From E-Discovery To E-Admissibility? 'Lorraine v. Markel' And What May Follow

By Jon Neiditz, Jay Safer and Pat Hatfield

The recent decision in Lorraine v. Markel American Insurance Company, 2007 WL 1300739 (DMd May 4, 2007) by United States Magistrate Judge Paul W. Grimm is an excellent guide to an important aspect of the care that MAY be or become necessary when parties attempt to offer electronic information in evidence. In that case, involving contract interpretation issues, Magistrate Judge Grimm refused to allow either party to offer e-mails in evidence to support their summary judgment motions. He found they failed to meet any of the standards for admission under the Federal Rules of Evidence. The emails were not authenticated but simply attached to the parties' motions as exhibits, as has been a common practice. This alert summarizes Judge Grimm's opinion, and then discusses briefly where it may lead e-contract and other e-document management programs.

Little could the owner or insurer of the pleasure boat Chessie have known that the lightning that struck Chessie while it rested at anchor would ultimately ignite a 101-page opinion that may change the processes organizations employ to create, maintain, search, produce and proffer electronic documents. The trouble started after the initial claim was paid, when the boat was pulled out of the water and damage to the hull was discovered under the waterline. The dispute related to the parties' enforcement of their arbitration agreement relating to this later-discovered damage. Each of the parties attached to their pleadings emails exchanged in the course of negotiating the arbitration agreement. In a major departure from current common practice regarding electronic communications, the opinion states thateven though neither party directly challenged the admissibility of the other's email evidencethe court was not in a position to consider the emails, because no basis had been provided by the parties for admissibility or authentication.

How A Proponent Of Electronic Evidence May Lay Sufficient Foundation For Its Admission

Judge Grimm provides not only a review of the requirements for admitting electronic evidence under the Federal Rules of Evidence, but a practical discussion of some of the technology and document management issues raised by those requirements, such as hash values and other indicia of authenticity, metadata and collection techniques.1 He notes correctly that while there has been extensive discussion of the rules regarding discovery of electronically stored information ("ESI"), very little has been written 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." He does not ignore the complexity arising from the evidentiary "flavors," including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files."2 He notes that courts have recognized that authentication of ESI may require greater scrutiny than for the authentication of "hard copy" documents, but "they have been quick to reject calls to abandon the excising rules of evidence when doing so."3

Judge Grimm discussed five evidence standards ESI evidence must satisfy: (1) is the ESI relevant (under Rule 401); (2) is it authentic (under Rule 901(a)); (3) is it hearsay (under Rule 801) and, if so, does it constitute an exception under Rules 803, 804 and 807, (4) does it comply as an original or or duplicate under the original writing rule or, if not, can it be admitted pursuant to the admissible secondary evidence rules 1001- 1008 to prove the content of ESI and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or another factor identified by Rule 403.4

1. Relevance

Judge Grimm notes that proving that ESI has some relevance (i.e., evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable ) is not hard for counsel, but urges for ESI articulating all of what may be multiple grounds of relevance.5

2. Authentication

More complex is the requirement that ESI be shown to be authentic (that the matter in question is what the proponent claims under rules 901 and 902). Authentication of ESI may require greater consideration than required for paper documents, and courts will demand that proponents of ESI evidence pay more attention to the foundation requirements than has been customary for introducing paper evidence. Yet Judge Grimm notes only a prima facie showing is required, but counsel often fail to meet this minimal showing."6

While 901(a) addresses the requirement to authenticate, Rule 901(b) provides ten non-exclusive examples of how authentication of electronically generated or stored evidence may be accomplished.7 The important thing is to plan in advance how the electronic evidence will be authenticated because Courts have accepted a number of the methods discussed in Rule 901(b) as well as some methods not included in the Rules.

Judge Grimm focuses on these 901(b) examples:

901(b)(1) Testimony of witness with knowledge;8

901(b)(3) The authentication by "[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated;"9

The frequently-used Rule 901(b)(4), which permits authentication...