Judge Paul Grimm has written a scholarly treatise on the admissibility of ESI, which is cleverly disguised as a district court opinion denying cross motions for summary judgment. Lorraine v. Markel American Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007). Judge Grimm is the Chief Magistrate Judge for the District Court in Baltimore. He is a well known expert in this field, and a pretty nice guy who I had a chance to chat with at length in Sedona last month. At 101 pages, it is a long read, but I recommend you give it a try, and keep it handy for the next time you need to have ESI admitted into evidence at trial or considered with a summary judgment motion. I predict this will be an often quoted opinion as lawyers struggle not only with discovering ESI, but getting it admitted.
The facts of Lorraine are interesting, involving a yacht named Chessie struck by lightning (and thus the graphic above), and an ambiguous arbitration agreement, but ultimately the case itself is not too important. Suffice it to say the parties filed cross motions for summary judgment, and both attached emails to their motions without affidavits or any other type of authentication. Judge Grimm denied both motions because they failed to lay a proper predicate for the emails. No doubt the attorneys on both sides were feeling a bit like Chessie, as neither saw this ruling coming in a case over $21,900!
Judge Grimm then wrote the long opinion explaining how ESI should be admitted into evidence. Obviously this advice was intended for a larger audience than the two attorneys in Lorraine, and he has been thinking this over for a long time. In Judge Grimm’s words:
Because neither party to this dispute complied with the requirements of Rule 56 that they support their motions with admissible evidence, I dismissed both motions without prejudice to allow resubmission with proper evidentiary support. I further observed that the unauthenticated e-mails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium. Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence. Although cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence. Because there is a need for guidance to the bar regarding this subject, this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case. It is my hope that it will provide a helpful starting place for understanding the challenges associated with the admissibility of electronic evidence.
So now we have guidance aplenty from Judge Grimm. He states that five evidence rules must be considered and he provides a detailed elaboration on each:
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, or 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.
Judge Grimm happily noted that the above rules may not apply to every exhibit offered into evidence. Still, attorneys should make sure that they have satisfied the relevant criteria prior to submitting ESI as evidence for a motion or at trial. This case will serve as a good checklist and reference to help us all to do that.