This is an excerpt from “Is It Real or Is It Memorex? The Looming Crisis of the Authenticity of Electronically Stored Information in Commercial Litigation,” written by Thomas E. Hilton with the Forensic & Valuation Services Group at Anders Minkler & Diehl LLP in St. Louis. Mr. Hilton prepared the article and will be presenting at the Law Education Institute’s National CLE Conference to be held in Vail, Colorado, January 3-7 with tracks covering several practice areas and business valuation. BVR Legal is a proud sponsor of the event.
An increasing number of federal judges are concerned that electronic records produced for use in litigation may have been altered or manipulated in some way prior to presentation to the court. Additionally, these judges are concerned that the programs or procedures used to create and maintain ESI [electronically stored information] cannot be relied upon to protect the information from alteration by corporate insiders. To lay a proper foundation for the admission of ESI, the court must be able to understand the genealogy of the data: how was the data created, to what extent does it contain computer-generated data as opposed to computer-stored data, who has responsibility for maintaining the integrity of the data, how has the data been maintained, what opportunities have existed for the data to be corrupted or manipulated, how does the specific evidence for admission compare to the underlying data it purports to represent, and whether the ESI satisfies the basic tenets of trustworthiness, accuracy, relevance, and probative value?
With this level of uncertainty surrounding the various aspects of ESI, is it any wonder the admissibility of ESI has become a core issue in litigation? Is it any wonder judges have become increasingly hesitant to admit evidence lacking a traceable pedigree? A relatively recent ruling demonstrates the level of doubt in the minds of judges with respect to the authenticity of proffered ESI in litigation and the resulting impact on its admissibility.
In May 2007, Chief U.S. Magistrate Judge Paul W. Grimm of the District of Maryland rendered an extensive and detailed memorandum opinion addressing the “many interrelated evidentiary issues associated with ESI” in the case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 538 (D. Md. 2007). In this case, Judge Grimm denied both party’s motions for summary judgment because the ESI evidence in support of the motions (particularly e-mails) were not properly authenticated. This opinion stands as the most comprehensive judicial analysis to date on the evidentiary issues affecting ESI and provides useful information to the forensic accounting expert and litigator alike.
Judge Grimm’s opinion sets forth a series of evidentiary hurdles in the form of the Federal Rules of Evidence that must be overcome for ESI to be admissible by the court. Specifically, the judge focused on FRE 901 and 902, which requires a proponent of evidence to establish its authenticity; that the evidence is what the proponent claims it to be, through either extrinsic evidence or self-authentication. FRE 901 provides 10 illustrations of methods of authentication that comply with the rule, and FRE 902 provides 12 methods of “self-authentication” in which extrinsic evidence of authenticity is not required. Judge Grimm’s opinion provides a stern warning to practitioners desiring to proffer ESI to the court, “Unless counsel knows what level of scrutiny will be required, it would be prudent to analyze electronic business records that are essential to his case or her case by the most demanding standard.”
In March 2008, The Sedona Conference Working Group on Electronic Document Retention & Production issued The Sedona Conference Commentary on ESI Evidence & Admissibility (Commentary). This document and a wealth of others can be found at thesedonaconference.org. This document is replete with references to Lorraine and quotes the opinion of Judge Grimm throughout its 21 pages of text. This publication, while not authoritative, provides the thinking of some of the best legal minds in the nation on the issue of authentication of ESI for purposes of litigation.
The Commentary explains that various types of ESI require different approaches for authentication, and explains how the various illustrations under FRE 901 and 902 may assist in the authentication process for the various types of ESI, such as e-mail, website postings, text messages, chat room content, and computer-stored records. Examples of a universally applicable authentication method would include a witness with personal knowledge (FRE 901). Absent such evidence, authentication would result from distinctly different methods that run to the distinctive characteristics of the given data. The appendix provides helpful guidance in the form of checklists, decision trees and practice tips to assist practitioners in determining whether the proper authentication that might be deemed conclusive by the court can be achieved.
Again, this is only an excerpt.