Evidentiary Principles and Issues with Electronically Stored Information

June 24, 2011

1. Some key procedural rules: a. Fed. R. Civ. Proc. Rules 16 (S.D. Rule 16.2) (Pretrial Conferences; Scheduling; Management) & 26 (S.D. Rule 26.1) (Discovery) b. Fed. R. Crim. Proc. 16 (Discovery) and 17.1 (Pretrial Conference) 2. A must-read case: Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D. Md. 2007). 3. Two great articles: a. Hon. Paul W. Grimm, Michael V. Ziccardi, Esq., Alexander W. Major, Esq., Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information, 42 Akron L. Rev. 357 (2009). b. Hon. James P. Flannery, Jr., Using Video at Trial: The Big Picture, 95 Illinois Bar Journal 642 (Dec. 2007). 4. A general approach to ESI (excerpted from the Grimm, Ziccardi and Major article): 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, 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. . . .

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Evidentiary Principles and Issues with Electronically Stored Information

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The following table lays out some of the most common types of electronic evidence and the rules used to authen8cate them. [Note: this table is derived from the Grimm and Zaccardi ar8cle above. It merely lays out in tabular form informa8on that exists textually in that ar8cle.]

Types of Electronic Evidence

Email Internet Websites Chat Room and Text Messages Computerized Records or Data Computer Animations Computer Simulations Digital Photographs

Applicable Rules
Rule 901(b)(1), Testimony of a Witness with Knowledge Rule 901(b)(3), Comparison by Trier or Expert Witness June 24, 2011 Rule 901(b)(4), Distinctive Characteristics and the Like Rule 901(b)(1), Testimony of a Witness with Knowledge Rule 901(b)(3), Comparison by Trier or Expert Witness Rule 901(b)(4), Distinctive Characteristics and the Like Rule 901(b)(7), Public Records or Reports Rule 901(b)(9), Process or System Rule 901(b)(1), Testimony of a Witness with Knowledge Rule 901(b)(4), Distinctive Characteristics and the Like Rule 901(b)(1), Testimony of a Witness with Knowledge Rule 901(b)(4), Distinctive Characteristics and the Like Rule 901(b)(1), Testimony of a Witness with Knowledge Rule 901(b)(4), Distinctive Characteristics and the Like Rule 901(b)(1), Testimony of a Witness with Knowledge" Rule 901(b)(4), Distinctive Characteristics and the Like Rule 901(b)(9), Process or System

Christopher W. Behan Assistant Professor Southern Illinois University School of Law Carbondale, Illinois 62901