At MSBA’s Legal Summit in June 2024, a distinguished panel discussed the admissibility of electronic stored information (ESI) and trial evidence. The discussion focused on the interplay between and among the evidentiary rules and multiple factors to consider if a proponent wants to admit electronic stored information. Also discussed was the opinion set forth in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), by Chief U.S. Magistrate Judge Grimm. All panelists agreed that the opinion in Lorraine provides an excellent outline to follow in order to admit or challenge the admissibility of electronic stored information. This article summarizes the panelists’ discussion and the Lorraine opinion.
Rule 401
Test for Relevant Evidence. The first evidentiary rule to be considered when a party wants to admit ESI as evidence is Rule 401. The test under Rule 401 is whether the evidence “has any tendency to make a fact more or less probable than it would be without the evidence.” The case note to the rule provides further explanation by defining relevancy as “not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.” Evidence that is not relevant is never admissible. See Fed. R. Evid. 402.
Rule 901 and 902
Authenticity. If a party gets past the first hurdle of relevancy, then the question must be asked if the evidence is authentic as required by Rule 901(a). To satisfy Rule 901(a), “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Rule 901(b) lists multiple examples that will satisfy the requirement of authentication, e.g. testimony of a witness with knowledge, opinion about a voice, public records. This is an important step in the process as authentication ensures the evidence is trustworthy. It is also important to remember that although 901(b) provides examples the list is not exhaustive. Rule 901(b)(4) (Distinctive Characteristics and the Like) has been used and recognized by multiple courts to authenticate ESI, including email, text messages, and the contents of websites. Rules 901(b)(7) (Evidence About Public Records) and 901(b)(9) (Evidence About a Process or System) are also popular methods to authenticate ESI.
Rule 902 also provides 12 ways by which ESI may be self authenticating, e.g. Domestic Public Documents That Are Sealed and Signed, Certified Copies of Public Records, Newspapers and Periodicals. Although all 12 of the specifically identified ways that ESI may be self authenticated under Rule 902, many federal courts have recognized the following as the easiest means to do so: 902(5) (official publications); 902(7) (trade inscriptions); and 902(11) (certified domestic records of regularly conducted activity).
Authentication may also be established through Rule 201 (Judicial Notice of Adjudicative Facts). As noted by Judge Grimm, “Judicial notice could be a helpful way to establish certain well known characteristics of computers, how the internet works, scientific principles underlying calculations performed within computer programs, and many similar facts that could facilitate authenticating electronic evidence.”
Other multiple ways to authenticate ESI include using Fed. R. Civ. P. 36 to request an admission from a party’s opponent to admit the authenticity of the ESI. In addition, Fed. R. Civ. P. 16(c)(3), the rule governing pretrial conferences, allows a party to request that opposing counsel stipulate to the authenticity of ESI evidence. Finally, pursuant to Fed. R. Civ. P. 26(a)(3), if a party properly discloses all of its ESI evidence to their opponent, their opponent has 14 days to file objections. If no objections are asserted, then all objections are waived except for objections to relevancy or prejudice, confusion, misleading, delay, wasting time or needlessly presenting cumulative evidence.
Rules 801, 803, 804 and 807
Hearsay and its exceptions. ESI is full of hearsay statements. Therefore, analyzing whether a statement is hearsay or non-hearsay is essential before moving to the next step. And, if the statement is hearsay, then one must ask if the evidence can be admitted under a specific exception to the hearsay rule under Rules 803, 804, and 807.
Particularly, reading Rules 801, 803, 804, and 807 together requires the proponent of ESI evidence to analyze the following: does the evidence constitute a statement, as defined by Rule 801(a); was the statement made by a "declarant," as defined by Rule 801(b); is the statement being offered to prove the truth of its contents, as provided by Rule 801(c); is the statement excluded from the definition of hearsay by rule 801(d); and, if the statement is hearsay, is it covered by one of the exceptions identified at Rules 803, 804 or 807.
When attempting to determine whether ESI is admissible in regards to hearsay issues, lawyers should pay special attention to whether the ESI evidence contains a statement, made by a person, which is offered for its substantive truth, but which does not fall into the two categories of statements identified in 801(d)(1) and 801(d)(2). If, as a result of this analysis, a determination is made that the evidence is hearsay, then it is inadmissible unless it is covered by one of the exceptions found in Rules 803, 804, and 807.
If ESI is relevant, authentic, and admissible under the hearsay rule or an exception thereto, it must also be admissible under the original writing rule before it can be admitted into evidence or considered at the summary judgment stage.
Rules 1001 through 1008
Original or Duplicates. Under Rule 1002, an original of the ESI will be required before proving its content unless there is another evidentiary rule or federal statute that provides otherwise. The purpose of Rule 1002, requiring the original of the ESI, is to prevent inaccuracies or fraud that might occur with duplicates. Therefore, the proponent of ESI must determine whether it is an original or duplicate? If the ESI is not an original, then the proponent must find admissible secondary evidence to prove the content of the ESI under the rules. Rule 1003 allows duplicates to be admitted unless the authenticity is questioned or it is excluded by Rule 403 (unfair prejudice). Rule 1004 provides exceptions to Rule 1002 (original required) stating that the original is not required when all originals are lost or destroyed, the original is not obtainable, the opponent has control of the document and has not produced it, or the ESI is not closely related to a controlling issue in the case.
Rule 1005 allows certified copies of public records to substitute for the original documents. Certified copies, with their verified accuracy, serve as a reliable and convenient alternative to the original. Rule 1006 allows summaries facilitating the presentation of ESI while simultaneously maintaining the availability of the originals for examination and scrutiny. In civil cases, the introduction of ESI is frequently voluminous. Therefore, the use of summaries under Rule 1006 is a particularly useful evidentiary tool.
Rule 1007 allows for a party to testify about the contents of ESI without having to produce the original. Rule 1008, ensures the jury makes the final determination of whether a piece of ESI is an original or a duplicate, or whether the ESI is what it purports to be.
Finally, in determining whether ESI should be admitted, parties must look to Rule 403 to analyze whether the probative value of the ESI is substantially outweighed by the danger of unfair prejudice
Rule 403
Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. Under Rule 403, a lawyer must determine whether the probative value of the ESI is 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.
Conclusion
If you are currently litigating a case where ESI is a relevant part of your case or your opponent’s case, the Lorraine case is an excellent resource. Many of the evidentiary rules in play for admitting ESI evidence are also triggered when trying to admit other forms of evidence. However, the Lorraine case applies these same rules to ESI, portraying clear and succinct examples to help the legal practitioner. In sum, Judge Grimm stated:
“. . . there are five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice. Although each of these rules may not apply to every exhibit offered. . . each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try. The Court hopes that the explanation provided in this memorandum order will assist in that endeavor.”
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This article was inspired and contents derived from the presentation Electronic Exhibits and Trial Evidence: The Wave of the Future, by William Steinwedel, Richard London, John Schropp, and Matthew Braun, as part of the MSBA’s 2024 Legal Summit in Ocean City. Additional material used to write this article was from Judge Grimm’s decision in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007)
William Steinwedel is a Supervising Attorney with the Maryland Legal Aid Bureau, Foreclosure Legal Assistance Project. His current practice focuses on representing clients in Chapter 7 and Chapter 13 bankruptcy and foreclosure mediations in order to help people save their homes. Williams is a 2007 graduate of Washington College and a 2019 graduate of Georgetown University Law Center. He is a past president of the Consumer Bankruptcy Section of the MSBA and a past winner of the Alan J. Belsky Award for contributions to the section.
Richard London is a creditor’s rights attorney. Richard is a past chairman of the MSBA Consumer Bankruptcy Section. He serves as co-chairman of the Montgomery County District Court Bench/Bar Committee and Prince George’s County Bar Association Annual Memorial Committee. Richard received his bachelor’s degree from the University of Maryland at College Park, a J.D. degree from the Washington College of Law at The American University, and an LLM from Georgetown University.
John Schropp is a staff attorney with the office of Brian A. Tucci, Chapter 13 Trustee. John obtained his law degree from the University of Maryland Francis King Carey School of Law, where he received an Asper Fellowship with the Honorable Stanley Sporkin of the U.S. District Court for the District of Columbia. Following graduation he served as a law clerk for the Honorable Allen Schwait of the Baltimore City Circuit Court. John was named a Rising Star in consumer bankruptcy in the year 2011 and selected to the Maryland Super Lawyers list from 2019 through 2023.
Matthew Braun is a supervising attorney with Maryland Legal Aid in the Prince George County office. Prior to that, he was a staff attorney with Maryland Legal Aid. Matthew obtained his law degree from the University of Baltimore School of Law where he received a Public Interest Fellowship. Following graduation he worked as the Public Interest Fellow with Maryland Legal Aid in the Prince George’s County office.