Wednesday, May 09, 2007

Another Judge Questions Admissability of Electronic Evidence

As further evidence that the judiciary is no longer willing to simply trust computers and everything they say to us, yet another court has undertaken to teach us what will be needed to have electronic evidence admitted. And, it looks to me like the skills that our cyberspace lawyers can bring to the table are well suited to that task.

In Lorraine v. Markel Am. Ins. Co. (USDC D. Md., No.06-1893, 5/4/07), Chief Magistrate Judge Paul W. Grimm laid out a near treatise-length standard on how he would analyze what he calls electronically stored information, or "ESI". And, he reserves his primary critiques not on the parties, or on the technologists, but rather on the lawyers seeking to have the ESI admitted.

Although he ended up discussing nearly every type of ESI that might come up as possible evidence in litigation, much of the opinion focused on e-mail. As noted in the opening paragraphs of the exposition:

[U]nauthenticated e-mails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium. Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.
Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self inflicted injury which can be avoided by thoughtful advance preparation.

Lawyers -- Just because it came from a computer does not excuse your forgetting the basic rules of evidence.

I could not possibly even begin to summarize the teachings of the opinion in a short blog entry. Go now and download your own copy here.

Lawyers, the days of simply printing out e-mails and hoping to get them into the court are soon to be behind us. And, cyberspace lawyers: Is this yet another opportunity for you to pose your own knowledge in these areas to the benefit of your litigation colleagues?

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