate (and amply disclosed to the other party for possible challenge); and (3) the program is generally accepted by the appropriate community of scientists.9 Needless to say, there is room for many foundational challenges with this type of computer evidence.10 Preliminarily, however, the fact finding necessary to determine the admissibility of ESI has to be viewed with reference to FRE 104, which governs the process. FRE 104's preliminary fact finding task involves subdivision (a) where the judge determines admissibility without being bound by the rules of evidence. Thus, the judge can consider hearsay or other evidence that would not be admissible if offered to a jury. The exception in rule 104(a) is an issue of privilege. Typical 104(a) preliminary matters are an expert's qualifications, admissibility of the expert's opinion or whether evidence is deemed hearsay and, if so, whether an exception applies to let the hearsay in. However, under FRE 104(b), where relevancy is conditioned on fact, the judge may only consider evidence that is itself admissible. Authentication Process So, is authenticity of a particular form of ESI a rule 104(a) issue or a 104(b) issue? Well, that involves looking at the authentication rule, FRE 901. Authentication here is viewed as a subset of relevancy. Accordingly, "resolution of whether evidence is authentic calls for a factual determination by the jury" and admissibility, therefore, is governed by FRE 104(b). That means the judge considers admissible evidence only. Judge Grimm observes, however, that determining whether ESI is authentic, and therefore relevant, is a two-step process. First the district court must determine if the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic. Second, since authentication is a question of conditional relevancy under FRE 104(b), "the jury ultimately resolves whether the evidence admitted for its consideration is that which the proponent claims."11 So, if an e-mail is offered into evidence, the determination of whether it is authentic would be for the jury and the facts that they consider in making this determination must be admissible into evidence. By contrast, were a question raised whether an e-mail is an admission by a party opponent or a business record and the facts are contested, then the admissibility of those facts would be decided by the judge under FRE 104(a). The rules of evidence, except for those with respect to privileges, are inapplicable.12 Judge Grimm's analysis of the hearsay hurdle is quite helpful. He posits five separate questions that must be answered: (1) does the evidence constitute a "statement" as defined by FRE 801(a); (2) was the statement made by a "declarant" as defined by FRE 801(b); (3) is the statement being offered to prove the "truth of its contents" as provided by FRE 801(c); (4) is the statement excluded from the definition of hearsay by FRE 801(d)(1); and (5) if the statement is hearsay, is it covered by one of the exceptions identified at FRE 803, 804 or 807?13 Thus, when an electronically generated record is entirely the functioning of a computerized system or process, such as the "report" generated when a fax is sent showing the number to which the fax was sent and the time it was received, there is no "person" involved in the creation of the record, and no "assertion" being made. Hence such a record is not a "statement" and cannot be hearsay. Courts have held that "nothing 'said' by a machine is hearsay"; that computer-generated records are not hearsay; that e-mails making imperative statements instructing what to do or asking questions are not hearsay; and that images and text posted on a Web site offered to show what the website looked like on a particular day were not "statements" within the hearsay rule.14 Judge Grimm also elaborates the hearsay exceptions contained in FRE 803. The "business records" exception under FRE 803(6) is particularly useful. It has an interplay with the authentication rule of FRE 902(11) since the latter helps establish the foundation elements for a business record without the need to call a sponsoring witness. However, use of this rule requires written notice of the intention to offer the record into evidence to all adverse parties and an opportunity for inspection by them sufficiently in advance of the offer to fairly allow challenges to the evidence. Admissibility of ESI is also important in summary judgment practice. As Judge Grimm reminds us, the evidence supporting the facts set forth by the parties must be such as would be admissible in evidence. With regard to documentary evidence, unsworn, unauthenticated documents are not considered. To be admissible at the summary judgment stage, documents must be authenticated by and attached to an affidavit that meets the requirements of Federal Rule of Civil Procedure 56(e) - that the documents must be admissible in evidence. Merely attaching copies of unauthenticated e-mails as exhibits to a party's motion is insufficient. Since electronic evidence will constitute much of the proofs of the future, proponents will need to be able to clear the admissibility hurdles while opponents of the evidence likely will seek to impose them. Lorraine gives litigators a running start on competing in that race. Michael Hoenig is a member of Herzfeld & Rubin. Endnote: _________________________________________________________________________________________ [1]. See e.g., U.S. Southern District of New York Judge Shira Scheindlin's highly regarded and often cited opinions in the Zubulake v. UBS Warburg LLC litigation, 217 FRD 309 (SDNY 2003) (Zubulake I); 216 FRD 280 (SDNY 2003) (Zubulake III); 220 FRD 212 (SDNY 2003) (Zubulake IV); 229 FRD 159 (SDNY 2005) (Zubulake VI). [2]. 819 NYS 2d 908 (Sup. Ct. Nassau Co. Aug. 17, 2006). See also Justice Warshawsky's later opinion holding an e-mail to be cloaked with the attorney-client privilege. 831 NYS 2d 352 (Sup. Ct. Nassau Co. Oct. 24, 2006). [3]. See M.A. Berman, "Developments in New York Electronic Discovery Law," New York Law Journal, Oct. 27, 2006, p. 4 (concluding that New York courts are "coming of age with respect to electronic discovery and their healthy respect in understanding the nuances associated with e-discovery.") [4]. See A.I. Cohen and D.J. Lender, "Electronic Discovery: Law and Practice," chapt. 2, Appendices 2C to 2J (Aspen Publishers, 2007 Supp.) (Delaware, Illinois, Mississippi, New Jersey, Texas, Virginia, Wyoming). [5]. 2007 U.S. Dist. LEXIS 33020 (D. Md. May 4, 2007) (Paul W. Grimm, Chief U.S. Magistrate Judge). [6]. Lorraine, 2007 U.S. Dist. LEXIS 33020, at *46-*47. [7]. Id. LEXIS, at *85 n. 35. [8]. Id. LEXIS, at *91. [9]. Id. LEXIS, at *96-*98. [10]. Id. LEXIS, at *97-*98. For example, (1) the underlying information could be unreliable; (2) entry of information into the computer could be erroneous; (3) the computer hardware could be unreliable; (4) the software programs could be unreliable; (5) the execution of the instructions could be unreliable; (6) the output (the transcript, printout or graphics) could be flawed; (7) security controlling access to the computer could be compromised; and (8) the user of the system could make errors. [11]. Lorraine, 2007 U.S. Dist. LEXIS 33020, at *18 - *25. [12]. Id. LEXIS, at *23 - *24. [13]. Id. LEXIS, at *106. [14]. Id. LEXIS, at *113-*116. |
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