The subject of admissibility of electronically stored information ("ESI") has not been explored in detail by the courts. Discovery of ESI can be very expensive; yet, practitioners have no clear guidelines as to how to ensure their ESI is admissible at trial or for summary judgment purposes—enter Lorraine v. Markel American Insurance Company. The court in Lorrainewrote a decision that could qualify as the most concise and complete exposition of admissibility analysis related to electronic evidence. The court felt it was necessary for someone to lay out the rules of admissibility of electronic evidence, because of the unique nature of ESI. As chief magistrate Paul W. Grim stated:
It makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary "flavors," including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.
Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007) (citations omitted). To that end, the court started with the premise that the admissibility of ESI 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." Id. "Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible." Id. Whenever ESI is offered as evidence, either at trial or in summary judgment, every attorney must evaluate whether the ESI:
1. is relevant as defined by Federal Rule of Evidence 401;
2. is authentic as defined by Federal Rule of Evidence 901(a);
3. is not hearsay pursuant to Federal Rule of Evidence 801, or falling under an applicable exception, if it is being offered to prove the truth of the matter asserted;
4. is an original or duplicate under the original writing rule, and if not, whether there is admissible secondary evidence to prove the content of the ESI; or
5. has probative value that is substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Federal Rule of Evidence 403, such that it should be excluded despite its relevance.
Id. However, before considering these five evidentiary concerns, the admissibility of ESI is preliminarily governed by Federal Rule of Evidence 104. Pursuant to Rule 104(a), the judge must determine whether a proponent of the ESI has offered a satisfactory foundation from which a jury could reasonably find that the evidence is authentic. Id. at 539. Having determined the evidence is conditionally relevant, the jury ultimately determines whether the evidence submitted is authentic. Lorraine, 241 F.R.D. at 539. With this understanding, an attorney seeking to offer ESI into evidence can then focus on the five evidentiary hurdles as explained in Lorraine.
A. Relevance
The first evidentiary hurdle to overcome in establishing the admissibility of ESI is to demonstrate that it is relevant, as defined by Federal Rule of Evidence 401. Id. at 540. As a general matter, there should be no difference between finding relevance for electronic evidence and regular evidence. An attorney simply needs to show that the electronic evidence to be admitted has some tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See Fed. R. Evid. 401.
B. Authenticity
Assuming the proponent of ESI establishes its relevance, the next step is to demonstrate that it is authentic. An attorney must show that the evidence is authentic under Federal Rule of Evidence 901(a), specifically, that "the matter in question is what the proponent claims." Lorraine, 241 F.R.D. at 541-42 (citing Fed. R. Evid. 901(a)). This is not a particularly high barrier to overcome, although a few courts have held that electronic evidence should be held to a different standard than the "hard-copy" counterparts. Lorraine, 241 F.R.D. at 542. "The argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty." Id. at 543 (citing In Re F.P., A Minor, 878 A.2d 91, 95-96 (Pa. Super. Ct. 2005)). Unless the purported author is actually witnessed sending the e-mail, there is always the possibility it is not from whom it claims.
However, the court in Lorraine recognized that the same uncertainties exist with traditional written documents. Id. For instance, signatures can be forged; letters can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen. Id. Thus, the Lorraine court acknowledged and adopted the general understanding that electronic documents such as e-mail should only need to be authenticated on the basis of Rule 901 without additional requirements. Id. at 543.
Unfortunately, Rule 901 does not explain how to prove that the evidence is what the proponent claims it to be. Instead, Rule 901(b) sets forth examples regarding how to authenticate electronic evidence. For example:
· testimony of a witness with knowledge that the matter is what it is claimed to be;
· comparison by the trier of fact or an expert witness with specimens that have been authenticated;
· showing distinctive characteristics and the like (for example, e-mail address, hash values, or the reply doctrine) in conjunction with the circumstances;
· public records or reports from the public office where items of this nature are kept; and
· evidence describing the process or system used to produce a result and that the system produces accurate results.
Fed. R. Evid. 901(b). The Advisory Committee Notes for Rule 901 state that the list is non-exclusive. Although each of the Rule 901(b) examples may be used in various circumstances, one example, in particular, is worth noting here. Showing distinctive characteristics under Rule 901(b)(4) is most frequently used to authenticate e-mail and other electronic records. It permits exhibits to be authenticated or identified by "appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances." Fed. R. Evid. 901(b)(4). Courts have recognized this rule to authenticate e-mail, text messages, and the content of websites. Lorraine, 241 F.R.D. at 546 (citations omitted).
Thus, pursuant to the Federal Rules of Evidence, parties have a couple of unique ways to authenticate electronic evidence. As stated above, one method of authenticating electronic evidence under Rule 901 is by using hash values that can be inserted into original electronic documents when they are created, providing the unaltered document with a distinctive marker. Id. at 546-47. Another method of authenticating electronic evidence is by examining the metadata. Id. at 547. Metadata is information about a particular data set which describes how, when, and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements, and media information). Id. It is important to remember that pursuant to Federal Rule of Civil Procedure 34, a party may request production of ESI in its native format, which includes the metadata for the electronic document. Fed. R. Civ. P. 34. Because metadata shows the date, time, and identity of the creator, it can be effectively used to show various iterations of a website or to impeach a witness's testimony regarding the chronology of events involving ESI.
Moreover, some courts have held documents are presumed to be authentic if they were provided during discovery by an opposing party, shifting the burden to the producing party to demonstrate that the evidence is not authentic. Lorraine, 241 F.R.D. at 552-53 (citations omitted).
C. Hearsay
"The fourth hurdle that must be overcome when introducing electronic evidence is the potential application of the hearsay rule." Id. at 562. "Hearsay issues are pervasive when electronically stored and generated evidence is introduced." Id. An attorney seeking to admit ESI must properly analyze the following five separate questions:
- Does the evidence at issue constitute a statement?
- Was the statement made by a declarant?
- Is the statement being offered to prove the truth of its contents?
- Is the statement excluded from the definition of hearsay by Federal Rule of Evidence 801(d)?
- If the statement is hearsay, is it covered by one of the exceptions?
Id. at 562-63.
1. Statement
The key to understanding the hearsay rule as it applies to ESI is to appreciate that it "only applies to intentionally assertive verbal or non-verbal conduct, and its goal is to guard against the risks associated with testimonial evidence: perception, memory, sincerity and narration." Id. at 563 (citations omitted). The word "statement" is "used in a very precise, and non-colloquial sense-it only applies to verbal conduct (spoken or written) or non-verbal conduct that is intended by a human declarant to be assertive." Id. Therefore, non-verbal conduct that is not assertive, and verbal conduct, either spoken or written, that is non-assertive should fall outside the definition of statement. Lorraine, 241 F.R.D. at 563.
2. Declarant
The second question in the hearsay analysis "is closely tied to the first." Id. at 564. "A writing or spoken utterance cannot be a 'statement' under the hearsay rule unless it is made by a declarant, as required by Rule 801(b), which provides that a declarant is a person who makes a statement." Id.
Because a declarant must be a person in order for the utterance to be a statement, electronically generated records cannot be hearsay. Id. Thus, courts have found that computer-generated headers, telephone records, and images and text posted on websites fall outside the hearsay rule because no person is involved and no assertion is being made. Id. at 565. Instead, courts have found that the admissibility of computer-generated records should be measured by the reliability of the system itself, relative to its proper functioning and accuracy. Lorraine, 241 F.R.D. at 565.
3. Used to Prove the Truth of the Matter Asserted
"The third question that must be answered in determining if evidence is hearsay is whether the statement is offered to prove its substantive truth, or for some other purpose." Id. The same analysis used for non-electronic information is used for ESI as it relates to Federal Rule of Evidence 801(c). Thus, statements that are not hearsay include statements offered to:
· show that the statement was made;
· prove a claim that the statement was false or misleading;
· prove the listeners had notice or knowledge of the information contained in the statement;
· prove an association between two or more persons;
· establish circumstantial evidence of the declarant's state of mind or motive; or
· statements that are questions or imperative commands.
Id. at 566-67 (internal quotations and citations omitted).
4. Exclusion under Federal Rule of Evidence 801(d)
"Once it has been determined whether evidence falls into the definition of hearsay because it is a statement, uttered by a declarant, and offered for its substantive truth, the final step in assessing whether it is hearsay is to see if it is excluded from the definition of hearsay," id. at 567, by Federal Rule of Evidence 801(d)(1) as a prior inconsistent statement, prior consistent testimony, or prior identification of a person after perceiving that person. Furthermore, evidence that is an admission by a party opponent is excluded from hearsay. Fed. R. Evid. 801(d)(2). Because of the widespread use of email and other electronic means, it is not surprising that e-mails are admissible as non-hearsay because they are admissions by a party opponent if offered against the party. Lorraine, 241 F.R.D. at 568.
5. Exceptions
Electronic statements often describe observations of surrounding events such as how one feels emotionally or physically and one's plans and motives. Accordingly, courts have utilized Rule 803 exceptions in hearsay analysis, particularly exceptions such as the "Present Sense Impression," "Excited Utterance;" "then Existing State of Mind or Condition;" "Business Records;" and "Public Records." See Lorraine, 241 F.R.D. at 568-76. Thus, parties should carefully consider whether one of these exceptions applies to the electronic evidence it seeks to admit in evidence.
D. The Original Writing Rule
Electronic evidence must also comply with the original writing rule. This rule requires an original or duplicate original to prove the contents of the evidence unless secondary evidence is deemed acceptable. See Fed. R. Evid. 1001, et seq. When analyzing the original writing rule as applied to electronic evidence, parties should focus on Federal Rules of Evidence 1001, 1002, 1004, 1006, and 1007. A computer record may qualify as an original writing under Rule 1001 if it accurately reflects the contents of another writing and was prepared near the time that the original writing was prepared. Lorraine, 241 F.R.D. at 577. However duplicates are more often admitted into evidence than originals, and Rule 1003 has virtually eliminated "best evidence" objections. Id.
E. Probative Value v. Unfair Prejudice
Finally, an attorney must balance the probative value of the electronic evidence to be admitted against the potential for unfair prejudice or other harm under Federal Rule of Evidence 403. Courts are particularly likely to consider whether the admission of electronic evidence would be unduly prejudicial in the following circumstances:
- when the evidence would contain offensive or highly derogatory language that may provoke an emotional response;
- when analyzing computer animations in order to determine whether there is a substantial risk that the jury may mistake the animations for actual events in the litigation;
- when considering the admissibility of summaries of voluminous electronic writings, recordings or photographs under Rule 1006; and
- where the court is concerned about the reliability or accuracy of the information that is contained within the electronic evidence.
Lorraine, 241 F.R.D. at 584. Thus, attorneys offering electronic evidence, particularly animations, may find the evidence challenged with a Rule 403 objection and must be prepared to explain to the court why the evidence is not unfair.
In conclusion, ESI is here to stay. The days of finding a case-changing paper document are all but over. Today, the "smoking" gun is likely an e-mail—and quite possibly one that has been deleted. Through an understanding of the Rules that relate to ESI and the cases that interpret them, you can better prepare yourself and your clients for the new age of electronic discovery.
Chris Hanslik is the Vice Chairman of Boyar Miller, practicing in the firm's Litigation Group. He has extensive experience representing clients in a variety of complex business and employment litigation matters in State and Federal courts throughout the country, many of which have involved electronic evidence.
