In Lorraine, the parties were engaged in litigation over disputed terms of an arbitration agreement that was entered in June 2006. Plaintiffs subsequently brought an action in the District Court of Maryland to enforce a private arbitrator’s award finding that the damage to their yacht, the Chessie, was caused by a lightning strike in May 2004 while the yacht was anchored in the Chesapeake Bay. The arbitrator found that lightning was the cause of the damage, but limited the award to $14,100. Plaintiffs brought the action to enforce the arbitrator’s finding, but also to set aside the limits placed on the award, claiming the arbitrator exceeded his authority. Defendant/Counter-Plaintiff Markel American Insurance Company counterclaimed to enforce the arbitrator’s award (including its damage limitation) in full.

After discovery, Plaintiffs filed a motion for summary judgment, and Defendants filed a response in opposition as well as a cross motion for summary judgment. The court denied both motions because neither party supplied any evidentiary foundation to support the various ESI that it sought to have entered into evidence. Instead, each party simply attached the ESI as exhibits to its motion – a method that most practitioners have done and continue to do.

Rather than simply denying both parties’ motions, Judge Grimm took the opportunity to discuss how ESI should be proffered pursuant to the Federal Rules of Evidence. In doing so, he identified five broad evidentiary considerations that arise whenever ESI is offered as evidence: Is the ESI relevant as determined by Rule 401; If relevant under 401, is it authentic as required by Rule 901(a); 1. If the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and, if so, is it covered by an applicable exception; 2. Is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or, if not, is there admissible secondary evidence to prove the content of the ESI; and 3. Is the probative value of the ESI 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.

1. Relevance of ESI

Judge Grimm first examined the special relevance concerns for ESI evidence. The basic rule of relevance does not set a significantly high threshold, requiring only that the proffered evidence tends to make the existence of any material fact “more or less probable that it would be without the evidence.” Fed. R. Evid. 401. Establishing that ESI has at least minor relevance to a material issue in the case is generally not difficult.

2. Authenticity of ESI

Once the proponent of ESI evidence establishes the evidence’s relevance, he or she must show the ESI’s authenticity under Rules 901 and 902. Authentication requires a prima facie showing that the evidence is what it purports to be, and, although this is not a severe burden, it does raise issues unique to electronic evidence. Judge Grimm discussed how certain methods of authentication operate when applied to ESI. For example, Rule 901(b)(4) allows for authentication by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” This method has unique applications in the context of ESI. First, courts allow authentication under Rule 901(b)(4) using “hash values” or “hash marks” when making electronic documents. Hash values are numerical identifiers that can be inserted into electronic documents to create “distinctive characteristics” that can satisfy this rule. Another way Rule 901(b)(4) can be used to authenticate ESI is through the evidence’s metadata. Metadata is the automatically recorded information describing the history and statistics of a given document. Judge Grimm pointed out that the use of metadata is not always conclusive because of the risk of third party access to ESI on networked systems; however, he noted that metadata can be a useful source of distinctive characteristics.

3. Authentication of Particular Types of ESI

In general, authentication of ESI requires careful attention to the type of evidence proffered because courts apply differing standards depending on the form of the ESI.

A. E-mails - Particular issues are important when authenticating e-mail evidence. Circumstantial evidence of the sender’s e-mail address in the document indicates that the named sender was the source of the e-mail; however, the sender’s address alone is not conclusive because of potential outside access to the sender’s e-mail account. Similarly, the contents of an email may provide distinctive characteristics in the form of unique information known only to the sender and recipient. Judge Grimm listed the methods of authentication most frequently used for e-mails as: (1) testimony by a witness with personal knowledge; (2) expert or fact finder comparison with authenticated examples; (3) distinctive characteristics, including circumstantial evidence; (4) trade inscriptions; and (5) certified copies of business records.

B. Website Postings - The main concern with authenticating website postings is the difficulty of attributing website content to the sponsor of the website rather than to a third party. Some factors that assist a court in finding that a website posting is properly authenticated include: the length of time the information was posted, whether it remains posted for the court to verify, whether the owner has published such information elsewhere, whether others have cited that website as the source of the information, and whether the information is of the sort usually found on the website. Judge Grimm listed the methods of authentication most frequently used for website postings as: (1) testimony by a witness with personal knowledge; (2) expert testimony; (3) distinctive characteristics; (4) public records; (5) system or process capable of producing a reliable result; and (6) official publications.

C. Text Messages and Chat Room Content - Text and chat room messages are similarly difficult to attribute to a specific party. Factors to consider in authenticating these types of ESI include: evidence that an individual used the screen name in question in chat rooms, evidence that the person using the screen name identified himself in the chat room, evidence that the individual had information given to the person through the screen name, and evidence from the person’s computer showing use of the screen name. Judge Grimm listed the methods most likely to be used in authenticating chat room and text messages as: (1) testimony by a witness with personal knowledge; and (2) circumstantial evidence of distinctive characteristics.

D. Computer Stored Records and Data - Electronic records are now a common method of data storage for businesses. Most courts tend to be lenient in authentication requirements for such records; however, some courts have begun to require a showing of the accuracy and reliability of computer records before allowing them to be authenticated. At least one court has adopted an 11-step foundation for computer records, which establishes the reliability of the computer system, the business’s data input procedure, and the witness’s knowledge of the record output. Given the wide disparity between standards employed by various courts, it is best to be prepared to authenticate computer records by the most stringent requirements. Judge Grimm listed the methods most likely to be used in authenticating computer records as: (1) testimony by a witness with personal knowledge; (2) expert testimony; (3) distinctive characteristics; and (4) system or process capable of producing a reliable result.

E. Computer Animation and Computer Simulations - Computer animations are generally admitted if authenticated by “testimony of a witness with personal knowledge of the content of the animation and upon a showing that it fairly and adequately portrays the facts and that it will help to illustrate the testimony given in the case.” Computer simulations are treated as a form of scientific evidence. Therefore, they are only admissible upon a showing that the computer is functioning reliably and that the input used to produce the simulations is also reliable. Judge Grimm listed the methods most likely to be used in authenticating computer animations and simulations as: (1) testimony by a witness with personal knowledge; and (2) testimony of an expert witness.

F. Digital Photographs - Original digital photographs may be authenticated by a witness with personal knowledge of the scene depicted. If the evidence is a digitally converted image, authentication may require testimony about the reliability of the process used to convert the image by a witness with personal knowledge of the technical process. Digitally enhanced photographs are images in which features of the original scene are altered (for example, shadows removed, colors enhanced). To authenticate a digitally enhanced image, a proponent will have to present proof that the process produces reliable and accurate results, which implicates the standards for scientific evidence under Rule 702.

G. ESI and Hearsay - Once ESI evidence is authenticated, a party must address its potential exclusion under the hearsay rule. Under Rule 801, hearsay is a statement made by a declarant offered to prove the truth of the matter asserted. ESI evidence often raises the question of whether the evidence is a “statement.” Some courts have held that writings produced by machines are not statements and cannot be hearsay. Furthermore, nonassertive electronic evidence, such as an image from a website used to show the appearance of the website on a given date, is not a “statement” and, therefore, is not hearsay. Statements found in electronic evidence have been found to satisfy the definition of “admissions by party opponents” if offered against that party, and, thus, they are admissible as non-hearsay under Rule 801(d)(2).

Statements contained in electronic evidence may also be admissible as hearsay exceptions. Statements in e-mails can be admissible as present sense impressions, excited utterances, and as evidence of a then-existing state of mind, so long as the requisite elements of those exceptions are met. Rule 803(6) allows an exception to the hearsay rule for records kept in the ordinary course of business. Some courts require all contributors to an e-mail chain to have written pursuant to a business duty. In other cases, courts have been more lenient and have admitted e-mail chains absent proof of actual alteration. Given the different standards for admitting electronic records under the business record hearsay exception, Judge Grimm recommended that a lawyer obtain a stipulation of genuineness or else be prepared to establish the exception under the most rigorous requirements.

5. ESI and Balancing Probative Value Against Unfair Prejudice: Rule 403

Rule 403 applies to all questions of admissibility; however, there are certain types of ESI for which the balance of probative value against the risk of unfair prejudice is particularly important. First, when evidence such as an e-mail or website posting contains highly offensive language that is likely to provoke an emotional response, it may be inadmissible as overly prejudicial. Second, when computer animations pose a high risk that the jury may confuse them with the actual events at issue in the case, they may be inadmissible. Third, when summaries of voluminous computer records are offered under Rule 1006, they may be inadmissible if the effect of the summary is to create unfair prejudice. Finally, Judge Grimm pointed out that if a court has serious concerns as to the accuracy of information contained in electronic evidence, a court may use Rule 403 as a means of excluding the evidence as overly prejudicial.

Conclusion

With the ever-burgeoing reliance on electronic communications, it is not surprising that the onus has never been greater for companies to track and store electronic records. Likewise, it is not surprising that electronic records are increasingly finding their way into the courtroom. In his decision, Judge Grimm outlines how ESI can be used as evidence and provides details about the standards for using different types of ESI in a courtroom. While the rules covered in this article apply to all forms of evidence, Judge Grimm’s opinion identifies the unique concerns that are raised for electronic evidence. If properly followed, you should avoid the possible pitfalls associated with failing to authenticate ESI as evidence.

References

[1] Maurice A. Bellan is a Partner in Saul Ewing LLP’s Litigation Department. He has served as lead counsel in federal, state and administrative court actions involving trademark infringement, employment discrimination, whistleblower claims, environmental waste, real estate and contract disputes. He represents the transportation, manufacturing, environmental, temporary staffing and government contracting industries. Mr. Bellan can be reached at 410.332.8683 and mbellan@ saul.com.
[2] W. Damon Dennis is an Associate in Saul Ewing LLP’s Litigation Department. He concentrates his practice on commercial and other litigation. He has experience handling cases in a wide range of areas, including general complex litigation, real estate litigation, business torts and contract disputes. Mr. Dennis can be reached at 410.332.8725 and ddennis@saul.com. (Kathryn L. Doran, a 2007 summer associate, also contributed to this article).