Where is the Proof?

Yes, it is exciting to build a case using electronic documents, such as user-files (e.g. word processing programs) and electronically transmitted communications (e.g. e-mails). Few, if any, discovery issues in the last decade has spawned more opinions, articles and committee work than electronic discovery. The websites for The Sedona Conference and the Federal Judicial Center offer excellent starting points for the electronic discovery expert and novice alike. http://www.sedonaconference.com/; http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pages/196

But, somewhat surprisingly, there are far fewer cases and secondary sources discussing the standards for admitting electronic documents into evidence. The Court in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md. 2007), recognized both the relative scarcity of court opinions addressing admissibility standards and the different approaches taken by those courts. See http://www.lexisnexis.com/applieddiscovery/lawlibrary/LorraineVMarkel_ESI_Opinion.pdf.

Lorraine drives home the point that parties cannot assume that a jury or trial judge will ever see the proverbial smoking gun e-mail or other electronic document. In state courts, in particular, litigants may not be able to cite any jurisdictional rules or cases that provide the judge with an admissibility test. In business conspiracy and other unfair business practices cases, this uncertainty can be particularly challenging. This is because e-mails and user-files oftentimes store the majority of a company’s communications and knowledge. Thus, litigants who are unprepared to meet the most exacting admissibility standards may find themselves unable to counter their opponent's evidence. This creates a powerful incentive for opposing parties to stipulate to a protocol governing the admissibility of electronic evidence to remove the uncertainty.

Counsel is well advised to focus on admissibility issues early in discovery. By doing so, counsel can establish the foundational requirements needed to authenticate electronic documents and overcome any hearsay objections. It also stimulates dialogue between counsel regarding whether counsel can stipulate early-on to certain evidentiary issues.