march 5th -6th, 2015 law...apr 10, 2007 · 2015 family law conference. presented by the family law...

March 5th -6th, 2015

2015 Family Law Conference Presented by the Family Law Section

Wednesday, March 4, 2015

3 p.m. – 5:30 p.m. REGISTRATION (Bristlecone Convention Center, White Pine Room)

Thursday, March 5, 2015

7 a.m. – 5:30 p.m. REGISTRATION (Bristlecone Convention Center, White Pine Room)

7 a.m. – 9 a.m. BREAKFAST (BCC, Main Room)

8 a.m. – Noon NUTS AND BOLTS OF FAMILY LAW PRACTICE (Jail House – Banquet Room) (4.0 CLE credit hours, separate registration required)

Ed Kainen, Kainen Law Group, Las Vegas

Gary Silverman, Silverman Decaria & Katelman, Reno

9 a.m. – Noon ADVANCED TRACK: E-DISCOVERY IN THE FAMILY LAW WORLD (BCC, Main Room) (3.0 CLE Credit hours, separate registration required)

James A. Hennehoefer, Vista, California

Gordon D. Cruse, San Diego, California

Ishi Kunin, Kunin & Carman, Las Vegas (Moderator)

Noon – 1:15 p.m. LUNCH BUFFET (all) (BCC, Main Room)

Justice Michael Douglas (The ONE Campaign & Pro Bono Service)

Louise Helton, Displaced Homemaker Program

1:15 p.m. – 2 p.m. SECTION MEETING (BCC, Main Room)

2 p.m. – 4 p.m. PARALEGAL TRACK: LEGAL WRITING 101 (BCC, Pinion/Sage/Juniper)

Honorable Mark P. Painter (Ret.), Cincinnati, Ohio

2 p.m. – 4 p.m. RELOCATION CONSIDERATIONS IN THE MODERN WORLD (BCC, Main Room) (2.0 CLE hours)

Dr. Robert A. Simon, PhD, San Diego, California

Michael Carman, Kunin & Carman, Las Vegas (Moderator)

Katherine L. Provost, Dickerson Law Group (Moderator)

4 p.m. – 4:15 p.m. PARALEGAL TRACK: BREAK

4 p.m. – 4:30 p.m. LEGISLATIVE UPDATE (BCC, Main Room) (0.5 CLE hour)

Kim Surratt, Surratt Law Firm, Reno and Las Vegas

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4:30 p.m. – 6 p.m. TOP TEN THINGS EVERY FAMILY LAW PRACTITIONER SHOULD KNOW ABOUT WILLS,

TRUSTS AND ESTATES (BCC, Main room) (1.5 CLE hours)

Dara Goldsmith, Goldsmith & Guymon, Las Vegas

Julia Gold, Law Offices of Julia S. Gold, Reno

Michaelle DiGrazia Rafferty, Maupin, Cox & LeGoy, Reno

Hearing Master Amy Mastin, 8th Judicial District Court, Las Vegas

Honorable Chuck Weller, 2nd Judicial District, Reno (Moderator)

4:15 p.m. – 5:45 p.m. PARALEGAL TRACK: LEGAL WRITING 101 (cont’d) (BCC, Pinion/Sage/Juniper)


7 p.m. – 10 p.m. ANNUAL BANQUET (all) (BCC, Main Room)

Friday, March 6, 2015

7 a.m. – 8 a.m. BREAKFAST (BCC, Main Room)

8 a.m. – 9:30 a.m. LEGAL WRITING (BCC, Main Room) (1.5 CLE hours)


Margaret Pickard, Las Vegas (Moderator) 9:30 a.m. – 11 a.m. TAX IMPLICATIONS IN DIVORCE (BCC, Main Room) (1.5 CLE hours)

Honorable John C. Lenderman (Ret.), St. Petersburg, Florida

Shelly Booth Cooley, Las Vegas (Moderator)

9:30 a.m. – 11 a.m. PARALEGAL TRACK: GUARDIANSHIP – PREPARING THE FILE, THINGS TO CONSIDER (BCC, Pinion/Sage)

Melissa Exline, Surrat Law Practice, Reno

11 a.m. – 11:15 a.m. BREAK (all)

11:15 a.m. – 12:15 p.m. NEVADA SUPREME COURT ON THE NEVADA COURT OF APPEALS (BCC, Main Room) (1.0 CLE hour)

Chief Justice James Hardesty, Supreme Court of Nevada

11:15 a.m. – 12:15 p.m. PARALEGAL TRACK: INVESTIGATION – THINGS TO CONSIDER (BCC, Pinion/Sage)

Dustin Grate, Spencer Investigations, Reno

12:15 p.m. – 12:45 p.m. CASE LAW UPDATE (BCC, Main Room) (0.5 CLE hour)

Kristine Brewer, Brewer Blau, Las Vegas

Amber Robinson, Robinson Law Group, Las Vegas

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12:30 p.m. – 1:30 p.m. LUNCH (all) (BCC, Main Room)

1:30 p.m. – 3 p.m. DOMESTIC VIOLENCE: A NEW VIEW (BCC, Main Room) (1.5 CLE hours)

Honorable Frank P. Sullivan, 8th Judicial District, Las Vegas

Honorable Bill Henderson, 8th Judicial District, Las Vegas

Hearing Master Casey Campbell, 2nd Judicial District, Reno

Joseph Riccio, Dempsey, Roberts & Smith, Las Vegas (Moderator)

1:30 p.m. – 3 p.m. PARALEGAL TRACK: HOW TO READ A TAX RETURN (BCC, Pinion/Sage)

Michelle Salazar, Litigation & Valuation Consultants, Reno

3 p.m. – 3:15 p.m. BREAK (all)

3:15 p.m. – 4:15 p.m. PARALEGAL TRACK: CASE LAW/LEGISLATIVE UPDATE (BCC, Pinion/Sage)


Amber Robinson, Robinson Law Group, Las Vegas

3:15 p.m. – 5:15 p.m. TOP TECHNOLOGY AND MALPRACTICE TRAPS AND HOW TO AVOID THEM (BCC, Main

Room) (2.0 CLE Ethics hours)

Mark Bassingthwaighte, ALPS Property & Casualty Insurance Co., Missoula, Montana

Honorable Mike Montero, 6th Judicial District, Winnemucca (Moderator)

4:15 p.m. – 5:15 p.m. PARALEGAL TRACK: MARITAL BALANCE SHEET/FDF (BCC, Pinion/Sage)

David Schoen, Abrams Law Firm, Las Vegas

5:15 p.m. – 6:45 p.m. BREAK OUTS (Choose One) (1.5 CLE hours)

- SUBSTANCE ABUSE AND FAMILY VIOLENCE (BCC, Main Room)

April Green, Legal Aid of Southern Nevada, Las Vegas

Dr. Joan Rodano, Clark County School District, Las Vegas

Kristine Brewer, Brewer Blau, Las Vegas (Moderator)

Amber Robinson, Robinson Law Group, Las Vegas (Moderator)

- PARENTAGE ISSUES (BCC, Juniper)


- CHILDREN AS WITNESSES: A DIALOGUE (BCC, Pinion/Sage)

Professor Rebecca Nathanson, UNLV

Margaret Pickard, Las Vegas

Josef Karacsonyi, Dickerson Law Group, Las Vegas (Moderator)

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REGISTRATION Online registration is available at www.regonline.com/2015familylawconference. Payment online can be made by credit card or check (if by check print out the invoice and mail it with check payment using the instruction provided.) For assistance, call 702-382-2200 and speak with someone in the CLE department.

Family Law Section Member: Regular $405, Late $460 Standard (Non-Section Member): Regular $425, Late $460 Judge/ New Lawyer (≤ 2 yrs)/ Non-Attorney Professional: Regular $345, Late $460 Paralegal/Assistant: Regular $245, Late $360 Guest (no CLE): Regular $200, Late $250 Pro Bono Services Organization: 1st Person Free, $200 for each additional representative

Hearing Master: No charge Law Clerk: No charge ADDITIONAL CLE OPTIONS: Nuts/Bolts: $99 Advanced Track: $99

Regular rates are valid 11/01/14 – 2/11/15 Late rates are valid 2/12/15 – 3/6/15 Attorneys, Judges, Legal Assistants and others in the legal field may not register as guests. Registration includes breakfast, lunch, snack breaks and banquet. Except for guests, all registrations include CLE.

LODGING There are several choices when selecting where to stay during the conference. Due to the popularity of this program it is recommended to reserve your hotel room as soon as possible. Below are a few options:

Hotel Nevada & Gambling Hall — 888.406.3055 / 775.289.6665 hotelnevada.com

Jailhouse Motel & Casino — 800.841.5430 / 775.289.3033 jailhousecasino.com

Prospector Hotel & Casino — 800.750.0557 / 775.289.8900 prospectorhotel.us

La Quinta Inn & Suites — 800.753.3757 / 775.289.8833 laquintaely.com

Ramada Inn/Copper Queen Casino — 800.851.9526 / 775.289.4884 elyramada.com

RESOURCES Ely online — elynevada.net

Bristlecone Convention Center — 800.496.9350 / 775.289.3720

QUESTIONS Contact the State Bar of Nevada CLE department. [email protected] 702.382.2200

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http://www.regonline.com/2015familylawconference

mailto:[email protected]

SPEAKER BIOGRAPHIES

BIOGRAPHY

Gordon Cruse has been in practice since December of 1983. He is a Certified Legal

Specialist in Family Law. Gordon received his certification from the California State Bar

Board of Legal Specialization back in 1993. Gordon is a Fellow in the American

Academy of Matrimonial Lawyers as well as the International Academy of Matrimonial

Lawyers. Gordon is listed in Best Lawyers in America in both the Family Law litigation and

Family Law mediation. He has been selected as one of the Best Lawyers in San Diego

each year since 2008. Gordon is a member of the Bar Registry of Preeminent Lawyers.

Gordon was selected by Best Lawyers in America as the San Diego County Family Law

Lawyer of the year for 2015.Gordon is chair of the American Academy of Matrimonial

Lawyers E-Discovery/ESI Committee and a co-Chair of the American Academy of

Matrimonial Lawyers Council of Committee Chairs.

Gordon is also the CEO of E-Discovery Readiness & Response, Inc. an e-discovery

consulting firm assisting businesses and law firms with ESI and e-discovery matters

Gordon and his lecture partner, James Hennenhoefer, CLS-F, speak all over the country

on issues on Electronic Discovery and Evidence. Presentations on e-discovery have

been made to the AICPA, Cal CPA Society, The San Diego County Bar Association, The

Bar Association of North San Diego County, The American Academy of Matrimonial

Lawyers, the Louisville Bar Association, the Beverly Hills Bar Association, by invitation of

the Supreme Court of West Virginia to the State’s Judiciary, ASU’s Sandra Day O’Connor

College of Law ESI programs, to various law firms and other organizations. Gordon is a

graduate of the Georgetown Law School’s Electronic Discovery Academy and the

Arkfeld E-Discovery Training Course. Gordon is married to his wife Gala.

You can reach Gordon at 619-696-9922, 619-894-1094 or through his websites:

www.gordoncruse.com or www.ediscoveryrandr.com

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http://www.gordoncruse.com/

http://www.ediscoveryrandr.com/

BIOGRAPHY

James A. Hennehoefer, a Certified Family Law Specialist, is a past National President

of the American Academy of Matrimonial Lawyers (AAML), co-Chair of the AAML E-

Discovery/ESI Committee, Chair Emeritus for the AAML Council of Committee Chairs, a

Diplomat of the American College of Family Trial Lawyers, a Fellow of the International

Academy of Matrimonial Lawyers (IAML), a Certified Matrimonial Law Mediator and

Arbitrator, and a family law judge pro tempore and expert witness in San Diego

County Superior Courts. San Diego Magazine named him one of the Top 25 attorneys

in San Diego, and he’s been named in Super Lawyers® and The Best Lawyers in

America since their inception.

Mr. Hennenhoefer is a recognized expert on ESI, E-Discovery and Evidence issues. He

is a graduate of the Georgetown Law Advanced ESI Academy, the ASU Sandra Day

O’Connor College of Law ESI Program, and the e-Discovery and Digital Evidence

Conference and Symposium through the Law CLE Center. He is available for

consultation regarding any aspect of ESI, from the ESI Hold Letter through

Authentication and Admissibility of Electronic Evidence at trial. In partnership with

Gordon Cruse, his presentations on ESI issues have been received with very favorable

reviews throughout California and the United States. They have lectured to: The

American Institute of Certified Public Accountants, Cal CPA Society, AAML National,

various AAML state Chapters, ASU Sandra Day O’Connor College of Law ESI

programs, by invitation of the Supreme Court of West Virginia to the State’s Judiciary,

San Diego County/North San Diego County, and Beverly Hills Bar Associations, The

Attorneys Briefcase Group and other organizations and law firms. Jim is also a partner

with Gordon Cruse in E-Discovery Readiness & Response, Inc., an e-discovery

consulting firm assisting businesses and law firms with ESI and e-discovery matters.

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Thursday, March 5th9 a.m. - 12 p.m.

Advanced Family Track:E-Discovery in the Family Law World

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E‐DISCOVERYNevada State Bar Family Law

Conference March 2015

E‐Discovery

James A. Hennenhoefer316 S. Melrose Drive, Suite 200

Vista, California 92081 760‐941‐2260

www.JAHfamlaw.com

Gordon D. Cruse402 West Broadway, Suite 1210

San Diego, CA 92101‐8508619‐696‐9922

www.GordonCruse.com

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31. WHAT IS ELECTRONICALLYSTORED INFORMATION (ESI)

PLAN FOR TODAY

Introduction

What is ESI? It’s electronically storedinformation – technology havingelectrical, digital, magnetic,wireless, optical orelectromagnetic capabilities.

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How is ESI Created?

By the user –with software including all of the hidden data and formulas

By machines –at the file level with Metadata and System Level Data

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ESI Comes In Many Forms

Tagged Image File Format (TIFF)

Portable Document Format (PDF)

Image formats such as GIF, JPEG, RAW

MP3, AAC, WAVE files

Email formats

Voicemail format

Text message formats SMS & MMS

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Be Careful…..

ESI is easily modifiable and can be destroyed too.

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How A Hard Drive Works

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How A Hard Drive Works

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How a Hard Drive Works

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2. Locating ESI.

Locating ESI

IT/Network

Hardware & Software

Inventory

System Architecture

Current & Historical Systems

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Locating ESI

System Files DatabasesDocument mgmt. systems

Program FilesInstant

Messages

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Locating ESI

VoicemailDocument files

(Word)Email

Image FilesPassword/encryption

systems

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Locating ESI

Servers

Laptops Cellphones GPS Devices

Workstations

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Locating ESI

Portable Drives

Thumb Drives

Security Systems

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Locating ESI

E‐Discovery includes Metadata

What is Metadata?

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Locating ESI

Computer System Name

When File Created

When Document was

edited# of Revisions

# of Times Printed

See Changes ID of user

Comments by Creator

Comments by Editor

Metadata = Electronic Fingerprints

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Metadata Shows Document

Genuineness

When Created

By Whom

Negotiations/Modifications

Searchable

Allows for customized reports

Asking for Metadata is the standard of care

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20 3. HOW TO OBTAIN ESI

Plan for Today

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How to Obtain ESI

Comprehensive Framework for Production

•Rules for Inspection Demands & SDT

Procedure similar to traditional discovery

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How to Obtain ESI

50 States have adopted an E‐Discovery Act

Most States are based upon the 2006 FederalAct.

California Adopted its E‐Discovery Act in 2009

California about to Adopt a ComprehensiveRule requiring E‐Discovery Competence.

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How To Obtain ESI

1. There’s no free‐for‐all in e‐discovery

2. The court may limit e‐discovery

• Burden & Benefit Test

• Issues Involved

• Resources available

• Importance of the Requested Data to the case

• Proportionality

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Don’t Fail to Request Production Format

The Requesting Party can ask for theproduction format.

If you Fail to do so, the Responding Party canuse any reasonably usable format.

You can’t ask to produce in another form.

You just got stuck with paper and nometadata……call your carrier.

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How to Obtain ESI

1. The procedures for requesting ESI andresponding to demand are like the paperworld

2. There is a safe harbor for ESI lost as a resultof normal operations of computer systemsbut do not rely upon this.

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4. Responding to anE‐Discovery Demand

Our New Responsibilities

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NOW!Someone in your office must be

baseline competent regarding

discovery issues.27


NOW………

Attorney has the burden to see that client complies with e‐discovery demand.

Not enough to rely on client to control the production. We must oversee it.

Litigation hold duties run to counsel first and client second. Green v. McClendon

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Our New ResponsibilitiesESI Preservation & Litigation Holds

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Notify the client of the duty to preserve potentially relevant ESI.

Not enough to tell the business owner client.

Must meet with client’s key employees.

Must make sure ESI is preserved.

Must make sure IT changes are made to protect the ESI.

ESI Preservation & Litigation Holds

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It’s Not Paper Discovery…….

In the paper world we allowed the client tocollect the document.

In the ESI Word we are responsible forcollecting the ESI!

We are responsible for preserving the ESI

We pay if the ESI is lost.

Get involved in the ESI preservation NOW.

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Get a hold memo or letter to your client

Set up reminder dates in your calendar

Get a litigation hold letter to your opposing party/counsel.

Get a litigation hold to relevant 3d parties.

Put reminders in place for OC and 3d Parties.

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Respond to any ESI Holds received.

• Tell the OC what you can and cannot do.

• Offer to meet and confer to discuss the hold

• Be prepared for that meet and confer

• Talk with your client, even the homemaker has:

Computer

Cellphone

iPad

Scads of email

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Our New Duties

A. Stop ESI

Destruction

B. Meet with Key People re stopping ESI Destruction

C. Make sure all ESI is Preserved

D. Make sure the Responsive ESI is produced correctly

Counsel’s New Duties #1

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Our New Duties

E. Meet and Confer on ESI issues 30 days prior to 1st CMC

F. Supervise Client’s Response to a Demand

G. Select and oversee

All ESI vendors hired to get eh ESI

i. Select the vendor

ii. Set verifiable Job Points

iii. Confirm vendor is working

iv. See vendor is preserving ESI

Counsel’s New Duties #2

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Failure is NOT an Option

1. Client and counsel get sanctioned

2. Counsel gets reported to the State Bar

3. Counsel can be required to hire and pay forproper ESI vendor.

4. Client's claims can be barred (we get sued)

5. Court can deny our fee and costs requests.

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Cases We Need to Know

Zubulake Victor Stanley

O’Keefe Analytics Qualcomm

Cornerstone Cases

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5. How Does This Apply toFamily Law? 38

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How Does This Apply to Family Law?

Expert’s Workpapers

Proprietary Formulas

Native Format

No PDF’s

Destroyed Drafts

Spoliation!

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Client’s QuickBooks

1. Requestingnative formatvs. pdf

2. Metadata3. Get passwords

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Client’sComputer

Files

1. Kiddie Porn2. Money, Assets

& Debts3. Email

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MessageFiles

1.1. Text2. SMS & MMS3. Email4. Voicemail5. Tweets6. X1 Social

MediaDiscovery

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How Does This Apply to Family Law

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Electronic Communications Privacy Act

Be careful using ESI provided by client

Ask how they got it.

If unlawful ,

inadmissible

Civil & Criminal Penalties

18 USC § 2520

Statute of limitations is 2 yrs from 1st

opportunity to discover the violation

18 USC § 2515 et sec

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Electronic Communications Privacy Act18 USC § 2515 et sec

Violations of ECPA

5yrs 1st offense Commercial, 10 yrs for the 2nd

All others 1yr 1st offense and 5 yrs for the 2nd

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Stored Communications Act

Prohibits a 3rd party storer from divulging ESI.

Does not prohibit Discovery but can you afford it?

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Yahoo & Google are not going to hand you ESI

Means


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Formal Discovery seems to be the only way to get it

1. E‐Mail not kept on a local server (Yahoo,Gmail)

2. Someone’s internet log‐on informationa. Porn issues – child custody casesb. Financial sites – on and off shorec. Telephone communications via VoIP

(Magic Jack and his pals)d. On‐Star tracking and LoJack tracking

information

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6. Where IsThis Headed?

Where Id This Headed?

Discovery will shift to e‐discovery

Court will burden counsel to gather

& produce

Court will become educated

You have to be Ready

Our Reading List

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Where Is This Headed?Reading List

1. Arkfeld Publications (arkfeld.com & amazon.com)

• Electronic Discovery & Evidence

• Technology Primer for the Legal Profession

• Treatise on ESI Readiness & Holds

• Treatise on Pretrial E‐Discovery

• Treatise on Electronic Discovery & Evidence

2. Matthew Bender: California E‐Discovery & Evidence

3. Lexis Nexus: California’s 2009 E‐Discovery Laws—Text & Analysis

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7. Getting ESI Into Evidence

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Lorraine StandardsLorraine v. Markel 241 F.R.D 534 (D. Md 2007)

Relevant

FRE 401

Authentic FRE

901‐902

Hearsay

FRE 801, 803

Original or duplicate FRE 1001‐1008

Unfair Prejudice? FRE 403

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Relevance

Must be related to matter at issue and must have probative value.

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AuthenticityMust prove it is what it purports to be.Extrinsic evidence Testimony of percipient witness Admission of adverse party Testimony of Expert Witness Communication Responses Author’s specific knowledge

Court// 1 of 1 �55


AuthenticityMust prove it is what it purports to be.Self Authentication Official Writings Certified Writings Recorded Writings Computer information Video or digital images Business records

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AuthenticityMust prove it is what it purports to be.Other Methods Judicial Notice Requests for Admissions BE CREATIVE

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HearsayIs the ESI Hearsay?

Assertive Statement Made Out of Court By a Human Declarant Offered to Prove Truth Offered to Prove Truth of Assertion

Court// 1 of 1 �58

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HearsayIf it is hearsay is it within an exception?

Party Admission, Authorized Statement, Declaration Against Interest, Inconsistent Statement, Consistent Statement, Spontaneous Statement, Contemporaneous Statement, Dying Declaration, Existing Physical or Mental State, Prior Physical or Mental State, Business Records, Official Records

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Original WritingSecondary Evidence Rule

Copy admissible unless genuine dispute as to material terms and justice requires exclusion; or admission unfair.

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Unfair Prejudice

Does undue consumption of time or undue prejudice outweigh probative value?

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Judge Grimm in Lorraine addresses:

1. Email2. Internet Postings3. Text Messages & Chat room content4. Computer stored records and data5. Computer animation & simulations6. Digital photographs

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Judge Grimm focuses on strict construction of hearsay definition

1. Statement intended as an assertion2. Made by a declarant3. Excluded are: Fax headers & reports Docs asking questions or giving directions Website postings offered to show what site

looked like Computer generated records like phone

records63


Judge Grimm reviews:1. Present sense impression2. Excited utterance3. Existing state of mind4. Business Records5. Public Records6. Market Reports7. Commercial publications

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Handouts

1. Sample lit hold letters to:

1. Client

2. Opposing counsel

3. 3rd Party

2. Single Sheet Evidence Conversion Chart

3. Lorraine Case

4. ESI Document Demand

5. ESI SDT Attachment

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E‐Discovery

James A. Hennenhoefer316 S. Melrose Drive, Suite 200

Vista, California 92081 760‐941‐2260

www.JAHfamlaw.com

Gordon D. Cruse402 West Broadway, Suite 1210

San Diego, CA 92101‐8508619‐846‐1938

www.ediscoveryrandr.com

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Supportive Documents

Relevance — EC 210, 350-351

Must be related to matter at issue and must have probative value.

Authenticity — EC 1400-1402

Must prove it is what it purports to be.

How will ESI be authenticated?

Extrinsic evidence

Testimony of Percipient Witness EC 1413

Adverse Party Admission or Reliance Upon EC 1414

Testimony of Expert Witness EC 1418

Communication Responses EC 1420

Author's Specific Knowledge EC 1421

Self-authentication

Official Writings EC 1530

Certified Writings EC 1531

Recorded Writings EC 1532

Computer Information EC 1552

Video or Digital Images EC 1553

Business Records EC 1560-1567

Other methods

Judicial Notice EC 450-460

Requests for Admission CCP 2033.10-2033.080

BE CREATIVE

Hearsay — EC 225, 1200(a)

Is the ESI Hearsay?

Assertive Statement EC 225

Made Out of Court EC 1200(a)

By a Human Declarant EC 225

Offered to Prove Truth EC 1200(a)

Original Writing — EC 1521 (Secondary Evidence Rule)

Copy admissible unless genuine dispute as to material terms and

justice requires exclusion; or, admission unfair.

Unfair Prejudice — EC 352

Does undue consumption of time or undue prejudice outweigh probative value?

If yes, within a Hearsay Exception?

Party Admission EC 1220, Authorized Statement EC1222, Declaration Against Interest EC 1230, Incon-sistent Statement EC 1235, Consistent Statement EC 1236, Spontaneous Statement EC 1240, Contempora-neous Statement EC 1241, Dying Declaration EC 1242, Existing Physical or Mental State EC 1250, Prior Physical or Mental State EC 1251, Business Records EC 1270-1272, Official Records EC 1280.

Checklist for Admissibility of ESI in California

Copyright 2011 Robert C. Wood, San Diego, CA

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Gordon D. Cruse (State Bar No. 110387)Certified Family Law SpecialistLAW OFFICES OF GORDON D. CRUSE, APLC110 West C Street, Suite 2300San Diego, CA 92101-3910Telephone: (619) 696-9922

Attorney for

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO

In Re the Marriage of: ) Case No. D)

Petitioner: ) PETITIONER’S FIRST SET OF) DEMANDS TO RESPONDENT FOR ) PRODUCTION OF DOCUMENTS,

and ) INCLUDING ELECTRONICALLY ) STORED INFORMATION)

Respondent: ))

DEMANDING PARTY: PETITIONER,

RESPONDING PARTY: RESPONDENT,

SET NO.: ONE

To Respondent, , and his/her attorney

of record:

Pursuant to California Code of Civil Procedure Section

2031.010 et seq., Petitioner, , hereby demands

that Respondent produce for inspection and copying all of the

documents and electronically stored information within defendant’s

possession, custody, or control as called for below, within the

time required by statute. In addition, Petitioner demands that the

materials produced be organized and labeled to correspondence with

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the categories in this set of demands.

The materials to be produced shall be produced at the offices of

, Petitioner’s counsel, within 30 days after

service of this set of demands. A personal appearance is not

required if Respondent produces copies of all of the original

materials, together with a verification under penalty of perjury

that the copies are true and correct copies if the originals,

within 30 days after service of this set of demands.

DEFINITIONS

1. “PETITIONER” means Petitioner and

includes his attorney of record and any agents, employees, and

investigators retained by his attorney of record.

2. “PERSON” and/or “INDIVIDUAL” means, unless otherwise

specified, any natural person, firm, entity, corporation,

partnership, proprietorship, association, joint venture, other form

of organization or arrangement, and government and government

agency of every nature or type.

3. “YOU,” “YOUR,” “PRODUCING PARTY,” and/or “RESPONDENT”

means Respondent and any other

PERSON representing it or acting on its behalf.

4. “ELECTRONIC STORAGE DEVICE” means any device capable of

storing ESI for any period of time, including without limitation

disks, including hard disks and floppy, CD-ROMs, DVDs, network

servers, shared servers, computers, magnetic tape, back-up tape,

voice mail, temporary files, telephones, and PDAs, whether

currently on Respondent’s premises or otherwise (e.g., at an

employee’s home or remote office).

///

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5. “ESI” means “electronically stored information” as defined

in California Code of Civil Procedure Section 2016.020(e), and

shall include, without limitation, any information, including

files, documents, images, video, metadata or any combination

thereof stored, created, or used on any ELECTRONIC STORAGE DEVICE,

disk tape (including backup tapes and other backup media), or other

computer or digital storage medium, microfilm, microfiche, floppy,

or any other storage or recording medium. ESI includes without

limitation electronic mail messages, voice mail messages, instant

messaging or IM, text messages, information stored on web pages or

web servers, and database records.

6. “RELATE,” or any variant thereof, including, but not

limited to, the term “relating to,” shall be understood to apply if

the data or information evidences, mentions, constitutes, contains,

summarizes, describes, concerns, refers to (directly or

indirectly), supports, contradicts, addresses in any way or

otherwise deals with the subject matter described in this set of

demands in which the term “relate,” or any variant thereof,

appears.

7. “EVIDENCE” or any variant thereof, including, but not

limited to, the term “evidencing,” shall be understood to apply if

the data or information directly or indirectly mentions, discusses,

constitutes, concerns, supports, contradicts, refers to, or in any

other way deals with the subject matter described in this set of

demands in which the term appears.

8. “DOCUMENT” means a writing as defined by Evidence Code

Section 250, and shall include, without limitation, the original

(and absent the original then a copy thereof), all file copies and

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copies not identical to the original of any writing or record of

every type, form, and description that is in the possession,

custody, or control of the responding party, or which no longer is

in the responding party’s possession but of which the responding

party still has knowledge, whether or not said writings or records

are claimed to be privileged or otherwise immune from discovery

including by way of illustration and not limitation, the following

items: notes, correspondence, communications of any nature

(including intra-company communications and correspondence),

electronic mail messages, telegrams, cables, memoranda (including

internal memoranda), notebooks of any nature, including laboratory

and engineering reports; summaries, minutes and records of

telephone conversations, personal conversations or interviews;

diaries, routing slips or memoranda, reports (including tests and

analysis reports), books, manuals, publications, invoices,

specifications, shipping papers, purchase orders, shop instrument

output, plans, patterns, drawings, flow charts, schematics,

diagrams, photographs of any nature, artists’ drawings, sketches,

blueprints, minutes of recordings of meetings and conferences,

including lists of persons attending meetings or conferences;

transcripts of oral testimony or statements; reports and/or

summaries of interviews; reports and/or summaries of

investigations; opinions or reports of consultants; opinions of

counsel; forecasts; reports of patent searches; patent opinions,

analyses or appraisals; agreements and constracts (including all

modifications or revisions thereof); reports and/or summaries of

negotiations; court papers, labels, tags, placards, fliers, counter

cards, brochures, pamphlets, advertisements, advertising layouts,

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circulars, trade letters, press releases, and translations;

presentations, including boards, transparencies, storybooks and/or

scripts; drafts of original or preliminary notes on, and marginal

comments appearing on, any DOCUMENTS; whether those writings or

records are on paper, magnetic disk, tape or other computer or

digital storage medium, microfilm, microfiche, floppy, or any other

storage or recording medium.

9. “ANY” shall be understood to include and encompass “all.”

As used herein, the singular shall always include the plural and

the present tense also shall include the past tense. The words

“and” as well as “or” shall be construed disjunctively or

conjunctively as necessary to bring within the scope of this demand

all documents or things that might otherwise be construed to be

outside its scope.

10. To the extent that the documents demanded herein are not

produced as they are kept in the usual course of business, then as

to each document produced, indicate the number or numbers of the

demands below to which the document is responsive.

11. If any document demanded herein is withheld pursuant to

any objection based upon privilege, identify each document for

which the privilege is claimed and state:

a. The type of documents (letter, report, memoranda, etc.),

including any title or identifying number thereon;

b. Its date of origin or preparation;

c. The name of its author or originator;

d. The name of its addresses, if any;

e. A brief summary of its substance; and

f. A factual and legal basis upon which a privilege is

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claimed sufficient to permit the Court to adjudicate the

validity of the claim.

If any document demanded to be produced herein was in your

possession, custody, or control, but has since been disposed of,

lost, discarded, destroyed, or otherwise has become unavailable

within four years of the date of this set of demands, please

identify which documents were destroyed and state further the

identity of the person who ordered them destroyed and the reason

for their destruction.

DEMAND FOR FORMAT PRODUCTION

12. Load Files. Except for ESI described in Paragraphs 13(b)

and (c) below, ESI must be produced in electronic format, with

files suitable for loading into a Concordance [or specify other

type of database] litigation support database. The load files will

define document breaks, attachments and other information

identified below.

(a) Document Cross-Reference File. YOU should provide a

cross-reference file that identifies the start and end of

the documents, its attachments and its corresponding

metadata.

(b) Cross-Reference or Linking File. YOU should also provide

a cross-reference file that facilitates the linking of

the produced image or native file with the litigation

database. This cross-reference file will contain fields

such as the unique document ID (i.e., Begbates) and the

file path of the corresponding image or native file. You

may provide this information either in a Concordance

litigation database format or as a standard delimited

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ASCII text file.

13. Categories of Production of ESI. ESI will be produced as

follows, depending on its classification.

(a) Production of ESI As TIFF Images With Metadata and

Extracted Text. Documents created in standard office

automation file formats (including but not limited to

Microsoft Word or WordPerfect documents) and ESI that can

practicably be converted into TIFF format will be

produced as single-page TIFF Group IV images, with any

available fielded metadata and text searchable

information extracted from the native documents.

(i) Bates Numbering. The producing party will brand

all TIFF images in the lower right-hand corner with

its corresponding Bates number, using a consistent

font type and size. The Bates number must not

obscure any part of the underlying image.

(ii) File Names. Image file names will be identical to

the corresponding bates numbered images, with a

“.tif” file extension.

(iii) Confidentiality Endorsements. The producing

party will brand any confidentiality or

similar endorsements in a corner of the TIFF

image. Those endorsements must be in a

consistent font type and size, and must not

obscure any part of the underlying image or

Bates number.

(iv) Production of Extracted Full Text. The producing

party will provide extracted full text (i.e., text

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extracted from ESI) for all material originating as

ESI in a text file corresponding to a single page

of a document. The full text file name will be

composed of the Bates number of the associated

document, with a “.txt” file extension. When a

party is unable to produce extracted full text, it

will provide an explanation of that inability with

its document production.

(v) Production of Metadata. The producing party will

provide the following metadata, as applicable, for

all ESI: start Bates, end Bates, start attachment,

end attachment, custodian or source, original file

path, original file name, file type/file extension,

MD-5 hash value, title, creation date, creation

time, page count, last modification date, last

modification time, and last saved by name.

(vi) Metadata for E-Mail. In addition to the metadata

to be produced for all ESI, for all e-mail, the

producing party will also produce the following as

fielded metadata: subject, author, recipients,

from, to, copyees, blind copyees, date sent, time

sent, date received, time received, MD-5 hash

value, attachment file name, begin attachment, and

end attachment. Family relationships among e-mail

and attachments will be maintained by ensuring that

attachments immediately follow their parent e-mail,

and setting the “begin attachment” and “end

attachment” metadata fields appropriately.

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(vii) Explanation of inability to Produce Metadata.

When a party is unable to produce metadata for

a particular field, it will provide an

explanation of that inability with its

document production.

(viii) Redaction. If a file that originates in ESI

needs to be redacted before production, the

file will be rendered in TIFF, and the TIFF

will be redacted and produced. However, to

the extent that the text is searchable in the

native format, the producing party will still

provide searchable text for those portions of

the document that have not been redacted.

(b) Production of Native Format Documents That Are

Impractical to Convert to TIFF. ESI that is not

practical to convert to TIFF may be produced using one of

the two following methods, which method will be subject

to meet and confer between the parties.

(i) Spreadsheets That Are Impractical to Convert to

TIFF. ESI that is not practical to convert to TIFF

(for example, spreadsheets) may be produced in

electronic formate suitable for loading to a

litigation support database with links to the

native files.

(A) Identification. ESI produced in native file

format will be assigned a unique DocID number

within the litigation database.

(B) File Names. File names will be identical to

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the DocID number, followed by the original

file name and file extension.

(C) Authentication. The producing party will

provide a litigation database load file with

separately fielded data, which will contain,

as one of the fields, the MD-5 hash value of

each file produced in native format.

(ii) ESI That Is Impractical to Produce with Links to a

Database. For any ESI where linking a native

document will render the document unusable, the ESI

should be produced in native form, accompanied with

a Bates number and MD-5 hash value, but separate

from a litigation support database.

(iii)Encrypted or Password-Protected ESI. For any ESI

that exists in encrypted format or is password-

protected, the producing party will provide the

propounding party a means to gain access to those

native files (for example, by supplying

passwords).

(c) Reports in Lieu of Native Production. If a party

believes that it would be impractical to produce ESI in

native format because of complexities associated with

certain scheduling programs (such as Primavera),

accounting systems, mapping systems, and/or other

databases (such as MS Access, Oracle, and Microsoft SQL

Server), it will so notify the propounding party and will

inform the propounding party whether it has generated

reports in the normal course of business using those

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programs or systems. In any such instance, the parties

will meet and confer concerning the manner of production

of those reports.

(d) Production of Picture/Images. Any photographic images

created and/or maintained in electronic format will be

produced in that format.

14. Production Media. The producing party will use the

appropriate electronic media (CD, DVD, or hard drive) for its ESI

production, and will cooperate in good faith to use the highest

capacity available media to minimize associated overhead. The

producing party will label the physical media with the producing

party, production date, media volume name, and document number

range.

15. Avoidance of Duplicate Production. Each producing party

will take all reasonable steps to reduce duplication of ESI. De-

duplication will be performed within a custodian. The producing

party will maintain references to all removed duplicate files.

16. ESI Requiring Proprietary Software. If proprietary

software unavailable to Petitioner is needed to review the

producing party’s ESI in native format, YOU shall provide

reasonable access to the proprietary software for purposes of

review of ESI by Petitioner and any expert or other PERSON working

on behalf of Petitioner.

17. Translation of Data Compilations. If you contend that

any ESI sought by these requests is subject to California Code of

Civil Procedure Section 2031.280(e) providing for translation of

data compilations through detecting devices at the reasonable

expense fo the demanding party, you should identify such ESI before

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any translation occurs, including without limitation explaining

with specificity why you assert that section 2031.280(e) applies

and what the reasonable expense of translation will be.

DEMAND FOR PRODUCTION NO. 1:

Documents and ESI related to Petitioner’s entire personnel file,

covering the entire time that Petitioner was employed by

Respondent, including any of the following:

• Petitioner’s employment application.

• Petitioner’s discipline record.

• Petitioner’s performance evaluations.

• Petitioner’s salary and benefit history.


Documents and ESI relating to communications between Petitioner and

, his/her supervisor during

petitioner’s employment with Respondent, relating to

.


Documents and ESI relating to communications between Petitioner and

relating to _____________________.

Dated: Gordon D. Cruse, CFLS

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ATTACHMENT 3

DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO

DEFINITIONS

1. The terms “DOCUMENT,” “DOCUMENTS,” “WRITING,” OR

“WRITINGS” mean a writing or writings as defined by Evidence Code

Section 250, and shall include, without limitation, the original

(and absent the original, then a copy thereof), all file copies and

copies not identical to the original of any writing or record of

every type, form, and description that is in the possession,

custody, or control of the responding party, or which no longer is

in the responding party’s possession but of which the responding

party still has knowledge, whether or not those writings or records

are claimed to be privileged or otherwise immune from discovery,

including, by way of illustration and not limitation, the following

items: notes, correspondence, communications of any nature

(including intra-company communications and correspondence),

electronic mail messages, telegrams, cables, memoranda (including

internal memoranda), notebooks of any nature, including laboratory

and engineering reports; summaries, minutes and records of

telephone conversations, personal conversations or interviews;

diaries, routing slips or memoranda, reports (including tests and

analysis reports), books, manuals, publications, invoices,

specifications, shipping papers, purchase orders, shop instrument

output, plans, patterns, drawings, flow charts, schematics,

diagrams, photographs of any nature, artists’ drawings, sketches,

blueprints, minutes or recordings of meetings and conferences,

including lists of persons attending meetings or conferences;

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transcripts of oral testimony or statements; reports and/or

summaries of interviews; reports and/or summaries of

investigations; opinions or reports of consultants; opinions of

counsel; forecasts; reports of patent searches; patent opinions,

analyses or appraisals; agreements and contracts (including all

modifications or revisions thereof); reports and/or summaries of

negotiations; court papers, labels, tags, placards, fliers, counter

cards, brochures, pamphlets, advertisements, advertising layouts,

circulars, trade letters, press releases, and translations;

presentations, including boards, transparencies, storybooks and /or

scripts; drafts of original or preliminary notes on, and marginal

comments appearing on, any DOCUMENTS; whether those writings or

records are on papers, magnetic disk, tape or other computer or

digital storage medium, microfilm, microfiche, floppy, or any other

storage or recording medium.

2. “PETITIONER” means Petitioner John Smith and includes his

attorney of record and any agents, employees, and or investigators

retained by his attorney of record.

3. “RESPONDENT” means Respondent Mary Jones Enterprises,

Inc., and any of its predecessors and successors in interest,

parents, subsidiaries, affiliates, segments, divisions, and

operating units, and any of its present or former offers, partners,

directors, administrators, agents, employees, consultants,

investigators, accountants, attorneys, and all other persons acting

or purporting to act on its behalf.

4. The terms “YOU” and “YOUR” shall mean Frank Cole, CPA,

including any of your affiliates, and any all of your employees,

partners, principals, members, directors, officers, employees,

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agents, representatives, accountants, financial advisors,

investigators, consultants, attorneys and any other person or

entity acting on YOUR behalf.

5. “REFER” or “RELATE,” or any variant thereof, including,

but not limited to, the terms, “REFERRING TO” and “RELATING TO,”

means in whole or in part evidencing, mentioning, constituting,

containing, summarizing, describing, concerning, supporting,

contradicting, addressing in any way, or otherwise dealing with the

subject matter of the item listed below in which the term “REFER”

or “RELATE” appears.

6. The term “COMMUNICATION(S)” shall be construed in the

broadest possible sense and shall include, but not limited to, any

transmittal AND/OR receipt of information, whether by chance,

prearranged, formal, or informal, and specifically includes

conversations in person, telephone conversations, letters or

memoranda, electric mail, formal statements, press releases, AND

newspaper articles.

7. The term “CORRESPONDENCE” means any exchange of

COMMUNICATIONS, including without limitation memoranda, letters,

electronic mail, messages sent or received from a wireless device,

or other DOCUMENTS among individuals AND entities.

8. The terms “AND” and “OR” shall be construed disjunctively

or conjunctively so as to bring withing the scope of each item

listed below all documents and things that might otherwise be

construed to be outside its scope.

9. The singular shall include the plural, and vice versa, so

as to make these requests broadly inclusive.

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10. Each item listed below shall be construed independently

and shall not be limited to reference to any other item.

11. If any document demanded herein is withheld pursuant to

any objection based upon privilege, identify each document for

which the privilege is claimed and state:

a. The type of document (letter, report, memoranda,

etc.), including any title or identifying number thereon;

b. Its date of origin or preparation;

c. The name of its author or originator;

d. The name of its addressees, if any;

e. A brief summary of its substance; and

f. A factual and legal basis upon which a privilege is

claimed sufficient to permit the Court to adjudicate the validity

of the claim.

12. If any document demanded to be produced herein was in

your possession, custody, or control, but has since been disposed

of, lost, discarded, destroyed, or otherwise has become unavailable

within four years of the date of this set of demands, please

identify which documents were destroyed and state ruther the

identity of the person who ordered them destroyed and the reason

for their destruction.

13. Unless otherwise specified, each demanded item shall be

produced in the form in which it is ordinarily maintained,

preserving search-ability, fielded metadata, and any files sent as

e-mail attachments.

ITEMS TO BE PRODUCED

You are hereby required to produce all of the following

documents that are now or were formerly in your possession,

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custody, or control (including documents at any time in the

possession, custody, or control of your agents, attorneys,

accountants, and all other persons and entities representing you or

acting on your behalf):

1. Documents, including account statements, referring or

relating to securities, investments, or money market accounts

maintained for defendant, for the period January 1, 2008, through

December 31, 2009.

2. Communications between you and defendant referring or

relating to securities, investments, or money market accounts

maintained for Respondent, for the period of January 1, 2008,

through December 31, 2009.

3. Documents referring or relating to any transfer of funds

from Respondent’s account no. at

to Petitioner’s account No. at

made during the months of , , or ,

20 .

4. Communications between you and Respondent, made at any

time referring or relating to any of the transfers described in

Item 3.

5. Communications between you and Petitioner, made at any

time, referring or relating to any of the transfer described in

Item 3.

6. Federal and State corporate income tax returns for

Respondent for any tax year ending in 2008 or 2009.

7. Documents referring or relating to any profit sharing

plans, pension plans, Keogh plans, individual retirement accounts,

stock ownership plans, 401(k) plans, and any other deferred

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compensation or retirement plans of any nature in which Petitioner

has or had any interest during the period from January 1, 2008

through the present.

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, 2014

Mr/s. First Name Last NameAddressAddress

Re: Marriage of Last Name

Dear Mr/s. Last Name:

Recent changes in the law require that you now protect from change and destruction all electronicallystored information (ESI) during your case. This means that until your case is over and you are toldotherwise by me, you must not delete any email, text messages or voice-mails. If you are using Quickbooks, Microsoft Money or other accounting software at home, you cannot delete those files. Franklyif in doubt, keep it.

If you suffer a hardware failure such as a hard drive that stops working, it is imperative that you letmy office know so we can notify the opposing counsel. You will need to keep that broken hard driveuntil I tell you that you can dispose of it. This is also true for your cell phone. If you decide to replaceyour phone, you cannot turn in your old one, you must keep it safe until your case is over and I tellyou it is now okay to get rid of your old phone.

This rule of keeping old, broken or inoperable hardware also applies to:

iPods or any music player,iPads or any computer tablet,thumb drives and portable hard drives,GPS devices, handheld or built into your car,Security systems that record video or audio,Digital audio recorders,Media used to hold your digital photos, even the ones on your cell phone. This includes CD’s,DVD’s, flash drives, SD drives, Compact Flash Drives or any type of device used to hold the digitalphoto, video or audio.

If you have any question, before you delete anything, before you through anything away, call theoffice and speak to me. The penalties the court can impose on you for what the court deems to

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, 2014page two

be the destruction of evidence or potential evidence can be very severe. This includes the courtprohibiting you from presenting certain evidence yourself, deciding issues without any input fromyou or making you pay for the recreation of the lost or damages ESI.

You are likely wondering why any of this is necessary. The answer is simply that now the lawrequires it and it is my duty to make sure you are informed of your responsibilities to protect andpreserve all electronically stored information while your case is pending.

Do not take this responsibility lightly as the court takes it very seriously. If you have any questionsat all, please call me and I will be happy to answer them for you.

Very truly yours,

GORDON D. CRUSE, APLC

Gordon D. Cruse, CFLS

GDC:hdcc:

I _________________________________ acknowledge receipt of this letter and the instructionshave been explained to me.

Date:______________ ________________________________Client Name

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December 8, 2013

LawFirm Counsel, CFLSFirm Name APCFirm Address, Suite San Diego, CA 921

Re: Marriage of Client Last Name

Dear Mr/s. Counsel Last Name:

As you are aware, Ms. Client-Last-Name has filed her legal separation action against Mr. OP. Youare aware of the underlined disputes, and the issues involved including the concern and dispute aboutthe amount of child and spousal support, the duration of spousal support, the division of assets, thevalue of assets including but not limited to HHHHHH’s partnership interest at LawFirm, LLP, andthe respective separate property claims in various assets including the home.

DEMAND FOR PRESERVATION OF EVIDENCE

Please be advised that my client and I believe that electronically stored information (ESI) is andimportant and irreplaceable source of discovery and/or evidence in connection with the disputedescribed above. As litigation is necessary to protect Ms. Client-Last-Name’s rights, the discoveryrequests to be served in this matter will seek information from computer systems, removableelectronic media and other locations for LawFirm, LLP. As well as from any agents and individualemployees of LawFirm, LLP, who were involved in or dealt with matters relevant to HHHHHH’scompensation, partnership contracting, partnership benefits, employee benefits, partnership dutiesto the firm, and HHHHHH’s scheduling and availability. This includes, but is not limited to, e-mail,instant messaging, text messages, voice mail messages, and other electronic communications, wordprocessing documents, spreadsheets, databases, calendars, and telephone logs.

Therefore, you are hereby given notice to immediately take all steps necessary to prevent thedestruction, loss, concealment, or alteration of any paper, document, or electronically storedinformation and other data or information generated by and/or stored on your client’s and hisLawFirm’s computers and storage media (e.g., hard disks, floppy disks, backup tapes, etc.), and e-mail related to any of the issues including HHHHHH’s compensation, benefits, partnershipobligations, scheduling, or his ownership interest in the partnership.

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Mr/s. LawFirm Counsel, CFLSDecember 8, 2013Page - 2 -

ESI should be afforded the broadest possible definition and includes, but is not limited to, all digitalcommunications (e.g., e-mail, voice mail, instant messaging), word processed documents (e.g., Wordand WordPerfect documents and drafts), spreadsheets and tables (e.g. Excel and Lotus 123worksheets), accounting application data (such as QuickBooks, Money, or Peachtree files), imageand facsimile files (including PDF, TIFF, JPG, and GIF images), sound recordings (including WAVand MP3 files), video recordings, all databases, all contact and relationship management data,calendar and diary application data, online access data (including temporary, Internet files, History,and Cookies), all presentations (including PowerPoint and Corel), all network access and serveractivity logs, all data created with the use of any Personal Data Assistant (PDA) such as a Palm Pilot,Blackberry, or other Windows-based or Pocket PC devices, any Droid, Apple, Microsoft or othersmart phone operating system, all CAD files, and all back-up and archival files.

Adequate preservation of ESI requires more than simply refraining from efforts to destroy or disposeof such evidence. You must also intervene loss due to routine operations and employ propertechniques to safeguard all such evidence.

Because hard copies do not preserve electronic searchability or metadata, they are not anadequate substitute for ESI. If information exists in both electronic and paper form, youshould preserve them both.

Litigation Hold

You are requested to immediately initiate a litigation hold for potential relevant ESI, documents, andtangible things, and to act diligently and in good faith to secure and audit compliance with thatlitigation hold. You are also requested to preserve and not destroy all passwords, decryptionprocedures (including, if necessary, the software to decrypt the files), network access codes, IDnames, manuals, tutorials, written instructions, decompression or reconstruction software, and anyand all other information and things necessary to access, view, and (if necessary) reconstruct anyESI. You should not pack, compress, purge, or dispose of any file or any part thereof.

You are further requested to immediately identify and modify or suspend features of LawFirm’soperations, information systems, and devices that, in routine operations, operate to cause the loss ofdocuments, tangible items, or ESI. Examples of such features and operations include, but are notlimited to, purging the contents of e-mail repositories by age, capacity, or other criteria; using dataor media wiping, disposal, erasure, or encryption utilities or devices; overwriting, erasing,destroying, or discarding backup media; reassigning, re-imaging or disposing of systems, servers,devices, or media; running antivirus or other programs that alter metadata; using metadata stripperutilities; and destroying documents or any ESI by age or other criteria.

Servers

With respect to servers like those used to manage electronic mail and network storage, the entirecontents of each user’s network share and e-mail account should be preserved and not modified.

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Storage

With respect to on-line storage and/or direct access storage devices attached to LawFirm’smainframe computers and /or minicomputers, in addition to the above, you are not to modify ordelete any ESI, “deleted” files, and/or the file fragments existing on the date of this letter’s deliverythat contain potentially relevant information.

With regard to all electronic media used for offline storage, including magnetic tapes and cartridges,optical media, electronic media, and other media or combinations of media containing potentiallyrelevant information, you are requested to stop any activity which may result in the loss of any ESI,including rotation, destruction, overwriting and erasure in whole or in part. This request is intendedto cover all media used for data or information storage in connection with your computer systems,including magnetic tapes and cartridges, magneto-optical disks, floppy diskettes, and all other media,whether used with personal computers, mini computers, mainframes, or other computers, andwhether containing backup and/or archival ESI.

Personal Computers

You should take immediate steps to preserve all ESI on all personal computers used by HHHHHH,his support staff, LawFirm’s management team, their support personnel, their accountingdepartment, their officers and directors and employees that in anyway relate to the subject matter ofthis action. As to fixed devices, (1) a true and correct copy is to be made of all such ESI, includingall active files and completely restored versions of all deleted electronic files and file fragments; (2)full directory listings (including hidden files) for all directories and subdirectories (including hiddendirectories) on such fixed devices should be written; and (3) all such copies and listings are to bepreserved until this litigation is ended. Floppy diskettes, CDs, DVDs, tapes, and other non-fixedmedia relating to this matter are to be collected and stored pending resolution of this litigation.

Portable Systems

In addition to your immediate preservation of ESI, documents and tangible items in LawFirm’sbusiness, on servers and workstations, you should also determine if any home or portable systemsmay contain potentially relevant data or information. To the extent that officers, board members,or employees have sent or received potentially relevant e-mails or created or reviewed potentiallyrelevant documents away from the office, you must preserve the contents of systems, devices, andmedia used for these purposes (including not only potentially relevant data from portable and homecomputers, but also from portable thumb drives, CD-R disks, PDAs, smart phones, voice mail boxes,or other forms of ESI storage). Additionally, if any employees, officers, partners or directors usedonline or browser-based e-mail accounts or services to send or receive potentially relevant messagesand attachments, the contents of these account mailboxes should be preserved.

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Evidence Created or Acquired in the Future

With regard to documents, tangible things, and ESI that are created or come into your custody,possession or control subsequent to the date of delivery of this letter, potentially relevant evidenceis to be preserved. You should take all appropriate action to avoid destruction of potentially relevant evidence.

Please forward a copy of this letter to all persons and entities possessing or controlling potentiallyrelevant evidence. Your obligation to preserve potentially relevant evidence is required by law.

Please contact me if you have any questions regarding this letter. I would be happy to meet andconfer with you or your designee over the issues set forth herein.

Very truly yours,



cc: Ms. WWWWWW Client-Last-Name

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January 12, 2014

, President, Inc.

9920 Avenue, Suite 109, CA 92

Re: Marriage of

Dear Mr. :

Please be advised that my client, , is involved in a dissolution of marriage action withthe managing partner, , of your client, , LLP, in casenumber D . The issues in dispute between the parties include levels of spousal support,duration of spousal support, the division of assets, the value of assets including but not limited Mr.

’ partnership interest at the law firm, , LLP, (the law firm) and Mr. accessing my client’s e-mail and e-mail accounts, reviewing my client’s hard drive on her

personal computer, installing or causing to be installed key-logger or other tracking software on myclient’s personal computer and reading e-mail between my client and her lead counsel, ,CFLS.

DEMAND FOR PRESERVATION OF EVIDENCE

Please be advised that my client and I believe that electronically stored information (ESI) is animportant and irreplaceable source of discovery and/or evidence in connection with the disputedescribed above. As litigation is necessary to protect Ms. ’ rights, the discovery requests tobe served in this matter will seek information from computer systems, removable electronic mediaand other locations for , LLP, from Mr. and from Systems,Incorporated (the company). As you can see, Ms. is seeking information from agents andindividual employees of , LLP, who were involved in or dealt withmatters relevant to Mr. ’ compensation, partnership contracting, partnership benefits,employee benefits, partnership duties to the law firm, and Mr. ’ access to Ms. ’ personalcomputer and any information technology (IT) services at the law firm or with outside serviceproviders such as Systems, Inc.. This includes, but is not limited to, e-mail, instantmessaging, text messages, voice mail messages, and other electronic communications, wordprocessing documents, spreadsheets, databases, calendars, and telephone logs.

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, PresidentJanuary 12, 2014Page - 2 -

Therefore, you are hereby given notice to immediately take all steps necessary to prevent thedestruction, loss, concealment, or alteration of any paper, document, or electronically storedinformation and other data or information generated by and/or stored on your company’s computersand storage media (e.g., hard disks, floppy disks, backup tapes, etc.), and e-mail related to any of theissues including Mr. ’ compensation, benefits, partnership obligations, scheduling, hisownership interest in the partnership, his interaction with any IT services at the law firm or providedby your company to the law firm or Mr. and Mr. ’ accessing my client’s e-mail, her e-mailaccounts, accessing my client’s hard drive as well as installing or causing to be installed any key-logger or tracking software on my client’s personal computer.

ESI should be afforded the broadest possible definition and includes, but is not limited to, all digitalcommunications (e.g., e-mail, voice mail, instant messaging), word processed documents (e.g., Wordand WordPerfect documents and drafts), spreadsheets and tables (e.g. Excel and Lotus 123worksheets), accounting application data (such as QuickBooks, Money, or Peachtree files), imageand facsimile files (including PDF, TIFF, JPG, and GIF images), sound recordings (including WAVand MP3 files), video recordings, all databases, all contact and relationship management data,calendar and diary application data, online access data (including temporary, Internet files, History,and Cookies), all presentations (including PowerPoint and Corel), all network access and serveractivity logs, all data created with the use of any Personal Data Assistant (PDA) such as a Palm Pilot,Blackberry, or other Windows-based or Pocket PC devices, any Droid, Apple, Microsoft or othersmart phone operating system, all CAD files, and all back-up and archival files.

Adequate preservation of ESI requires more than simply refraining from efforts to destroy or disposeof such evidence. You must also intervene loss due to routine operations and employ propertechniques to safeguard all such evidence.

Because hard copies do not preserve electronic searchability or metadata, they are not anadequate substitute for ESI. If information exists in both electronic and paper form, youshould preserve them both.

Litigation Hold

You are requested to immediately initiate a litigation hold for potential relevant ESI, documents, andtangible things, and to act diligently and in good faith to secure and audit compliance with thatlitigation hold. You are also requested to preserve and not destroy all passwords, decryptionprocedures (including, if necessary, the software to decrypt the files), network access codes, IDnames, manuals, tutorials, written instructions, decompression or reconstruction software, and anyand all other information and things necessary to access, view, and (if necessary) reconstruct anyESI. You should not pack, compress, purge, or dispose of any file or any part thereof nor allow suchto happen by any third party.

You are further requested to immediately identify and modify or suspend features of Systems.Incorporated’s operations, information systems, and devices that, in routine operations, operate tocause the loss of documents, tangible items, or ESI. Examples of such features and operations

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include, but are not limited to, purging the contents of e-mail repositories by age, capacity, or othercriteria; using data or media wiping, disposal, erasure, or encryption utilities or devices; overwriting,erasing, destroying, or discarding backup media; reassigning, re-imaging or disposing of systems,servers, devices, or media; running antivirus or other programs that alter metadata; using metadatastripper utilities; and destroying documents or any ESI by age or other criteria.

Servers

With respect to servers like those used to manage electronic mail and network storage, the entirecontents of each user’s network share and e-mail account should be preserved and not modified.

Storage

With respect to on-line storage and/or direct access storage devices attached to your company’smainframe computers and /or minicomputers, in addition to the above, you or any third party are notto modify or delete any ESI, “deleted” files, and/or the file fragments existing on the date of thisletter’s delivery that contain potentially relevant information.

With regard to all electronic media used for offline storage, including magnetic tapes and cartridges,optical media, electronic media, and other media or combinations of media containing potentiallyrelevant information, you are requested to stop any activity which may result in the loss of any ESI,including rotation, destruction, overwriting and erasure in whole or in part. This request is intendedto cover all media used for data or information storage in connection with your computer systems,including magnetic tapes and cartridges, magneto-optical disks, floppy diskettes, and all other media,whether used with personal computers, mini computers, mainframes, or other computers, andwhether containing backup and/or archival ESI.

Personal Computers

You should take immediate steps to preserve all ESI on all personal computers used by yourcompany’s support staff, the company’s management team, their IT support personnel, the accounting department, the company’s officers and directors and employees that in anyway relateto the subject matter of this action. As to fixed devices, (1) a true and correct copy is to be made ofall such ESI, including all active files and completely restored versions of all deleted electronic filesand file fragments; (2) full directory listings (including hidden files) for all directories andsubdirectories (including hidden directories) on such fixed devices should be written; and (3) all suchcopies and listings are to be preserved until this litigation is ended. Floppy diskettes, CDs, DVDs,tapes, and other non-fixed media relating to this matter are to be collected and stored pendingresolution of this litigation.

Portable Systems

In addition to your immediate preservation of ESI, documents and tangible items in the company’sbusiness, on servers and workstations, you should also determine if any home or portable systems

E-Discovery | 72


may contain potentially relevant data or information. To the extent that officers, board members,or employees have sent or received potentially relevant e-mails or created or reviewed potentiallyrelevant documents away from the company’s offices, you must preserve the contents of systems,devices, and media used for these purposes (including not only potentially relevant data fromportable and home computers, but also from portable thumb drives, CD-R disks, PDAs, smartphones, voice mail boxes, or other forms of ESI storage). Additionally, if any employees, officers,partners or directors of the company used online or browser-based e-mail accounts or services tosend or receive potentially relevant messages and attachments, the contents of these accountmailboxes should be preserved.

Evidence Created or Acquired in the Future

With regard to documents, tangible things, and ESI that are created or come into your custody,possession or control subsequent to the date of delivery of this letter, potentially relevant evidenceis to be preserved. You should take all appropriate action to avoid destruction of potentially relevant evidence.

Please forward a copy of this letter to all persons and entities possessing or controlling potentiallyrelevant evidence. Your obligation to preserve potentially relevant evidence is required by law.

Please contact me if you have any questions regarding this letter. I would be happy to meet andconfer with you or your designee over the issues set forth herein.

Very truly yours,



cc: , CFLS Ms. , CFLS

E-Discovery | 73

534 241 FEDERAL RULES DECISIONS

Jack R. LORRAINE and, BeverlyMack, Plaintiffs,

v.

MARKEL AMERICAN INSURANCECOMPANY, Defendants.

Civil Action No. PWG–06–1893.

United States District Court,D. Maryland.

May 4, 2007.

Background: Suit was brought to enforcearbitrator’s award. Parties moved andcross moved for summary judgment.

Holding: The District Court, Grimm,Chief United States Magistrate Judge,held that failure of both parties to observeevidence rules, as they applied to electroni-cally stored information (ESI), precludedany entry of summary judgment.Motions denied.

1. Alternative Dispute Resolution O200When the parties to an arbitration

agreement do not agree to submit questionsof arbitrability to the arbitrator for resolu-tion, determining the scope of the agreementis an issue for the court to decide.

2. Evidence O351In order for electronically stored infor-

mation (ESI) to be admissible, it must be (1)relevant, (2) authentic, (3) not hearsay oradmissible under an exception to rule barringhearsay evidence, (4) original or duplicate, oradmissible as secondary evidence to prove itscontents, and (5) probative value must out-weigh its prejudicial effect. Fed.Rules Evid.Rules 401, 403, 803, 804, 807, 901(a), 1001-1008, 28 U.S.C.A.

3. Federal Civil Procedure O2545Failure of counsel for both sides, in suit

to compel arbitration, to observe evidencerules concerning electronically stored infor-mation (ESI), particularly rules governingauthenticity, hearsay issues, original writing

rule, and absence of unfair prejudice, ren-dered their summary judgment exhibits inad-missible. Fed.Rules Evid.Rules 401, 403,803, 804, 807, 901(a), 1001-1008, 28 U.S.C.A.

Geoffrey S. Tobias, Ober Kaler Grimes andShriver, Baltimore, MD, for Plaintiffs.

Peter Joseph Basile, Ferguson Schetelichand Ballew PA, Baltimore, MD, for Defen-dant.

MEMORANDUM OPINION

GRIMM, Chief United States MagistrateJudge.

Plaintiffs/Counter–Defendants Jack Lor-raine and Beverly Mack bring this action toenforce a private arbitrator’s award findingthat certain damage to their yacht, Chessie,was caused by a lightning strike that oc-curred on May 17, 2004, while Chessie wasanchored in the Chesapeake Bay.1 Defen-dant/ Counter–Plaintiff Markel American In-surance Company (‘‘Markel’’) likewise hascounterclaimed to enforce the arbitrator’saward, which, in addition to concluding thatcertain damage to Chessie’s hull was causedby lightning, also concluded that the damageincurred was limited to an amount of $14,100,plus incidental costs. Following discovery,Plaintiffs moved for summary judgment (Pa-per No. 16), and Defendants filed a responsein opposition and cross motion for summaryjudgment (Paper No. 19), to which Plaintiffsfiled an opposition and reply (Paper No. 21),followed by Defendant’s reply (Paper No.23). In a letter order dated February 7,2007 (Paper No. 26), I denied without preju-dice both motions for the reasons discussedmore fully below, and informed the partiesthat I intended to file a more comprehensiveopinion explaining my ruling, which is foundherein.

BACKGROUND

It is difficult for the Court to provide theappropriate background to the underlying

1. This case has been referred to me for all pro-ceedings with the consent of the parties. 28

U.S.C. § 636(c)(1)(2006); Local Rule 301.4.

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535LORRAINE v. MARKEL AMERICAN INS. CO.Cite as 241 F.R.D. 534 (D.Md. 2007)

arbitration in this case because, as will bediscussed in greater detail below, neitherparty has proffered any admissible evidenceto support the facts set forth in their respec-tive motions. See FED.R.CIV.P. 56(c). Basedon the pleadings, however, it appears undis-puted that Chessie was struck by lightningon May 17, 2004, and that Plaintiffs filed aclaim with Markel, their insurance carrier,for certain damage incurred as a result of thestrike. Compl. ¶¶ 5, 6; Answer ¶¶ 2, 6.Markel issued payment under the policy forsome of the damage claimed, and the matterwould have been concluded had Plaintiffs notdiscovered damage to the hull when theypulled the boat out of the water severalmonths later. Compl. ¶ 7. Markel deniedthat the hull damage was caused by thelightning strike and/or covered by Plaintiffs’insurance policy, and initiated a declaratoryjudgment action in the United States DistrictCourt for the Middle District of Pennsylvaniato that effect. Compl. ¶ 13, Answer ¶ 15.The parties subsequently negotiated a pri-vate arbitration agreement and voluntarilydismissed the Pennsylvania claim. Compl.¶ 15, Answer ¶ 17.

The scope of the arbitration agreement isthe basis of this litigation. The final agree-ment states, in relevant part,

‘‘The parties to this dispute TTT haveagreed that an arbitrator shall determinewhether certain bottom damage in theamount of $36,000, to the Yacht CHESSIEwas caused by the lightning strike occur-ring on May 17, 2004, or osmosis, asclaimed by [Markel].’’

Pl.’s Mot. Ex. A, Def.’s Mot. Ex. C. Theagreement also contemplated that the arbi-trator would issue an ‘‘award’’ within 30 daysof the final submission of evidence. Id. Thearbitrator issued his award on June 12, 2006.In it, he held that some, but not all, ofChessie’s hull damage was caused by light-ning. Specifically, the arbitrator stated,

‘‘I find that there is a basis for an argu-ment regarding loss related damage. Evi-dence shows that the lightning strike onMary 17, 2004 was discharged through thehull below the water lineTTTT The corrup-tion of the surface laminate of the bot-tom is basis for a loss related awardTTTT

The award amount must be kept in propor-tion to the loss related damage only. Ifind that the repairs relating to that dam-age should be based on a cost of $300.00per foot ($14,000.00). Other expenses re-lating to charges for hauling, mast un-stepping/re-stepping, blocking, storage,moving, launching or environmental feesshould be added to that amount.’’

Def.’s Mot. Ex. D. This award forms thebasis for the present litigation, in which bothparties ostensibly seek to confirm and en-force the arbitrator’s decision.

SUMMARY JUDGMENT STANDARDSummary judgment is appropriate when

there exists no genuine issue as to any mate-rial fact and a decision may be rendered as amatter of law. Fed.R.Civ.P. 56(c); Andersonv. Liberty Lobby, Inc., 477 U.S. 242, 247, 106S.Ct. 2505, 91 L.Ed.2d 202 (1986). The partymoving for summary judgment has the bur-den of demonstrating that there are no genu-ine issues of material facts to resolve. Pul-liam Inv. Co. v. Cameo Properties, 810 F.2d1282, 1286 (4th Cir.1987). In determiningwhether summary judgment should be grant-ed, the court ‘‘must assess the documentarymaterials submitted by the parties in thelight most favorable to the nonmoving party.’’Id. (citing Gill v. Rollins Protective ServicesCo., 773 F.2d 592, 598 (4th Cir.1985)).

If the party seeking summary judgmentdemonstrates that there is no evidence tosupport the nonmoving party’s case, the bur-den shifts to the nonmoving party to identifyspecific facts showing that there is a genuineissue for trial. The existence of only a ‘‘scin-tilla of evidence’’ is not enough to defeat amotion for summary judgment. Instead, theevidentiary materials submitted must showfacts from which the finder of fact reasonablycould find for the party opposing summaryjudgment. Anderson, 477 U.S. at 251, 106S.Ct. 2505.

Moreover, to be entitled to considerationon summary judgment, the evidence support-ing the facts set forth by the parties must besuch as would be admissible in evidence. SeeFED.R.CIV.P. 56(c); see also Sakaria v.Trans World Airlines, 8 F.3d 164, 171 (4thCir.1993) (finding that the district court

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properly did not consider inadmissible hear-say in an affidavit filed with motion for sum-mary judgment); Mitchell v. Data GeneralCorp., 12 F.3d 1310, 1315–16 (4th Cir.1993)(‘‘The summary judgment inquiry thus scru-tinizes the plaintiff’s case to determinewhether the plaintiff has proffered sufficientproof in the form of admissible evidence thatcould carry the burden of proof in his claimat trial.’’). With regard to documentary evi-dence, this Court previously has held that,

‘‘[u]nsworn, unauthenticated documentscannot be considered on a motion for sum-mary judgment. To be admissible at thesummary judgment stage, documents mustbe authenticated by and attached to anaffidavit that meets the requirements ofRule 56(e)-that the documents be admissi-ble in evidence.’’

Miskin v. Baxter Healthcare Corp. et al., 107F.Supp.2d 669 (D.Md.1999) (Grimm, J.) (cit-ing Orsi v. Kirkwood, 999 F.2d 86, 92 (4thCir.1993)).

THE FEDERAL ARBITRATION ACT

As a preliminary matter, Plaintiffs havestyled their complaint as one to enforce thearbitrator’s award under § 9 of the FederalArbitration Act, 9 U.S.C. § 1 et seq. (2006),when, in reality, it is a complaint to modifythe award under section 10 of that statute.This is so because, although the arbitratorfound that only $14,100 of Chessie’s hull dam-age was caused by lightning, Plaintiffs none-theless ask the Court to award a judgment inthe amount of $36,000. Plaintiffs’ argumentregarding the substance of the agreementbetween the parties further underscores thisconclusion. Specifically, Plaintiffs allege thatthe parties entered into an ‘‘all or nothing’’agreement, whereby the arbitrator was todetermine that the hull damage was causedby lightning, and if so, award Plaintiffs the$36,000.00 in damages claimed. Pl.’s MSJ at5. According to Plaintiffs,

‘‘the Arbitrator’s sole function was to de-termine whether the hull damage, in theagreed-upon amount of $36,000, wascaused by the lightning strike occurring onMay 17, 2004. The Arbitration Agreementdid not grant the Arbitrator the authorityto assess a damage amount.’’

Id. (emphasis added). This argument is con-sistent with a motion to modify under§ 10(b)(4), which permits a federal court tomodify or vacate an arbitration award upon ashowing that ‘‘the arbitrator[ ] exceeded theirpowers.’’ Accordingly, the Court will evalu-ate Plaintiffs’ motion under § 10 of the FAA.

In contrast, Markel’s complaint truly isone to enforce the arbitrator’s award. Mark-el denies that it entered into an ‘‘all or noth-ing’’ arbitration agreement with regard todamages, and seeks to enforce the arbitra-tor’s award of $14,100. Def.’s Mot. at 5.

The question before the Court, therefore,is whether the arbitrator exceeded his au-thority under the arbitration agreement byassigning a value to the damages attributableto the lightning strike that was less than the$36,000 claimed by Plaintiffs. If the answeris yes, then the court can vacate, remand, ormodify the award. 9 U.S.C. § 10, 11. If theanswer is no, then the court must grantDefendant’s motion to confirm the award un-der § 9 of the FAA.

[1] To resolve whether the arbitrator ex-ceeded his authority, the Court first mustdetermine the scope of the arbitration agree-ment; specifically, whether the partiesagreed to arbitrate the amount of damagescaused by the lightning strike. Because theparties did not agree to submit questions ofarbitrability to the arbitrator for resolution,determining the scope of the agreement is anissue for the Court to decide. First Optionsof Chicago, Inc. v. Kaplan, 514 U.S. 938, 943,115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Inthis regard, the Supreme Court has advisedthat, ‘‘[w]hen deciding whether the partiesagreed to arbitrate a certain matter TTT

courts generally TTT should apply ordinarystate-law principles of contract interpreta-tion.’’ Kaplan, 514 U.S. at 944, 115 S.Ct.1920, accord E.I. Dupont De Nemours & Co.v. Martinsville Nylon Employees’ CouncilCorp., 78 F.3d 578 (4th Cir.1996). In doingso, the Court must ‘‘give due regard to thefederal policy favoring arbitration and re-solve ‘any doubts concerning the scope ofarbitrable issues in favor of arbitration.’ ’’Hill v. PeopleSoft USA, Inc., 412 F.3d 540,543 (4th Cir.2005) (quoting Moses H. ConeMem’l Hosp. v. Mercury Constr. Corp., 460

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U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765(1983)). Maryland law 2 regarding contractinterpretation requires the court first to ‘‘de-termine from the language of the agreementitself what a reasonable person in the posi-tion of the parties would have meant at thetime it was effectuated.’’ GMAC v. Daniels,303 Md. 254, 262, 492 A.2d 1306, 1310 (Md.1985). If the language of the contract isclear and unambiguous, then the Court‘‘must presume that the parties meant whatthey expressed.’’ Id. If the language of thecontract is ambiguous, however, the courtmay consider parol evidence to determine theintent of the parties. E.g. Truck Ins. Exch.v. Marks Rentals, Inc., 288 Md. 428, 433, 418A.2d 1187, 1190 (Md.1980). Contract lan-guage is ambiguous if it could be read tohave more than one meaning by a reasonablyprudent layperson. Clendenin Bros., Inc. v.United States Fire Ins. Co., 390 Md. 449,459, 889 A.2d 387, 393–394 (Md.2006), citingTruck Ins. Exch., 288 Md. at 433, 418 A.2d at1190.

Here, I find that the language of the arbi-tration agreement is ambiguous; it could beread either to permit the arbitrator to deter-mine the amount of damage to Chessie, or tolimit his authority to determining onlywhether the claimed damages were causedby the lightning strike. Under normal cir-cumstances, the Court would look to thedocumentary evidence provided by the par-ties, which in this case includes the arbitra-tion agreement, award, and copies of e-mailcorrespondence between counsel, ostensiblysupplied as extrinsic evidence of the parties’intent with regard to the scope of the arbi-tration agreement. In this case, however,the admissibility problems with the evidencepresented are manifest. First, none of thedocumentary evidence presented is authenti-cated by affidavit or otherwise. Next, mostof the facts relevant to the contract negotia-tions at issue have been provided by counselipse dixit, without supporting affidavits ordeposition testimony. The evidentiary prob-lems associated with the copies of e-mailoffered as parol evidence likewise are sub-stantial because they were not authenticated,

but instead were simply attached to the par-ties’ motions as exhibits.

Because neither party to this dispute com-plied with the requirements of Rule 56 thatthey support their motions with admissibleevidence, I dismissed both motions withoutprejudice to allow resubmission with properevidentiary support. (Paper No. 26). I fur-ther observed that the unauthenticated e-mails are a form of computer generated evi-dence that pose evidentiary issues that arehighlighted by their electronic medium. Giv-en the pervasiveness today of electronicallyprepared and stored records, as opposed tothe manually prepared records of the past,counsel must be prepared to recognize andappropriately deal with the evidentiary issuesassociated with the admissibility of electroni-cally generated and stored evidence. Al-though cases abound regarding the discover-ability of electronic records, research hasfailed to locate a comprehensive analysis ofthe many interrelated evidentiary issues as-sociated with electronic evidence. Becausethere is a need for guidance to the barregarding this subject, this opinion under-takes a broader and more detailed analysis ofthese issues than would be required simplyto resolve the specific issues presented inthis case. It is my hope that it will provide ahelpful starting place for understanding thechallenges associated with the admissibilityof electronic evidence.

ADMISSIBILITY OFELECTRONICALLY STORED

INFORMATIONBe careful what you ask for, the saying

goes, because you might actually get it. Forthe last several years there has been seem-ingly endless discussion of the rules regard-ing the discovery of electronically stored in-formation (‘‘ESI’’). The adoption of a seriesof amendments to the Federal Rules of CivilProcedure relating to the discovery of ESI inDecember of 2006 has only heightened, notlessened, this discussion. Very little hasbeen written, however, about what is re-quired to insure that ESI obtained duringdiscovery is admissible into evidence at trial,or whether it constitutes ‘‘such facts as would

2. The parties do not dispute that Maryland law applies.

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be admissible in evidence’’ for use in sum-mary judgment practice. FED.R.CIV.P.56(e).3 This is unfortunate, because consid-ering the significant costs associated withdiscovery of ESI, it makes little sense to goto all the bother and expense to get electron-ic information only to have it excluded fromevidence or rejected from consideration dur-ing summary judgment because the propo-nent cannot lay a sufficient foundation to getit admitted. The process is complicated bythe fact that ESI comes in multiple eviden-tiary ‘‘flavors,’’ including e-mail, website ESI,internet postings, digital photographs, andcomputer-generated documents and datafiles.4

[2] Whether ESI is admissible into evi-dence is determined by a collection of evi-dence rules 5 that present themselves like aseries of hurdles to be cleared by the propo-nent of the evidence. Failure to clear any ofthese evidentiary hurdles means that the evi-dence will not be admissible. Whenever ESIis offered as evidence, either at trial or insummary judgment, the following evidencerules must be considered: (1) is the ESIrelevant as determined by Rule 401 (does ithave any tendency to make some fact that is

of consequence to the litigation more or lessprobable than it otherwise would be); (2) ifrelevant under 401, is it authentic as re-quired by Rule 901(a) (can the proponentshow that the ESI is what it purports to be);(3) if the ESI is offered for its substantivetruth, is it hearsay as defined by Rule 801,and if so, is it covered by an applicableexception (Rules 803, 804 and 807); (4) is theform of the ESI that is being offered asevidence an original or duplicate under theoriginal writing rule, of if not, is there admis-sible secondary evidence to prove the contentof the ESI (Rules 1001–1008); and (5) is theprobative value of the ESI substantially out-weighed by the danger of unfair prejudiceor one of the other factors identified by Rule403, such that it should be excluded despiteits relevance. Preliminarily, the process bywhich the admissibility of ESI is determinedis governed by Rule 104, which addresses therelationship between the judge and the jurywith regard to preliminary fact finding asso-ciated with the admissibility of evidence.Because Rule 104 governs the very processof determining admissibility of ESI, it mustbe considered first.

3. See, e.g. Orsi v. Kirkwood, 999 F.2d 86, 92 (4thCir.1993)(‘‘It is well established that unsworn,unauthenticated documents cannot be consid-ered on a motion for summary judgment’’);Planmatics, Inc. v. Showers, 137 F.Supp.2d 616,620 (D.Md.2001) (‘‘On a motion for summaryjudgment, a district court may only considerevidence that would be admissible at trial’’ (cita-tions omitted)). See also Maryland HighwaysContractors Assoc., Inc. v. State of Maryland, 933F.2d 1246, 1251 (4th Cir.1991); Wilson v. Clan-cy, 747 F.Supp. 1154,1158 (D.Md.1990); JACK B.WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDER-

AL EVIDENCE § 901.02[1] (Joseph M. McLaughlined., Matthew Bender 2d ed.1997)(hereinafter‘‘WEINSTEIN’’).

4. Examples of internet postings include; dataposted by the site owner, data posted by otherswith the consent of the site owner, and dataposted by others without consent, such as ‘‘hack-ers.’’ Examples of computer-generated docu-ments and files include; electronically storedrecords or data, computer simulation, and com-puter animation. See 2 MCCORMICK ON EVIDENCE

§ 227 (John William Strong, et al. eds., 6thed.2006); Gregory P. Joseph, Internet and EmailEvidence, 13 PRAC. LITIGATOR (Mar.2002), reprintedin 5 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF

EVIDENCE MANUAL, Part 4 at 20 (9th ed.2006)(here-

inafter ‘‘Joseph’’); Hon. Paul W. Grimm andClaudia Diamond, Low–Tech Solutions to High–Tech Wizardry: Computer Generated Evidence, 37MD. B.J. 4 (July/August, 2004).

5. It has been noted that ‘‘[t]he Federal Rules ofEvidence TTT do not separately address the ad-missibility of electronic data.’’ ADAM COHEN AND

DAVID LENDER, ELECTRONIC DISCOVERY: LAW AND PRAC-

TICE § 6.01 (Aspen Publishers 2007). However,‘‘the Federal Rules of Evidence apply to compu-terized data as they do to other types of evi-dence.’’ MANUAL FOR COMPLEX LITIGATION § 11.447(4th ed.2004). Indeed, FED.R.EVID. 102 contem-plates that the rules of evidence are flexibleenough to accommodate future ‘‘growth and de-velopment’’ to address technical changes not inexistence as of the codification of the rules them-selves. Further, courts have had little difficultyusing the existing rules of evidence to determinethe admissibility of ESI, despite the technicalchallenges that sometimes must be overcome todo so. See, e.g., In re F.P., 878 A.2d 91, 95(Pa.Super.Ct.2005) (‘‘Essentially, appellantwould have us create a whole new body of lawjust to deal with e-mails or instant messagesTTTT

We believe that e-mail messages and similarforms of electronic communications can be prop-erly authenticated within the existing frameworkof [the state rules of evidence].’’).

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Preliminary Rulings onAdmissibility(Rule

104)

The relationship between Rule 104(a) and(b) can complicate the process by which ESIis admitted into evidence at trial, or may beconsidered at summary judgment. The rulestates, in relevant part:

‘‘(a) Questions of admissibility generally.Preliminary questions concerning the qual-ification of a person to be a witness, theexistence of a privilege, or the admissibilityof evidence shall be determined by thecourt, subject to the provisions of subdivi-sion (b)TTTT In making its determination itis not bound by the rules of evidence ex-cept those with respect to privileges.(b) Relevancy conditioned on fact. Whenthe relevancy of evidence depends uponthe fulfillment of a condition of fact, thecourt shall admit it upon, or subject to, theintroduction of evidence sufficient to sup-port a finding of the fulfillment of thecondition.’’

FED.R.EVID. 104(a) and (b).When the judge makes a preliminary de-

termination regarding the admissibility of ev-idence under Rule 104(a), the Federal Rulesof Evidence, except for privilege, do not ap-ply. Rule 104(a), 1101(d)(1). Therefore, thecourt may consider hearsay or other evidencethat would not be admissible if offered to thejury,6 and ‘‘hearings on preliminary mattersneed not be conducted with all the formalitiesand requirements of a trial.’’ 7 Accordingly,the trial judge may make preliminary deter-

minations in chambers or at a sidebar confer-ence in court.8

The following types of preliminary matterstypically are determined by the judge underRule 104(a): whether an expert is qualified,and if so, whether his or her opinions areadmissible; existence of a privilege; andwhether evidence is hearsay, and if so, if anyrecognized exception applies.9

The interplay between Rule 104(a) and104(b) can be a bit tricky, which is illustratedby the manner in which evidence, whetherESI or ‘‘hard copy,’’ must be authenticatedunder Rule 901(a). Authentication underRule 901 is viewed as a subset of relevancy,because ‘‘evidence cannot have a tendency tomake the existence of a disputed fact more orless likely if the evidence is not that which itsproponent claims.’’ 10 Accordingly, ‘‘[r]esolu-tion of whether evidence is authentic calls fora factual determination by the jury and ad-missibility, therefore, is governed by the pro-cedure set forth in Federal Rule of Evidence104(b) ‘relating to matters of conditional rele-vance generally.’ ’’ 11 In essence, determiningwhether ESI is authentic, and therefore rele-vant, is a two step process. First, ‘‘[b]eforeadmitting evidence for consideration by thejury, the district court must determinewhether its proponent has offered a satisfac-tory foundation from which the jury couldreasonably find that the evidence is authen-tic.’’ 12 Then, ‘‘because authentication is es-sentially a question of conditional relevancy,the jury ultimately resolves whether evidenceadmitted for its consideration is that which

6. Precision Piping and Instruments v. E.I. du Pontde Nemours and Co., 951 F.2d 613, 621 (4thCir.1991); 1 STEPHEN A. SALTZBURG ET AL., FEDERAL

RULES OF EVIDENCE MANUAL, 104.03[1][b] (9thed.2006)(hereinafter ‘‘SALTZBURG’’); WEINSTEIN at§ 104.11[1][a]; Id. at § 901.06[1][c][iii] (‘‘Rule104(a) provides that inadmissible evidence maybe considered in determining preliminary ques-tions of admissibility under Rule 104(a). Howev-er, that provision does not extend to determina-tions under Rule 104(b), so the court may notconsider inadmissible evidence in determinationsgoverned by Rule 104(b). In determining thepreliminary question of authenticity under Rule104(b), therefore, a judge may only consider evi-dence that is itself admissible.’’).

7. WEINSTEIN at § 104.11[3].

8. Id.; United States v. Branch, 970 F.2d 1368(4th Cir.1992).

9. WEINSTEIN at § 104.02[2].

10. Branch, 970 F.2d at 1370 (citing United Statesv. Sliker, 751 F.2d 477, 497–99 (2d Cir.1984)).

11. Id. (citation omitted). See also, FED.R.EVID.

901(a) advisory committee’s notes (‘‘Authentica-tion and identification represent a special aspectof relevancyTTTT This requirement of showingauthenticity or identity falls in the category ofrelevancy dependent upon fulfillment of a condi-tion of fact and is governed by the procedure setforth in Rule 104(b)’’).

12. Branch, 970 F.2d at 1370 (citing FED.R.EVID.

104(b) advisory committee’s note).

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the proponent claims.’’ 13 As the Fourth Cir-cuit summarized this process:

‘‘Although the district court is chargedwith making this preliminary determina-tion, because authentication is essentially aquestion of conditional relevancy, the juryultimately resolves whether evidence ad-mitted for its consideration is that whichthe proponent claims. Because the ulti-mate resolution of authenticity is a ques-tion for the jury, in rendering its prelimi-nary decision on whether the proponent ofevidence has laid a sufficient foundation foradmission the district court must necessar-ily assess the adequacy of the showingmade before the jury.14’’

With respect to this two step process, theFourth Circuit went on to state:

‘‘[a]n in camera hearing addressing au-thenticity does not replace the presenta-tion of authenticating evidence before thejury; the district court must revisit thisissue at trial. Thus, even though the dis-trict court may have ruled during an incamera proceeding that the proponent hadpresented sufficient evidence to support afinding that [the evidence] was authentic,evidence that would support the same rul-ing must be presented again, to the jury,before the [evidence] may be admitted.15’’

In short, there is a significant differencebetween the way that Rule 104(a) and 104(b)operate. Because, under Rule 104(b), thejury, not the court, makes the factual find-ings that determine admissibility, the factsintroduced must be admissible under therules of evidence.16 It is important to under-stand this relationship when seeking to admitESI. For example, if an e-mail is offered intoevidence, the determination of whether it isauthentic would be for the jury to decideunder Rule 104(b), and the facts that they

consider in making this determination mustbe admissible into evidence. In contrast, ifthe ruling on whether the e-mail is an admis-sion by a party opponent or a business rec-ord turns on contested facts, the admissibili-ty of those facts will be determined by thejudge under 104(a), and the Federal Rules ofEvidence, except for privilege, are inapplica-ble.

Relevance (Rules 401, 402, and 105)

The first evidentiary hurdle to overcome inestablishing the admissibility of ESI is todemonstrate that it is relevant, as defined byFederal Rule of Evidence 401, which states:

‘‘ ‘Relevant evidence’ means evidence hav-ing any tendency to make the existence ofany fact that is of consequence to thedetermination of the action more probableor less probable than it would be withoutthe evidence.’’

Clearly, facts that tend to prove essentialelements of the causes of action and affirma-tive defenses asserted in the pleadings are‘‘of consequence to the litigation,’’ as arefacts that tend to undermine or rehabilitatethe credibility of the witnesses who will testi-fy. SALTZBURG at § 401.02[8]. So too, howev-er, are background facts that, although theymay not prove elements of the claims anddefenses, and may not even be disputed,nonetheless routinely are admitted to helpthe fact finder understand the issues in thecase and the evidence introduced to prove ordisprove them. FED.R.EVID. 401 advisorycommittee’s note. It is important to recog-nize that relevance is not a static concept;evidence is not relevant or irrelevant, occupy-ing some rigid state of all or nothing. SALTZ-

BURG at § 401.02[11]. Instead, ‘‘[r]elevancy isnot an inherent characteristic of any item ofevidence but exists only as a relation be-tween an item of evidence and a matter

13. Id. at 1370–71.

14. Id. (citation omitted)

15. Id.

16. See, e.g., United States v. Safavian, 435F.Supp.2d 36, 41–42 (D.D.C.2006) (trial judgerelied on proffers of government lawyers aboutfacts learned by FBI agents during their investi-gation to make preliminary determination that e-mails were admissible, but cautioned that at trial

the government would have to call witnesseswith personal knowledge of facts and not rely onFBI agents’ testimony about what others had toldthem regarding the origin of the e-mails); SALTZ-

BURG at § 901.02[5] (‘‘In order for the trier of factto make a rational decision as to authenticity[under Rule 104(b)], the foundation evidencemust be admissible and it must actually beplaced before the jury if the Judge admits theevidence’’).

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properly provable in the case.’’ FED.R.EVID.

401 advisory committee’s note. As recog-nized by Federal Rule of Evidence 105, evi-dence may be admissible for one purpose,but not another, or against one party, but notanother.17 Therefore, it is important for theproponent of the evidence to have consideredall of the potential purposes for which it isoffered, and to be prepared to articulatethem to the court if the evidence is chal-lenged. This point is particularly significant,as discussed below, when considering hear-say objections, where disputed evidence maybe inadmissible hearsay if offered for itssubstantive truth, but admissible if offeredfor a reason other than its literal truth.

In assessing whether evidence is relevantunder Rule 401, it also is important to re-member that there is a distinction betweenthe admissibility of evidence, and the weightto which it is entitled in the eyes of the factfinder, as Rule 104(e) 18 instructs. To berelevant, evidence does not have to carry anyparticular weight—it is sufficient if it has‘‘any tendency’’ to prove or disprove a conse-quential fact in the litigation. Whether evi-dence tends to make a consequential factmore probable than it would be without theevidence is not a difficult showing to make.FED.R.EVID. 401 advisory committee’s note;SALTZBURG at § 401.02[1] (‘‘To be relevant itis enough that the evidence has a tendency tomake a consequential fact even the least bitmore probable or less probable than it wouldbe without the evidence. The question ofrelevance is thus different from whether evi-dence is sufficient to prove a point.’’) Seealso WEINSTEIN at § 401.05–06.

The Federal Rules of Evidence are clear:evidence that is not relevant is never admis-sible. FED.R.EVID. 402. Once evidence hasbeen shown to meet the low threshold of

relevance, however, it presumptively is ad-missible unless the constitution, a statute,rule of evidence or procedure, or case lawrequires that it be excluded.19 Thus, thefunction of all the rules of evidence otherthan Rule 401 is to help determine whetherevidence which in fact is relevant shouldnonetheless be excluded. FED.R.EVID. 402advisory committee’s note (‘‘Succeeding rules[in Article IV of the rules of evidence] TTT inresponse to the demands of particular poli-cies, require the exclusion of evidence despiteits relevancy.’’). See also SALTZBURG

§ 402.02[1]-[2].

Establishing that ESI has some relevancegenerally is not hard for counsel. Articulat-ing all of what may be multiple grounds ofrelevance is something that is important,though not as frequently done as it shouldbe. Accordingly, evidence that might other-wise be admitted may be excluded becausethe proponent put all his or her eggs in asingle evidentiary basket, which the trialjudge views as inapplicable, instead of care-fully identifying each potential basis for ad-missibility. That was not the problem in thiscase, however, because the e-mail and otherdocumentary evidence attached as exhibits tothe summary judgment motions are relevantto determining the scope of the arbitrationagreement between the parties, and there-fore this evidence meets the requirements ofRule 401. Assuming, as is the case here, theproponent of ESI establishes its relevanceand concomitant presumptive admissibility,the next step is to demonstrate that it isauthentic. It is this latter step that theparties in this case omitted completely.

Authenticity (Rules 901–902)

In order for ESI to be admissible, it alsomust be shown to be authentic. Rule 901(a)defines what this entails: ‘‘[t]he requirement

17. FED R. EVID. 105 states: ‘‘When evidencewhich is admissible as to one party or for onepurpose but not admissible as to another party orfor another purpose is admitted, the court, uponrequest, shall restrict the evidence to its properscope and instruct the jury accordingly.’’

18. FED.R.EVID. 104(e) states: ‘‘[Rule 104] doesnot limit the right of a party to introduce beforethe jury evidence relevant to weight or credibility[of evidence that has been admitted by an ad-verse party].’’

19. Id. (stating that ‘‘[a]ll relevant evidence isadmissible, except as otherwise provided by theConstitution of the United States, by Act of Con-gress, by these rules, or by other rules prescribedby the Supreme Court pursuant to statutory au-thority. Evidence which is not relevant is notadmissible.’’); SALTZBURG at § 401.02[1]; WEIN-

STEIN at § 402.02[1].

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of authentication or identification as a condi-tion precedent to admissibility is satisfied byevidence sufficient to support a finding thatthe matter in question is what its proponentclaims.’’ As already noted, ‘‘[a]uthenticationand identification represent a special aspectof relevancyTTTT This requirement of show-ing authenticity or identity falls into the cate-gory of relevancy dependent upon fulfillmentof a condition of fact and is governed by theprocedure set forth in Rule 104(b).’’ FED.

R.EVID. 901 advisory committee’s note. Therequirement of authentication and identifica-tion also insures that evidence is trustworthy,which is especially important in analyzinghearsay issues. Indeed, these two evidentia-ry concepts often are considered togetherwhen determining the admissibility of exhib-its or documents.20 WEINSTEIN at § 901.02[2].

A party seeking to admit an exhibit needonly make a prima facie showing that it iswhat he or she claims it to be. Id. at§ 901.02[3]. This is not a particularly highbarrier to overcome. For example, in Unit-ed States v. Safavian, the court analyzed theadmissibility of e-mail, noting,

‘‘[t]he question for the court under Rule901 is whether the proponent of the evi-dence has ‘offered a foundation from whichthe jury could reasonably find that theevidence is what the proponent says itisTTTT’ The Court need not find that theevidence is necessarily what the proponentclaims, but only that there is sufficientevidence that the jury ultimately might doso.’’

435 F.Supp.2d at 38 (citations omitted). Seealso United States v. Meienberg, 263 F.3d1177, 1180 (10th Cir.2001) (analyzing admissi-bility of printouts of computerized records);United States v. Tank, 200 F.3d 627, 630 (9thCir.2000) (analyzing admissibility of exhibitsreflecting chat room conversations); UnitedStates v. Reilly, 33 F.3d 1396, 1404 (3dCir.1994)(discussing admissibility of radio-telegrams); United States v. Howard–Arias,679 F.2d 363, 366 (4th Cir.1982)(addressingchain of authenticity); Telewizja Polska

USA, Inc. v. Echostar Satellite Corp., 2004WL 2367740, at * 16 (N.D.Ill. Oct.15, 2004)(analyzing admissibility of the content of awebsite).

Ironically, however, counsel often fail tomeet even this minimal showing when at-tempting to introduce ESI, which under-scores the need to pay careful attention tothis requirement. Indeed, the inability toget evidence admitted because of a failure toauthenticate it almost always is a self-inflict-ed injury which can be avoided by thoughtfuladvance preparation. See, e.g., In re VeeVinhnee, 336 B.R. 437 (proponent failedproperly to authenticate exhibits of electroni-cally stored business records); United Statesv. Jackson, 208 F.3d 633, 638 (7th Cir.2000)(proponent failed to authenticate exhibitstaken from an organization’s website); St.Luke’s Cataract and Laser Institute PA v.Sanderson, 2006 WL 1320242, at *3–4(M.D.Fla. May 12, 2006) (excluding exhibitsbecause affidavits used to authenticate exhib-its showing content of web pages were factu-ally inaccurate and affiants lacked personalknowledge of facts); Rambus v. InfineonTech. AG, 348 F.Supp.2d 698 (E.D.Va.2004)(proponent failed to authenticate computergenerated business records); Wady v. Provi-dent Life and Accident Ins. Co. of Am., 216F.Supp.2d 1060 (C.D.Cal.2002) (sustaining anobjection to affidavit of witness offered toauthenticate exhibit that contained docu-ments taken from defendant’s website be-cause affiant lacked personal knowledge);Indianapolis Minority Contractors Assoc.,Inc. v. Wiley, 1998 WL 1988826, at *7(S.D.Ind. May 13, 1998) (proponent of com-puter records failed to show that they werefrom a system capable of producing reliableand accurate results, and therefore, failed toauthenticate them).

Although courts have recognized that au-thentication of ESI may require greaterscrutiny than that required for the authenti-

20. See, e.g., In re Vee Vinhnee, 336 B.R. 437, 444(9th Cir. BAP 2005) (In considering admissibilityof electronically stored business records, thecourt noted ‘‘[o]rdinarily, because the businessrecord foundation commonly covers the ground,

the authenticity analysis [under Rule 902(11)] ismerged into the business record analysis withoutformal focus on the question.’’ (citation omit-ted)).

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cation of ‘‘hard copy’’ documents,21 they havebeen quick to reject calls to abandon theexisting rules of evidence when doing so.For example, in In re F.P. the court ad-dressed the authentication required to intro-duce transcripts of instant message conversa-tions. In rejecting the defendant’s challengeto this evidence, it stated:

‘‘Essentially, appellant would have us cre-ate a whole new body of law just to dealwith e-mails or instant messages. Theargument is that e-mails or text messagesare inherently unreliable because of theirrelative anonymity and the fact that whilean electronic message can be traced to aparticular computer, it can rarely be con-nected to a specific author with any cer-tainty. Unless the purported author isactually witnessed sending the e-mail,there is always the possibility it is not fromwhom it claims. As appellant correctlypoints out, anybody with the right pass-word can gain access to another’s e-mailaccount and send a message ostensiblyfrom that person. However, the same un-certainties exist with traditional writtendocuments. A signature can be forged; aletter can be typed on another’s typewrit-er; distinct letterhead stationary can becopied or stolen. We believe that e-mailmessages and similar forms of electroniccommunication can be properly authenti-cated within the existing framework ofPaR.E. 901 and Pennsylvania case law TTT

We see no justification for constructing

unique rules of admissibility of electroniccommunications such as instant messages;they are to be evaluated on a case-by-casebasis as any other document to determinewhether or not there has been an adequatefoundational showing of their relevanceand authenticity.’’

878 A.2d at 95–96. Indeed, courts increas-ingly are demanding that proponents of ev-idence obtained from electronically storedinformation pay more attention to thefoundational requirements than has beencustomary for introducing evidence notproduced from electronic sources. As onerespected commentator on the FederalRules of Evidence has noted:

‘‘In general, electronic documents or rec-ords that are merely stored in a computerraise no computer-specific authenticationissues. If a computer processes data rath-er than merely storing it, authenticationissues may arise. The need for authentica-tion and an explanation of the computer’sprocessing will depend on the complexityand novelty of the computer processing.There are many states in the developmentof computer data where error can be intro-duced, which can adversely affect the accu-racy and reliability of the output. Inaccu-rate results occur most often because ofbad or incomplete data inputting, but canalso happen when defective software pro-grams are used or stored-data media be-come corrupted or damaged.

21. In In re Vee Vinhnee, the court addressed theauthentication of electronically stored businessrecords It observed ‘‘[a]uthenticating a paperlesselectronic record, in principle, poses the sameissue as for a paper record, the only differencebeing the format in which the record is main-tainedTTTTT’’ However, it quickly noted ‘‘[t]hepaperless electronic record involves a differencein the format of the record that presents morecomplicated variations on the authenticationproblem than for paper records. Ultimately,however, it all boils down to the same questionof assurance that the record is what it purportsto be.’’ The court did conclude, however, that‘‘it is becoming recognized that early versions ofcomputer foundations were too cursory, eventhough the basic elements covered the ground,’’before exercising a demanding analysis of thefoundation needed to authenticate a paperlessbusiness record and lay the foundation for thebusiness record exception to the hearsay rule,ultimately ruling that a proper foundation had

not been established, and excluding the evidence.336 B.R. at 444–45. See also MANUAL FOR COMPLEX

LITIGATION at § 11.447 (‘‘In general, the FederalRules of Evidence apply to computerized data asthey do to other types of evidence. Computer-ized data, however, raise unique issues concern-ing accuracy and authenticity. Accuracy may beimpaired by incomplete data entry, mistakes inoutput instructions, programming errors, dam-age and contamination of storage media, poweroutages, and equipment malfunctions. The in-tegrity of data may also be compromised in thecourse of discovery by improper search and re-trieval techniques, data conversion, or mishan-dling. The proponent of computerized evidencehas the burden of laying a proper foundation byestablishing its accuracy. The judge shouldtherefore consider the accuracy and reliability ofcomputerized evidence, including any necessarydiscovery during pretrial proceedings, so thatchallenges to the evidence are not made for thefirst time at trial.’’).

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The authentication requirements of Rule901 are designed to set up a thresholdpreliminary standard to test the reliabilityof evidence, subject to later review by anopponent’s cross-examination. Factors thatshould be considered in evaluating the reli-ability of computer-based evidence includethe error rate in data inputting, and thesecurity of the systems. The degree offoundation required to authenticate com-puter-based evidence depends on the quali-ty and completeness of the data input, thecomplexity of the computer processing, theroutineness of the computer operation, andthe ability to test and verify results of thecomputer processing.Determining what degree of foundation isappropriate in any given case is in thejudgment of the court. The required foun-dation will vary not only with the particu-lar circumstances but also with the individ-ual judge.’’

WEINSTEIN at § 900.06[3]. Obviously, there isno ‘‘one size fits all’’ approach that can betaken when authenticating electronic evi-dence, in part because technology changes sorapidly that it is often new to many judges.

Although Rule 901(a) addresses the re-quirement to authenticate electronically gen-erated or electronically stored evidence, it issilent regarding how to do so. Rule 901(b),however, provides examples of how authenti-cation may be accomplished. It states:

‘‘(b) Illustrations.By way of illustration only, and not by wayof limitation, the following are examples ofauthentication or identification conformingwith the requirements of this rule:(1) Testimony of witness with knowledge.Testimony that a matter is what it isclaimed to be.(2) Nonexpert opinion on handwriting.Nonexpert opinion as to the genuineness ofhandwriting, based upon familiarity not ac-quired for purposes of the litigation.(3) Comparison by trier or expert witness.Comparison by the trier of fact or byexpert witnesses with specimens whichhave been authenticated.(4) Distinctive characteristics and the like.Appearance, contents, substance, internal

patterns, or other distinctive characteris-tics, taken in conjunction with circum-stances.(5) Voice identification. Identification of avoice, whether heard firsthand or throughmechanical or electronic transmission orrecording, by opinion based upon hearingthe voice at any time under circumstancesconnecting it with the alleged speaker.(6) Telephone conversations. Telephoneconversations, by evidence that a call wasmade to the number assigned at the timeby the telephone company to a particularperson or business, if (A) in the case of aperson, circumstances, including self-iden-tification, show the person answering to bethe one called, or (B) in the case of abusiness, the call was made to a place ofbusiness and the conversation related tobusiness reasonably transacted over thetelephone.(7) Public records or reports. Evidencethat a writing authorized by law to berecorded or filed and in fact recorded orfiled in a public office, or a purportedpublic record, report, statement, or datacompilation, in any form, is from the publicoffice where items of this nature are kept.(8) Ancient documents or data compilation.Evidence that a document or data compila-tion, in any form, (A) is in such conditionas to create no suspicion concerning itsauthenticity, (B) was in a place where it, ifauthentic, would likely be, and (C) hasbeen in existence 20 years or more at thetime it is offered.(9) Process or system. Evidence describ-ing a process or system used to produce aresult and showing that the process orsystem produces an accurate result.(10) Methods provided by statute or rule.Any method of authentication or identifica-tion provided by Act of Congress or byother rules prescribed by the SupremeCourt pursuant to statutory authority.’’

The ten methods identified by Rule 901(b)are non-exclusive. FED.R.EVID. 901(b) advi-sory committee’s note (‘‘The examples arenot intended as an exclusive enumeration ofallowable methods but are meant to guideand suggest, leaving room for growth anddevelopment in this area of the law.’’); WEIN-

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STEIN at § 901.03[1] (‘‘Parties may use any ofthe methods listed in Rule 901(b), any combi-nation of them, or any other proof that maybe available to carry their burden of showingthat the proffered exhibit is what they claimit to be.’’); Telewizja Polska USA, 2004 WL2367740 (authentication methods listed inRule 901(b) are ‘‘non-exhaustive’’). See alsoUnited States v. Simpson, 152 F.3d 1241,1249 (10th Cir.1998) (evaluating methods ofauthenticating a printout of the text of a chatroom discussion between the defendant andan undercover detective in a child pornogra-phy case).

Although the methods of authenticationlisted in Rule 901(b) ‘‘relate for the most partto documents TTT some attention [has been]given to TTT computer print-outs,’’ particular-ly Rule 901(b)(9), which was drafted with‘‘recent developments’’ in computer technolo-gy in mind. FED.R.EVID. 901(b) advisorycommittee’s note. When faced with resolv-ing authentication issues for electronic evi-dence, courts have used a number of themethods discussed in Rule 901(b), as well asapproved some methods not included in thatrule:Rule 901(b)(1).

This rule permits authentication by: ‘‘[t]es-timony that a matter is what it is claimed tobe.’’ This rule ‘‘contemplates a broad spec-trum’’ including ‘‘testimony of a witness whowas present at the signing of a docu-mentTTTT’’ FED.R.EVID. 901(a) advisory com-mittee’s note. ‘‘[I]n recognition of the propo-nent’s light burden of proof in authenticatingan exhibit TTT the ‘knowledge’ requirementof Rule 901(b)(1) is liberally construed. Awitness may be appropriately knowledgeablethrough having participated in or observedthe event reflected by the exhibit.’’ WEIN-

STEIN at § 901.03[2] (cross-reference omit-ted). Courts considering the admissibility of

electronic evidence frequently have acknowl-edged that it may be authenticated by awitness with personal knowledge. UnitedStates v. Kassimu, 2006 WL 1880335 (5thCir. May 12, 2006) (ruling that copies of apost office’s computer records could be au-thenticated by a custodian or other qualifiedwitness with personal knowledge of the pro-cedure that generated the records); St.Luke’s, 2006 WL 1320242 at *3–4 (‘‘To au-thenticate printouts from a website, the par-ty proffering the evidence must produce‘some statement or affidavit from someonewith knowledge [of the website] TTT for ex-ample [a] web master or someone else withpersonal knowledge would be sufficient.’ ’’ (ci-tation omitted)); Safavian, 435 F.Supp.2d at40 n. 2 (D.D.C.2006) (noting that e-mail maybe authenticated by a witness with knowl-edge that the exhibit is what it is claimed tobe); Wady, 216 F.Supp.2d 1060 (sustainingobjection to affidavit of plaintiff’s witnessattempting to authenticate documents takenfrom the defendant’s website because theaffiant lacked personal knowledge of whomaintained the website or authored the docu-ments). Although Rule 901(b)(1) certainly ismet by the testimony of a witness that actu-ally drafted the exhibit, it is not requiredthat the authenticating witness have personalknowledge of the making of a particular ex-hibit if he or she has personal knowledge ofhow that type of exhibit is routinely made.WEINSTEIN at § 901.03[2].22 It is necessary,however, that the authenticating witness pro-vide factual specificity about the process bywhich the electronically stored information iscreated, acquired, maintained, and preservedwithout alteration or change, or the processby which it is produced if the result of asystem or process that does so, as opposed toboilerplate, conclusory statements that sim-ply parrot the elements of the business rec-

22. ‘‘Oftentimes a witness need not be familiarwith specific exhibits to be sufficiently knowl-edgeable to authenticate or identify them. Busi-ness records and records of government agen-cies, for example, are frequently authenticated bywitnesses who have never seen the specific rec-ords that comprise the exhibits and know noth-ing about the specific information they contain.Their authentication is accomplished when a wit-ness identifies the exhibits as documents of atype that the organization typically develops, and

testifies about the procedures the organizationfollows in generating, acquiring, and maintain-ing documents of that type, and explains themethod by which the specific exhibits were re-trieved from the organization’s files. Similarly,exhibits that are automatically produced uponthe occurrence of specified events may be au-thenticated by the testimony of persons withknowledge of the system or process that resultsin the production of the exhibit.’’ (footnote omit-ted).

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ord exception to the hearsay rule, Rule803(6), or public record exception, Rule803(8).Rule 901(b)(3).

This rule allows authentication or identifi-cation by ‘‘[c]omparison by the trier of fact orby expert witnesses with specimens whichhave been authenticated.’’ Interestingly, therule allows either expert opinion testimony toauthenticate a questioned document by com-paring it to one known to be authentic, or bypermitting the factfinder to do so. Obvious-ly, the specimen used for the comparisonwith the document to be authenticated mustbe shown itself to be authentic. WEINSTEIN

at § 901.03[7][b]. This may be accomplishedby any means allowable by Rule 901 or 902,as well as by using other exhibits alreadyadmitted into evidence at trial, or admittedinto evidence by judicial notice under Rule201. Id. Although the common law origin ofRule 901(b)(3) involved its use for authenti-cating handwriting or signatures, FED. R.EVID. 901(b)(3) advisory committee’s note, itnow is commonly used to authenticate docu-ments, WEINSTEIN at § 901.03[7][b], and atleast one court has noted its appropriate usefor authenticating e-mail. Safavian, 435F.Supp.2d at 40 (E-mail messages ‘‘that arenot clearly identifiable on their own can beauthenticated TTT by comparison by the trierof fact (the jury) with ‘specimens which havebeen [otherwise] authenticated’—in this case,those e-mails that already have been inde-pendently authenticated under Rule901(b)(4).’’).Rule 901(b)(4.)

This rule is one of the most frequentlyused to authenticate e-mail and other elec-tronic records. It permits exhibits to beauthenticated or identified by ‘‘[a]ppearance,contents, substance, internal patterns, orother distinctive characteristics, taken inconjunction with circumstances.’’ The com-mentary to Rule 901(b)(4) observes ‘‘[t]hecharacteristics of the offered item itself, con-sidered in the light of circumstances, affordauthentication techniques in great variety,’’including authenticating an exhibit by show-ing that it came from a ‘‘particular personby virtue of its disclosing knowledge of factsknown peculiarly to him,’’ or authenticating

‘‘by content and circumstances indicating itwas in reply to a duly authenticated’’ docu-ment. FED.R.EVID. 901(b)(4) advisory com-mittee’s note. Use of this rule often ischaracterized as authentication solely by‘‘circumstantial evidence.’’ WEINSTEIN at§ 901.03[8]. Courts have recognized this ruleas a means to authenticate ESI, including e-mail, text messages and the content of web-sites. See United States v. Siddiqui, 235F.3d 1318, 1322–23 (11th Cir.2000) (allowingthe authentication of an e-mail entirely bycircumstantial evidence, including the pres-ence of the defendant’s work e-mail address,content of which the defendant was familiarwith, use of the defendant’s nickname, andtestimony by witnesses that the defendantspoke to them about the subjects containedin the e-mail); Safavian, 435 F.Supp.2d at40 (same result regarding e-mail); In reF.P., 878 A.2d at 94 (noting that authentica-tion could be accomplished by direct evi-dence, circumstantial evidence, or both, butultimately holding that transcripts of instantmessaging conversation circumstantiallywere authenticated based on presence of de-fendant’s screen name, use of defendant’sfirst name, and content of threatening mes-sage, which other witnesses had corroborat-ed); Perfect 10, Inc. v. Cybernet Ventures,Inc., 213 F.Supp.2d 1146, 1153–54 (C.D.Cal.2002) (admitting website postings as evi-dence due to circumstantial indicia of au-thenticity, including dates and presence ofidentifying web addresses).

One method of authenticating electronicevidence under Rule 901(b)(4) is the use of‘‘hash values’’ or ‘‘hash marks’’ when makingdocuments. A hash value is:

‘‘A unique numerical identifier that can beassigned to a file, a group of files, or aportion of a file, based on a standard math-ematical algorithm applied to the charac-teristics of the data set. The most com-monly used algorithms, known as MD5 andSHA, will generate numerical values sodistinctive that the chance that any twodata sets will have the same hash value, nomatter how similar they appear, is lessthan one in one billion. ‘Hashing’ is usedto guarantee the authenticity of an originaldata set and can be used as a digital

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equivalent of the Bates stamp used in pa-per document production.23’’

Hash values can be inserted into originalelectronic documents when they are createdto provide them with distinctive characteris-tics that will permit their authentication un-der Rule 901(b)(4). Also, they can be usedduring discovery of electronic records to cre-ate a form of electronic ‘‘Bates stamp’’ thatwill help establish the document as electron-ic.24 This underscores a point that counseloften overlook. A party that seeks to intro-duce its own electronic records may have justas much difficulty authenticating them as onethat attempts to introduce the electronic rec-ords of an adversary. Because it is so com-mon for multiple versions of electronic docu-ments to exist, it sometimes is difficult toestablish that the version that is offered intoevidence is the ‘‘final’’ or legally operativeversion. This can plague a party seeking tointroduce a favorable version of its own elec-tronic records, when the adverse party ob-jects that it is not the legally operative ver-sion, given the production in discovery ofmultiple versions. Use of hash values whencreating the ‘‘final’’ or ‘‘legally operative’’version of an electronic record can insertdistinctive characteristics into it that allow itsauthentication under Rule 901(b)(4).

Another way in which electronic evidencemay be authenticated under Rule 901(b)(4) isby examining the metadata for the evidence.Metadata,

‘‘commonly described as ‘data about data,’is defined as ‘information describing thehistory, tracking, or management of anelectronic document.’ Appendix F to TheSedona Guidelines: Best Practice Guide-lines & Commentary for Managing Infor-mation & Records in the Electronic Agedefines metadata as ‘information about aparticular data set which describes how,

when and by whom it was collected, creat-ed, accessed, or modified and how it isformatted (including data demographicssuch as size, location, storage requirementsand media information).’ Technical Ap-pendix E to the Sedona Guidelines pro-vides an extended description of metadata.It further defines metadata to include ‘allof the contextual, processing, and use in-formation needed to identify and certifythe scope, authenticity, and integrity ofactive or archival electronic information orrecords.’ Some examples of metadata forelectronic documents include: a file’sname, a file’s location (e.g., directory struc-ture or pathname), file format or file type,file size, file dates (e.g., creation date, dateof last data modification, date of last dataaccess, and date of last metadata modifica-tion), and file permissions (e.g., who canread the data, who can write to it, who canrun it). Some metadata, such as file datesand sizes, can easily be seen by users;other metadata can be hidden or embed-ded and unavailable to computer users whoare not technically adept.’’

Williams v. Sprint/United Mgmt. Co., 230F.R.D. at 646 (footnote omitted); FederalJudicial Center, Managing Discovery ofElectronic Information: A Pocket Guide forJudges, Federal Judicial Center, 2007 at 24–25 (defining metadata as ‘‘[i]nformation abouta particular data set or document which de-scribes how, when, and by whom the data setor document was collected, created, accessed,or modified TTT’’). Recently revised FederalRule of Civil Procedure 34 permits a party todiscover electronically stored informationand to identify the form or forms in which itis to be produced. A party therefore canrequest production of electronically storedinformation in its ‘‘native format’’, which in-cludes the metadata for the electronic docu-ment.25 Because metadata shows the date,

23. Federal Judicial Center, Managing Discoveryof Electronic Information: A Pocket Guide forJudges, Federal Judicial Center, 2007 at 24; seealso Williams v. Sprint/United Mgmt. Co., 230F.R.D. 640, 655 (D.Kan.2005).

24. See, e.g., United States District Court for theDistrict of Maryland, Suggested Protocol for Dis-covery of Electronically Stored Information 20,http: //www.mdd.uscourts.gov/news/news/ESIProtocol.pdf (last visited April 10, 2007) (en-

couraging parties to discuss use of hash values or‘‘hash marks’’ when producing electronic rec-ords in discovery to facilitate their authentica-tion).

25. United States District Court for the District ofMaryland, Suggested Protocol for Discovery ofElectronically Stored Information 17, http://www.m dd.uscourts.gov/news/news/ESIProto-col.pdf (last visited April 10, 2007) (‘‘When par-ties have agreed or the Court has ordered the

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time and identity of the creator of an elec-tronic record, as well as all changes made toit, metadata is a distinctive characteristic ofall electronic evidence that can be used to au-thenticate it under Rule 901(b)(4). Althoughspecific source code markers that constitutemetadata can provide a useful method of au-thenticating electronically stored evidence,this method is not foolproof because,

‘‘[a]n unauthorized person may be able toobtain access to an unattended computer.Moreover, a document or database locatedon a networked-computer system can beviewed by persons on the network whomay modify it. In addition, many networkcomputer systems usually provide for aselected network administrators to over-ride an individual password identificationnumber to gain access when necessary.’’

WEINSTEIN at § 900.01[4][a]; see also Fen-nell v. First Step Designs, Ltd., 83 F.3d 526,530 (1 st Cir.1996) (discussing how metadatamarkers can reflect that a document wasmodified when in fact it simply was saved toa different location). Despite its lack of con-clusiveness, however, metadata certainly is auseful tool for authenticating electronic rec-ords by use of distinctive characteristics.

Rule 901(b)(7):

This Rule permits authentication by:‘‘Public records or reports. Evidence thata writing authorized by law to be recordedor filed and in fact recorded or filed in apublic office, or a purported public record,report, statement, or data compilation, inany form, is from the public office whereitems of this nature are kept.’’

The commentary to Rule 901(b)(7) recog-nizes that it applies to computerized publicrecords, noting that ‘‘[p]ublic records areregularly authenticated by proof of custody,without more. [Rule 901(b)(7) ] extends theprinciple to include data stored in computersand similar methods, of which increasing usein the public records area may be expected.’’FED.R.EVID. 901(b)(7) advisory committee’snote (citation omitted). To use this rule the

‘‘proponent of the evidence need only showthat the office from which the records weretaken is the legal custodian of the records.’’WEINSTEIN at § 901.10[2]. This may be doneby ‘‘[a] certificate of authenticity from thepublic office; [t]he testimony of an officerwho is authorized to attest to custodianship,[or] the testimony of a witness with knowl-edge that the evidence is in fact from apublic office authorized to keep such a rec-ord.’’ Id. (footnote omitted). Examples ofthe types of public records that may beauthenticated by Rule 901(b)(7) include taxreturns, weather bureau records, militaryrecords, social security records, INS records,VA records, official records from federal,state and local agencies, judicial records, cor-rectional records, law enforcement records,and data compilations, which may includecomputer stored records. Id.

Courts have recognized the appropriate-ness of authenticating computer stored publicrecords under Rule 901(b)(7) as well, andobserved that under this rule, unlike Rule901(b)(9), there is no need to show that thecomputer system producing the public rec-ords was reliable or the records accurate.For example, in United States v. Meienberg,the court rejected defendant’s challenge tothe admissibility of a law enforcement agen-cy’s computerized records. Defendant arguedthat the only way they could be authenticat-ed was under Rule 901(b)(9), through proofthat they were produced by a system orprocess capable of producing a reliable re-sult. Defendant further argued that the rec-ords had not been shown to be accurate.The appellate court disagreed, holding thatthe records properly had been authenticatedunder Rule 901(b)(7), which did not require ashowing of accuracy. The court noted thatany question regarding the accuracy of therecords went to weight rather than admissi-bility. 263 F.3d at 1181. Thus, a decision toauthenticate under Rule 901(b)(7), as op-posed to 901(b)(9) may mean that the re-quired foundation is much easier to prove.

parties to exchange all or some documents aselectronic files in Native File format in connec-tion with discovery, the parties should collectand produce said relevant files in Native Fileformats in a manner that preserves the integrity

of the files, including, but not limited to thecontents of the file, the Meta–Data (includingSystem Meta–Data, Substantive Meta–Data, andEmbedded Meta–DataTTTT’’)).

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This underscores the importance of the pointpreviously made, that there may be multipleways to authenticate a particular computer-ized record, and careful attention to all thepossibilities may reveal a method that signifi-cantly eases the burden of authentication.

Rule 901(b)(9):

This Rule recognizes one method of au-thentication that is particularly useful in au-thenticating electronic evidence stored in orgenerated by computers. It authorizes au-thentication by ‘‘[e]vidence describing a pro-cess or system used to produce a result andshowing that the process or system producesan accurate result.’’ FED.R.EVID. 901(b)(9).This rule was ‘‘designed for situations inwhich the accuracy of a result is dependentupon a process or system which produces it.’’FED.R.EVID. 901(b)(9) advisory committee’snote. See also WEINSTEIN at § 901.12[3]; 26

In re Vee Vinhnee, 336 B.R. at 446 (‘‘Rule901(b)(9), which is designated as an exampleof a satisfactory authentication, describes theappropriate authentication for results of aprocess or system and contemplates evidencedescribing the process or system used toachieve a result and demonstration that theresult is accurate. The advisory committeenote makes plain that Rule 901(b)(9) wasdesigned to encompass computer-generatedevidence TTT’’).27

Rule 902:

In addition to the non-exclusive methods ofauthentication identified in Rule 901(b), Rule

902 identifies twelve methods by which docu-ments, including electronic ones, may be au-thenticated without extrinsic evidence. Thisis commonly referred to as ‘‘self-authentica-tion.’’ The rule states:

‘‘Extrinsic evidence of authenticity as acondition precedent to admissibility is notrequired with respect to the following:(1) Domestic public documents under seal.A document bearing a seal purporting tobe that of the United States, or of anyState, district, Commonwealth, territory,or insular possession thereof, or the Pana-ma Canal Zone, or the Trust Territory ofthe Pacific Islands, or of a political subdivi-sion, department, officer, or agency there-of, and a signature purporting to be anattestation or execution.(2) Domestic public documents not underseal. A document purporting to bear thesignature in the official capacity of an offi-cer or employee of any entity included inparagraph (1) hereof, having no seal, if apublic officer having a seal and havingofficial duties in the district or politicalsubdivision of the officer or employee certi-fies under seal that the signer has theofficial capacity and that the signature isgenuine.(3) Foreign public documents. A docu-ment purporting to be executed or attestedin an official capacity by a person author-ized by the laws of a foreign country tomake the execution or attestation, and ac-companied by a final certification as to the

26. ‘‘Computer output may be authenticated un-der Rule 901(b)(9)TTTT When the proponent re-lies on the provisions of Rule 901(b)(9) instead ofqualifying the computer-generated informationfor a hearsay exception, it is common for theproponent to provide evidence of the input pro-cedures and their accuracy, and evidence thatthe computer was regularly tested for program-ming errors. At a minimum, the proponentshould present evidence sufficient to warrant afinding that the information is trustworthy andprovide the opponent with an opportunity toinquire into the accuracy of the computer and ofthe input procedures.’’

27. In Vinhnee, the court cited with approval aneleven-step foundational authentication for com-puter records advocated by one respected aca-demic. Id. (citing EDWARD J. IMWINKELRIED, EVIDEN-

TIARY FOUNDATIONS 58–59 (LexisNexis 6thed.2005)). Although this foundation is elaborate,and many courts might not be so demanding as

to require that it be followed to authenticatecomputer generated records, the fact that onecourt already has done so should put prudentcounsel on notice that they must pay attention tohow they will authenticate computer generatedrecords, and that they should be prepared to doso in a manner that complies with the FederalRules of Evidence and any governing precedent.The price for failing to do so may be, as in In reVee Vinhnee, exclusion of the exhibit. See, e.g.,Indianapolis Minority Contractors Ass’n, Inc. v.Wiley, 1998 WL 1988826, at *7 (S.D.Ind. May 13,1998) (‘‘[A]s a condition precedent to admissibili-ty of computer records, the proponent must es-tablish that the process or system used producesan accurate result, FED.R.EVID. 901(b)(9), and thatfoundation has not been established. In light ofthe above, the veracity and reliability of thesereports are questionable, and thus [the summaryjudgment exhibit] will be stricken’’).

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genuineness of the signature and officialposition (A) of the executing or attestingperson, or (B) of any foreign official whosecertificate of genuineness of signature andofficial position relates to the execution orattestation or is in a chain of certificates ofgenuineness of signature and official posi-tion relating to the execution or attesta-tion. A final certification may be made bya secretary of an embassy or legation,consul general, consul, vice consul, or con-sular agent of the United States, or adiplomatic or consular official of the for-eign country assigned or accredited to theUnited States. If reasonable opportunityhas been given to all parties to investigatethe authenticity and accuracy of officialdocuments, the court may, for good causeshown, order that they be treated as pre-sumptively authentic without final certifi-cation or permit them to be evidenced byan attested summary with or without finalcertification.

(4) Certified copies of public records. Acopy of an official record or report or entrytherein, or of a document authorized bylaw to be recorded or filed and actuallyrecorded or filed in a public office, includ-ing data compilations in any form, certifiedas correct by the custodian or other personauthorized to make the certification, bycertificate complying with paragraph (1),(2), or (3) of this rule or complying withany Act of Congress or rule prescribed bythe Supreme Court pursuant to statutoryauthority.

(5) Official publications. Books, pam-phlets, or other publications purporting tobe issued by public authority.

(6) Newspapers and periodicals. Printedmaterials purporting to be newspapers orperiodicals.

(7) Trade inscriptions and the like. In-scriptions, signs, tags, or labels purportingto have been affixed in the course of busi-ness and indicating ownership, control, ororigin.

(8) Acknowledged documents. Documentsaccompanied by a certificate of acknowl-edgment executed in the manner providedby law by a notary public or other officer

authorized by law to take acknowledg-ments.

(9) Commercial paper and related docu-ments. Commercial paper, signaturesthereon, and documents relating thereto tothe extent provided by general commerciallaw.

(10) Presumptions under Acts of Con-gress. Any signature, document, or othermatter declared by Act of Congress to bepresumptively or prima facie genuine orauthentic.

(11) Certified domestic records of regular-ly conducted activity. The original or aduplicate of a domestic record of regularlyconducted activity that would be admissi-ble under Rule 803(6) if accompanied by awritten declaration of its custodian or oth-er qualified person, in a manner complyingwith any Act of Congress or rule pre-scribed by the Supreme Court pursuant tostatutory authority, certifying that the rec-ord:

(A) was made at or near the time of theoccurrence of the matters set forth by, orfrom information transmitted by, a personwith knowledge of those matters;

(B) was kept in the course of the regularlyconducted activity; and

(C) was made by the regularly conductedactivity as a regular practice.

A party intending to offer a record intoevidence under this paragraph must pro-vide written notice of that intention to alladverse parties, and must make the recordand declaration available for inspectionsufficiently in advance of their offer intoevidence to provide an adverse party witha fair opportunity to challenge them.

(12) Certified foreign records of regularlyconducted activity. In a civil case, theoriginal or a duplicate of a foreign recordof regularly conducted activity that wouldbe admissible under Rule 803(6) if accom-panied by a written declaration by its cus-todian or other qualified person certifyingthat the record:

(A) was made at or near the time of theoccurrence of the matters set forth by, orfrom information transmitted by, a personwith knowledge of those matters;

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(B) was kept in the course of the regularlyconducted activity; and

(C) was made by the regularly conductedactivity as a regular practice.

The declaration must be signed in a man-ner that, if falsely made, would subject themaker to criminal penalty under the lawsof the country where the declaration issigned. A party intending to offer a rec-ord into evidence under this paragraphmust provide written notice of that inten-tion to all adverse parties, and must makethe record and declaration available forinspection sufficiently in advance of theiroffer into evidence to provide an adverseparty with a fair opportunity to challengethem.’’

The obvious advantage of Rule 902 is that itdoes not require the sponsoring testimony ofany witness to authenticate the exhibit—itsadmissibility is determined simply by exam-ining the evidence itself, along with any ac-companying written declaration or certificaterequired by Rule 902. The mere fact thatthe rule permits self-authentication, however,does not foreclose the opposing party fromchallenging the authenticity. Because Rule104(b) applies in such cases, the exhibit andthe evidence challenging its authenticity goesto the jury, which ultimately determineswhether it is authentic. FED.R.EVID. 902 ad-visory committee’s note. Some of the exam-ples contained in Rule 902, such as Rule902(3) (foreign public documents), 902(4)(certified copies of public records), 902(8)(acknowledged documents), 902(11) (certifiedcopies of domestic records of a regularlyconducted activity), and 902(12) (certified for-eign records of regularly conducted activity),do require a certificate signed by a custodianor other qualified person to accomplish theself-authentication.

Although all of the examples contained inRule 902 could be applicable to computerizedrecords, three in particular have been recog-nized by the courts to authenticate electronicevidence: 902(5) (official publications); 902(7)(trade inscriptions); and, 902(11) (certifieddomestic records of regularly conducted ac-tivity). The first, Rule 902(5), provides:

‘‘(5) Official publications. Books, pam-phlets, or other publications purporting tobe issued by public authority.’’

The rule ‘‘[dispenses] with preliminary proofof the genuineness of purportedly officialpublications TTTT [but] does not confer ad-missibility upon all official publications; itmerely provides a means whereby their au-thenticity may be taken as established forpurposes of admissibility.’’ FED.R.EVID.

902(5) advisory committee’s note. Thismeans that, to be admissible, the proponentmay also need to establish that the officialrecord qualifies as a public record hearsayexception under Rule 803(8). WEINSTEIN at§ 902.02[2]. Although the rule is silent re-garding the level of government that mustauthorize the publication, commentators sug-gest that the list includes the United States,any State, district, commonwealth, territoryor insular possession of the United States,the Panama Canal Zone, the Trust Territoryof the Pacific islands, or a political subdivi-sion, department, officer, or agency of any ofthe foregoing. Id.

In Equal Employment Opportunity Com-mission v. E.I. DuPont de Nemours and Co.,the court admitted into evidence printouts ofpostings on the website of the United StatesCensus Bureau as self-authenticating underRule 902(5). 2004 WL 2347556 (E.D.La.Oct.18, 2004). Given the frequency withwhich official publications from governmentagencies are relevant to litigation and theincreasing tendency for such agencies tohave their own websites, Rule 902(5) pro-vides a very useful method of authenticatingthese publications. When combined with thepublic records exception to the hearsay rule,Rule 803(8), these official publications postedon government agency websites should beadmitted into evidence easily.

Rule 902(7) provides that exhibits may beself-authenticated by ‘‘[i]nscriptions, signs,tags, or labels purporting to have been af-fixed in the course of business and indicatingownership, control, or origin.’’ As one com-mentator has noted, ‘‘[u]nder Rule 902(7),labels or tags affixed in the course of busi-ness require no authentication. Business e-mails often contain information showing theorigin of the transmission and identifying the

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employer-company. The identification mark-er alone may be sufficient to authenticate ane-mail under Rule 902(7).’’ WEINSTEIN at§ 900.07[3][c].

Rule 902(11) also is extremely useful be-cause it affords a means of authenticatingbusiness records under Rule 803(6), one ofthe most used hearsay exceptions, withoutthe need for a witness to testify in person attrial. It provides:

‘‘(11) Certified domestic records of regu-larly conducted activity. The original or aduplicate of a domestic record of regularlyconducted activity that would be admissi-ble under Rule 803(6) if accompanied by awritten declaration of its custodian or oth-er qualified person, in a manner complyingwith any Act of Congress or rule pre-scribed by the Supreme Court pursuant tostatutory authority, certifying that the rec-ord:(A) was made at or near the time of theoccurrence of the matters set forth by, orfrom information transmitted by, a personwith knowledge of those matters;(B) was kept in the course of the regularlyconducted activity; and(C) was made by the regularly conductedactivity as a regular practice.A party intending to offer a record intoevidence under this paragraph must pro-vide written notice of that intention to alladverse parties, and must make the recordand declaration available for inspectionsufficiently in advance of their offer intoevidence to provide an adverse party witha fair opportunity to challenge them.’’

This rule was added in the 2000 amendmentsto the Federal Rules of Evidence, and it wasintended to ‘‘[set] forth a procedure by whichparties can authenticate certain records ofregularly conducted activity, other thanthrough the testimony of a foundation wit-ness.’’ FED.R.EVID. 902(11) advisory commit-tee’s note. Unlike most of the other authen-tication rules, Rule 902(11) also contains anotice provision, requiring the proponent toprovide written notice of the intention to usethe rule to all adverse parties and to make

available to them the records sufficiently inadvance of litigation to permit a fair opportu-nity to challenge them. WEINSTEIN at§ 902.13[2]. Because compliance with Rule902(11) requires the proponent to establishall the elements of the business record excep-tion to the hearsay rule, Rule 803(6), courtsusually analyze the authenticity issue underRule 902(11) concomitantly with the businessrecord hearsay exception.28 Rambus, 348F.Supp.2d at 701 (‘‘Thus, the most appropri-ate way to view Rule 902(11) is as the func-tional equivalent of testimony offered to au-thenticate a business record tendered underRule 803(6) because the declaration permit-ted by Rule 902(11) serves the same purposeas authenticating testimony TTT [B]ecauseRule 902[11] contains the same requirements,and almost the same wording, as Rule 803(6),decisions explaining the parallel provisions ofRule 803(6) are helpful in resolving the issueshere presented.’’); In re Vee Vinhnee, 336B.R. at 444 (stating that in deciding whetherto admit business records, the authenticityanalysis is merged into the business recordanalysis).

Finally, as noted at the beginning of thisdiscussion regarding the authenticating elec-tronic records, Rule 901(b) makes clear thatthe ten examples listed are illustrative only,not exhaustive. In ruling on whether elec-tronic evidence has been properly authenti-cated, courts have been willing to think ‘‘out-side of the box’’ to recognize new ways ofauthentication. For example, they have heldthat documents provided to a party duringdiscovery by an opposing party are presumedto be authentic, shifting the burden to theproducing party to demonstrate that the evi-dence that they produced was not authentic.Indianapolis Minority Contractors Ass’n,1998 WL 1988826, at *6 (‘‘The act of produc-tion is an implicit authentication of docu-ments producedTTTT Federal Rule of Evi-dence 901 provides that ‘[t]he requirement ofauthentication or identification as a conditionprecedent to admissibility is satisfied by evi-dence sufficient to support a finding that thematter in question is what its proponentclaims. Defendants admit that they did pro-duce [the exhibits at issue]TTTT Thus TTT the

28. Because the business record exception will bediscussed at some length below, the analysis of

the requirements of Rule 902(11) will be deferreduntil that discussion.

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Defendants cannot have it both ways. Theycannot voluntarily produce documents andimplicitly represent their authenticity andthen contend they cannot be used by thePlaintiffs because the authenticity is lacking.’’(citation omitted)); Perfect 10, 213 F.Supp.2dat 1153–54 (finding that exhibits of websitepostings had been properly authenticated forthree reasons, including that certain of themhad been provided to the plaintiff by thedefendant during discovery).

In Telewizja Polska USA, the court em-braced a non-traditional method of authenti-cation when faced with determining whetherexhibits depicting the content of the defen-dant’s website at various dates several yearsin the past were admissible. 2004 WL2367740. The plaintiff offered an affidavitfrom a representative of the Internet ArchiveCompany, which retrieved copies of the de-fendant’s website as it appeared at relevantdates to the litigation though use of its ‘‘way-back machine.’’ 29 The defendant objected,contending that the Internet Archive was nota reliable source, and thus the exhibits hadnot been authenticated. The court disa-greed, stating:

‘‘Federal Rule of Evidence 901 ‘requiresonly a prima facie showing of genuinenessand leaves it to the jury to decide the trueauthenticity and probative value of the evi-dence.’ Admittedly, the Internet Archivedoes not fit neatly into any of the non-exhaustive examples listed in Rule 901;the Internet Archive is a relatively newsource for archiving websites. Neverthe-less, Plaintiff has presented no evidencethat the Internet Archive is unreliable orbiased. And Plaintiff has neither deniedthat the exhibit represents the contents ofits website on the dates in question, norcome forward with its own evidence chal-lenging the veracity of the exhibit. Underthese circumstances, the Court is of theopinion that [the affidavit from the repre-sentative of the Internet Archive Compa-ny] is sufficient to satisfy Rule 901’sthreshold requirement for admissibility.’’

Id. at *6.Additionally, authentication may be accom-

plished by the court taking judicial notice

under Rule 201 of certain foundational factsneeded to authenticate an electronic record.Under this rule, the parties may request thecourt to take judicial notice of adjudicativefacts that are either (1) generally knownwithin the territorial jurisdiction of the trialcourt, or (2) capable of accurate and readydetermination by resort to sources whoseaccuracy cannot reasonably be questioned.FED.R.EVID. 201(b); WEINSTEIN at§ 201.12[1]. Judicial notice could be a helpfulway to establish certain well known charac-teristics of computers, how the internetworks, scientific principles underlying calcu-lations performed within computer programs,and many similar facts that could facilitateauthenticating electronic evidence.

Authentication also can be accomplished incivil cases by taking advantage of FED.

R.CIV.P. 36, which permits a party to requestthat his or her opponent admit the ‘‘genuine-ness of documents.’’ Also, at a pretrial con-ference, pursuant to FED.R.CIV.P. 16(c)(3), aparty may request that an opposing partyagree to stipulate ‘‘regarding the authenticityof documents,’’ and the court may take ‘‘ap-propriate action’’ regarding that request.Similarly, if a party properly makes his orher FED. R. CIV. P. 26(a)(3) pretrial disclo-sures of documents and exhibits, then theother side has fourteen days in which to fileobjections. Failure to do so waives all objec-tions other than under Rules 402 or 403,unless the court excuses the waiver for goodcause. This means that if the opposing partydoes not raise authenticity objections withinthe fourteen days, they are waived.

The above discussion underscores the needfor counsel to be creative in identifying meth-ods of authenticating electronic evidencewhen the facts support a conclusion that theevidence is reliable, accurate, and authentic,regardless of whether there is a particularexample in Rules 901 and 902 that neatly fits.

Finally, any serious consideration of therequirement to authenticate electronic evi-dence needs to acknowledge that, given the

29. The ‘‘wayback machine’’ refers to the processused by the Internet Archive Company, www.archive.org, to allow website visitors to search

for archived web pages of organizations. St.Luke’s, 2006 WL 1320242 at *1.

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wide diversity of such evidence, there is nosingle approach to authentication that willwork in all instances. It is possible, howev-er, to identify certain authentication issuesthat have been noted by courts and com-mentators with particular types of electronicevidence and to be forearmed with thisknowledge to develop authenticating factsthat address these concerns.E-mail

There is no form of ESI more ubiquitousthan e-mail, and it is the category of ESI atissue in this case. Although courts todayhave more or less resigned themselves to thefact that ‘‘[w]e live in an age of technologyand computer use where e-mail communica-tion now is a normal and frequent fact for themajority of this nation’s population, and is ofparticular importance in the professionalworld,’’ Safavian, 435 F.Supp.2d at 41, it wasnot very long ago that they took a contraryview—‘‘[e]-mail is far less of a systematicbusiness activity than a monthly inventoryprintout.’’ Monotype Corp. PLC v. Int’lTypeface, 43 F.3d 443, 450 (9th Cir.1994)(affirming trial court’s exclusion of e-mail asinadmissible as a business record). Perhapsbecause of the spontaneity and informality ofe-mail, people tend to reveal more of them-selves, for better or worse, than in othermore deliberative forms of written communi-cation. For that reason, e-mail evidence of-ten figures prominently in cases where stateof mind, motive and intent must be proved.Indeed, it is not unusual to see a case con-sisting almost entirely of e-mail evidence.See, e.g., Safavian, 435 F.Supp.2d 36.

Not surprisingly, there are many ways inwhich e-mail evidence may be authenticated.One well respected commentator has ob-served:

‘‘[E]-mail messages may be authenticatedby direct or circumstantial evidence. Ane-mail message’s distinctive characteristics,including its ‘contents, substance, internalpatterns, or other distinctive characteris-tics, taken in conjunction with circum-stances’ may be sufficient for authentica-tion.Printouts of e-mail messages ordinarilybear the sender’s e-mail address, providingcircumstantial evidence that the message

was transmitted by the person identified inthe e-mail address. In responding to an e-mail message, the person receiving themessage may transmit the reply using thecomputer’s reply function, which automati-cally routes the message to the addressfrom which the original message came.Use of the reply function indicates that thereply message was sent to the sender’slisted e-mail address.

The contents of the e-mail may help showauthentication by revealing details knownonly to the sender and the person receiv-ing the message.

E-mails may even be self-authenticating.Under Rule 902(7), labels or tags affixedin the course of business require no au-thentication. Business e-mails often con-tain information showing the origin of thetransmission and identifying the employer-company. The identification marker alonemay be sufficient to authenticate an e-mailunder Rule 902(7). However, the sendingaddress in an e-mail message is not con-clusive, since e-mail messages can be sentby persons other than the named sender.For example, a person with unauthorizedaccess to a computer can transmit e-mailmessages under the computer owner’sname. Because of the potential for unau-thorized transmission of e-mail messages,authentication requires testimony from aperson with personal knowledge of thetransmission or receipt to ensure its trust-worthiness.’’

WEINSTEIN at § 900.07[3][c]; see also ED-

WARD J. IMWINKELRIED, EVIDENTIARY FOUNDA-

TIONS § 4.03[4][b] (LexisNexis 6thed.2005)(hereinafter ‘‘IMWINKELRIED, EVIDEN-

TIARY FOUNDATIONS.’’) Courts also have ap-proved the authentication of e-mail by theabove described methods. See, e.g., Siddi-qui, 235 F.3d at 1322–23 (E-mail may beauthenticated entirely by circumstantial evi-dence, including its distinctive characteris-tics); Safavian, 435 F.Supp.2d at 40 (recog-nizing that e-mail may be authenticated bydistinctive characteristics 901(b)(4), or bycomparison of exemplars with other e-mailsthat already have been authenticated901(b)(3)); Rambus, 348 F.Supp.2d 698 (E-mail that qualifies as business record may be

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self-authenticating under 902(11)); In reF.P., 878 A.2d at 94 (E-mail may be authenti-cated by direct or circumstantial evidence).

The most frequent ways to authenticate e-mail evidence are 901(b)(1) (person with per-sonal knowledge), 901(b)(3) (expert testimonyor comparison with authenticated exemplar),901(b)(4) (distinctive characteristics, includ-ing circumstantial evidence), 902(7) (trade in-scriptions), and 902(11) (certified copies ofbusiness record).Internet Website Postings

Courts often have been faced with deter-mining the admissibility of exhibits contain-ing representations of the contents of websitepostings of a party at some point relevant tothe litigation. Their reaction has rangedfrom the famous skepticism expressed in St.Clair v. Johnny’s Oyster and Shrimp, Inc. 76F.Supp.2d 773 (S.D.Tex.1999),30 to more per-missive approach taken in Perfect 10, 213F.Supp.2d at 1153–54.31

The issues that have concerned courts in-clude the possibility that third persons otherthan the sponsor of the website were respon-sible for the content of the postings, leadingmany to require proof by the proponent thatthe organization hosting the website actuallyposted the statements or authorized theirposting. See United States v. Jackson, 208F.3d 633, 638 (7th Cir.2000) (excluding evi-

dence of website postings because proponentfailed to show that sponsoring organizationactually posted the statements, as opposed toa third party); St. Luke’s, 2006 WL 1320242(plaintiff failed to authenticate exhibits ofdefendant’s website postings because affida-vits used to authenticate the exhibits werefactually inaccurate and the author lackedpersonal knowledge of the website); Wady,216 F.Supp.2d 1060. One commentator hasobserved ‘‘[i]n applying [the authenticationstandard] to website evidence, there arethree questions that must be answered ex-plicitly or implicitly. (1) What was actuallyon the website? (2) Does the exhibit ortestimony accurately reflect it? (3) If so, is itattributable to the owner of the site?’’ 32 Thesame author suggests that the following fac-tors will influence courts in ruling whether toadmit evidence of internet postings:

‘‘The length of time the data was posted onthe site; whether others report havingseen it; whether it remains on the websitefor the court to verify; whether the data isof a type ordinarily posted on that websiteor websites of similar entities (e.g. financialinformation from corporations); whetherthe owner of the site has elsewhere pub-lished the same data, in whole or in part;whether others have published the samedata, in whole or in part; whether the data

30. There, the court stated that,

‘‘Plaintiff’s electronic ‘evidence’ is totally insuf-ficient to withstand Defendant’s Motion to Dis-miss. While some look to the Internet as aninnovative vehicle for communication, theCourt continues to warily and wearily view itlargely as one large catalyst for rumor, innuen-do, and misinformation. So as to not mincewords, the Court reiterates that this so-calledWeb provides no way of verifying the authen-ticity of the alleged contentions that Plaintiffwishes to rely upon in his Response to Defen-dant’s Motion. There is no way Plaintiff canovercome the presumption that the informa-tion he discovered on the Internet is inherentlyuntrustworthy. Anyone can put anything onthe Internet. No web-site is monitored foraccuracy and nothing contained therein is un-der oath or even subject to independent verifi-cation absent underlying documentation.Moreover, the Court holds no illusions thathackers can adulterate the content on any web-site from any location at any time. For thesereasons, any evidence procured off the Internetis adequate for almost nothing, even under themost liberal interpretation of the hearsay ex-

ception rules found in FED.R.EVID. 807. In-stead of relying on the voodoo informationtaken from the Internet, Plaintiff must hunt forhard copy back-up documentation in admissi-ble form from the United States Coast Guardor discover alternative information verifyingwhat Plaintiff alleges.’’

Id. at 774–775.

31. The court noted that a ‘‘reduced evidentiarystandard’’ applied to the authentication of exhib-its purporting to depict the defendant’s websitepostings during a preliminary injunction motion.The court found that the exhibits had been au-thenticated because of circumstantial indicia ofauthenticity, a failure of the defendant to denytheir authenticity, and the fact that the exhibitshad been produced in discovery by the defen-dant. The court declined to require proof thatthe postings had been done by the defendant orwith its authority, or evidence to disprove thepossibility that the contents had been altered bythird parties.

32. Joseph at 21; see also SALTZBURG at§ 901.02[12].

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has been republished by others who identi-fy the source of the data as the website inquestion? 33’’

Counsel attempting to authenticate exhibitscontaining information from internet web-sites need to address these concerns in decid-ing what method of authentication to use,and the facts to include in the foundation.The authentication rules most likely to apply,singly or in combination, are 901(b)(1) (wit-ness with personal knowledge) 901(b)(3) (ex-pert testimony) 901(b)(4) (distinctive charac-teristics), 901(b)(7) (public records), 901(b)(9)(system or process capable of producing areliable result), and 902(5) (official publica-tions).

Text Messages and Chat Room Content

Many of the same foundational issuesfound encountered when authenticating web-site evidence apply with equal force to textmessages and internet chat room content;however, the fact that chat room messagesare posted by third parties, often using‘‘screen names’’ means that it cannot be as-sumed that the content found in chat roomswas posted with the knowledge or authorityof the website host. SALTZBURG at§ 901.02[12]. One commentator has suggest-ed that the following foundational require-ments must be met to authenticate chat roomevidence:

‘‘(1) [e]vidence that the individual used thescreen name in question when participat-ing in chat room conversations (either gen-erally or at the site in question);(2) [e]vidence that, when a meeting withthe person using the screen name wasarranged, the individual TTT showed up;(3) [e]vidence that the person using thescreen name identified [himself] as the[person in the chat room conversation];evidence that the individual had in [his]possession information given to the personusing the screen name; (5) [and][e]videncefrom the hard drive of the individual’scomputer [showing use of the same screenname].’’

Id. at § 901.02[12]. Courts also have recog-nized that exhibits of chat room conversa-tions may be authenticated circumstantially.

For example, in In re F.P., the defendantargued that the testimony of the internetservice provider was required, or that of aforensic expert. 878 A.2d at 93–94. Thecourt held that circumstantial evidence, suchas the use of the defendant’s screen name inthe text message, the use of the defendant’sfirst name, and the subject matter of themessages all could authenticate the tran-scripts. Id. Similarly, in United States v.Simpson, the court held that there was am-ple circumstantial evidence to authenticateprintouts of the content of chat room discus-sions between the defendant and an under-cover detective, including use of the e-mailname of the defendant, the presence of thedefendant’s correct address in the messages,and notes seized at the defendant’s homecontaining the address, e-mail address andtelephone number given by the undercoverofficer. 152 F.3d at 1249. Likewise, inUnited States v. Tank, the court found suffi-cient circumstantial facts to authenticate chatroom conversations, despite the fact that cer-tain portions of the text of the messages inwhich the defendant had participated hadbeen deleted. 200 F.3d at 629–31. There,the court found the testimony regarding thelimited nature of the deletions by the mem-ber of the chat room club who had made thedeletions, circumstantial evidence connectingthe defendant to the chat room, including theuse of the defendant’s screen name in themessages, were sufficient to authenticate themessages. Id. at 631. Based on the forego-ing cases, the rules most likely to be used toauthenticate chat room and text messages,alone or in combination, appear to be901(b)(1) (witness with personal knowledge)and 901(b)(4) (circumstantial evidence of dis-tinctive characteristics).

Computer Stored Records and Data

Given the widespread use of computers,there is an almost limitless variety of recordsthat are stored in or generated by comput-ers. As one commentator has observed‘‘[m]any kinds of computer records and com-puter-generated information are introducedas real evidence or used as litigation aids attrials. They range from computer printouts

33. Id. at 22.

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of stored digital data to complex computer-generated models performing complicatedcomputations. Each may raise different ad-missibility issues concerning authenticationand other foundational requirements.’’WEINSTEIN at § 900.06[3]. The least complexadmissibility issues are associated with elec-tronically stored records. ‘‘In general, elec-tronic documents or records that are merelystored in a computer raise no computer-specific authentication issues.’’ WEINSTEIN

at § 900.06[3]. That said, although computerrecords are the easiest to authenticate, thereis growing recognition that more care is re-quired to authenticate these electronic rec-ords than traditional ‘‘hard copy’’ records.MANUAL FOR COMPLEX LITIGATION at§ 11.447; 34 see also IMWINKELRIED, EVIDEN-

TIARY FOUNDATIONS at 4.03[2].35

Two cases illustrate the contrast betweenthe more lenient approach to admissibility ofcomputer records and the more demandingone. In United States v. Meienberg, thedefendant challenged on appeal the admis-sion into evidence of printouts of computer-ized records of the Colorado Bureau of In-vestigation, arguing that they had not beenauthenticated because the government hadfailed to introduce any evidence to demon-strate the accuracy of the records. 263 F.3dat 1180–81. The Tenth Circuit disagreed,stating:

‘‘Any question as to the accuracy of theprintouts, whether resulting from incorrectdata entry or the operation of the comput-er program, as with inaccuracies in anyother type of business records, would have

affected only the weight of the printouts,not their admissibility.’’

Id. at 1181 (citation omitted). See also Kas-simu, 2006 WL 1880335 (To authenticatecomputer records as business records did notrequire the maker, or even a custodian of therecord, only a witness qualified to explain therecord keeping system of the organization toconfirm that the requirements of Rule 803(6)had been met, and the inability of a witnessto attest to the accuracy of the informationentered into the computer did not precludeadmissibility); Sea–Land Serv., Inc. v. LozenInt’l, 285 F.3d 808 (9th Cir.2002) (ruling thattrial court properly considered electronicallygenerated bill of lading as an exhibit to asummary judgment motion. The only foun-dation that was required was that the recordwas produced from the same electronic infor-mation that was generated contemporaneous-ly when the parties entered into their con-tact. The court did not require evidence thatthe records were reliable or accurate).

In contrast, in the case of In re Vee Vinhn-ee, the bankruptcy appellate panel upheld thetrial ruling of a bankruptcy judge excludingelectronic business records of the credit cardissuer of a Chapter 7 debtor, for failing toauthenticate them. 336 B.R. 437. The courtnoted that ‘‘it is becoming recognized thatearly versions of computer foundations weretoo cursory, even though the basic elementscovered the ground.’’ Id. at 445–46. Thecourt further observed that:

‘‘The primary authenticity issue in the con-text of business records is on what has, ormay have, happened to the record in theinterval between when it was placed in the

34. ‘‘Computerized data’’, however, raise uniqueissues concerning accuracy and authenticity.Accuracy may be impaired by incomplete dataentry, mistakes in output instructions, program-ming errors, damage and contamination of stor-age media, power outages, and equipment mal-functions. The integrity of data may also becompromised in the course of discovery by im-proper search and retrieval techniques, data con-version, or mishandling. The proponent of com-puterized evidence has the burden of laying aproper foundation by establishing its accuracy.

‘‘The judge should therefore consider the accu-racy and reliability of computerized evi-denceTTTT’’

35. ‘‘In the past, many courts have been lax inapplying the authentication requirement to com-

puter records; they have been content with foun-dational evidence that the business has success-fully used the computer system in question andthat the witness recognizes the record as outputfrom the computer. However, following the rec-ommendations of the Federal Judicial Center’sManual for Complex Litigation, some courts nowrequire more extensive foundation. These courtsrequire the proponent to authenticate a comput-er record by proving the reliability of the particu-lar computer used, the dependability of the busi-ness’s input procedures for the computer, the useof proper procedures to obtain the documentoffered in court, and the witness’s recognition ofthat document as the readout from the comput-er.’’ (citation omitted).

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files and the time of trial. In other words,the record being proffered must be shownto continue to be an accurate representa-tion of the record that originally was creat-edTTTT Hence, the focus is not on thecircumstances of the creation of the record,but rather on the circumstances of thepreservation of the record during the timeit is in the file so as to assure that thedocument being proffered is the same asthe document that originally was created.’’

Id. at 444. The court reasoned that, forpaperless electronic records:

‘‘The logical questions extend beyond theidentification of the particular computerequipment and programs used. The enti-ty’s policies and procedures for the use ofthe equipment, database, and programsare important. How access to the perti-nent database is controlled and, separately,how access to the specific program is con-trolled are important questions. Howchanges in the database are logged orrecorded, as well as the structure and im-plementation of backup systems and auditprocedures for assuring the continuing in-tegrity of the database, are pertinent tothe question of whether records have beenchanged since their creation.’’

Id. at 445. In order to meet the heighteneddemands for authenticating electronic busi-ness records, the court adopted, with somemodification, an eleven-step foundation pro-posed by Professor Edward Imwinkelried: 36

Professor Imwinkelried perceives electron-ic records as a form of scientific evidence anddiscerns an eleven-step foundation for com-puter records:

‘‘1. The business uses a computer.2. The computer is reliable.3. The business has developed a proce-dure for inserting data into the computer.4. The procedure has built-in safeguardsto ensure accuracy and identify errors.5. The business keeps the computer in agood state of repair.

6. The witness had the computer readoutcertain data.7. The witness used the proper proce-dures to obtain the readout.8. The computer was in working order atthe time the witness obtained the readout.9. The witness recognizes the exhibit asthe readout.10. The witness explains how he or sherecognizes the readout.11. If the readout contains strange sym-bols or terms, the witness explains themeaning of the symbols or terms for thetrier of fact.’’

Id. at 446–47 (citation omitted). Althoughthe position taken by the court in In re VeeVinhnee appears to be the most demandingrequirement for authenticating computerstored records, other courts also have recog-nized a need to demonstrate the accuracy ofthese records. See, e.g., State v. Dunn, 7S.W.3d 427, 432 (Mo.Ct.App.2000) (Admissi-bility of computer-generated records ‘‘shouldbe determined on the basis of the reliabilityand accuracy of the process involved.’’);State v. Hall, 976 S.W.2d 121, 147 (Tenn.1998) (‘‘[T]he admissibility of the computertracing system record should be measured bythe reliability of the system, itself, relative toits proper functioning and accuracy.’’).37

As the foregoing cases illustrate, there is awide disparity between the most lenient posi-tions courts have taken in accepting electron-ic records as authentic and the most demand-ing requirements that have been imposed.Further, it would not be surprising to findthat, to date, more courts have tended to-wards the lenient rather than the demandingapproach. However, it also is plain thatcommentators and courts increasingly recog-nize the special characteristics of electroni-cally stored records, and there appears to bea growing awareness, as expressed in theManual for Complex Litigation,38 that courts‘‘should TTT consider the accuracy and relia-bility of computerized evidence’’ in ruling on

36. IMWINKELRIED, EVIDENTIARY FOUNDATIONS at§ 4.03[2].

37. In addition to their insight regarding the au-thentication of electronic records, these cases arealso important in connection to the analysis of

whether certain types of electronically storedrecords constitute hearsay when offered for theirsubstantive truth.

38. MANUAL FOR COMPLEX LITIGATION at § 11.446.

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its admissibility. Lawyers can expect to en-counter judges in both camps, and in theabsence of controlling precedent in the courtwhere an action is pending setting forth thefoundational requirements for computer rec-ords, there is uncertainty about which ap-proach will be required. Further, although‘‘it may be better to be lucky than good,’’ asthe saying goes, counsel would be wise not totest their luck unnecessarily. If it is criticalto the success of your case to admit intoevidence computer stored records, it wouldbe prudent to plan to authenticate the recordby the most rigorous standard that may beapplied. If less is required, then luck waswith you.

The methods of authentication most likelyto be appropriate for computerized recordsare 901(b)(1) (witness with personal knowl-edge), 901(b)(3) (expert testimony), 901(b)(4)(distinctive characteristics), and 901(b)(9)(system or process capable of producing areliable result).Computer Animation and Computer Sim-ulations.

Two similar, although distinct, forms ofcomputer generated evidence also raiseunique authentication issues. The first iscomputer animation, ‘‘the display of a se-quence of computer-generated images.’’ IM-

WINKELRIED, EVIDENTIARY FOUNDATIONS at§ 4.09[4][a]. The attraction of this form ofevidence is irresistible, because:

‘‘when there is no movie or video of theevent being litigated, a computer anima-tion is a superior method of communicatingthe relevant information to the trier offact. Absent a movie or video, the propo-nent might have to rely on static charts ororal testimony to convey a large amount ofcomplex information to the trier of fact.When the proponent relies solely on oralexpert testimony, the details may be pre-sented one at a time; but an animation canpiece all the details together for the jury.A computer animation in effect condensesthe information into a single evidentiarypackage. In part due to television, thetypical American is a primarily visuallearner; and for that reason, in the shortterm, many jurors find the animation moreunderstandable than charts or oral testi-

mony. Use of an animation can also signifi-cantly increase long-term juror retentionof the information.’’

Id. at § 4.09[4][a]. The second form of com-puter generated evidence is a computer sim-ulation. The distinction between them hasbeen explained usefully as follows:

‘‘Computer generated evidence is an in-creasingly common form of demonstrativeevidence. If the purpose of the computerevidence is to illustrate and explain a wit-ness’s testimony, courts usually refer tothe evidence as an animation. In contrast,a simulation is based on scientific or physi-cal principles and data entered into a com-puter, which is programmed to analyze thedata and draw a conclusion from it, andcourts generally require proof to show thevalidity of the science before the sim-ulation evidence is admitted.’’Thus, the classification of a computer-gen-erated exhibit as a simulation or an anima-tion also affects the evidentiary foundationrequired for its admission.

State v. Sayles, 662 N.W.2d 1, 9 (Iowa 2003)(citation omitted).

Courts generally have allowed the admis-sion of computer animations if authenticatedby testimony of a witness with personalknowledge of the content of the animation,upon a showing that it fairly and adequatelyportrays the facts and that it will help toillustrate the testimony given in the case.This usually is the sponsoring witness. Id.at 10 (state’s expert witness had knowledgeof content of shaken infant syndrome anima-tion and could testify that it correctly andadequately portrayed the facts that wouldillustrate her testimony); Hinkle v. City ofClarksburg, 81 F.3d 416 (4th Cir.1996) (hold-ing that a computer-animated videotaped re-creation of events at issue in trial is notunduly prejudicial if it is sufficiently close tothe actual events and is not confused by thejury for the real life events themselves);Friend v. Time Mfg. Co., 2006 WL 2135807,at *7 (D.Ariz. July 28, 2006) (‘‘The use ofcomputer animations is allowed when it satis-fies the usual foundational requirements fordemonstrative evidence. ‘At a minimum, theanimation’s proponent must show the com-puter simulation fairly and accurately depicts

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what it represents, whether through the com-puter expert who prepared it or some otherwitness who is qualified to so testify, and theopposing party must be afforded an opportu-nity for cross-examination.’ ’’ (citation omit-ted)); People v. Cauley, 32 P.3d 602 (Colo.App.2001) (holding that, ‘‘[a] computer ani-mation is admissible as demonstrative evi-dence if the proponent of the video provesthat it: 1) is authentic TTT; 2) is relevantTTT; 3) is a fair and accurate representationof the evidence to which it relates; and 4)has a probative value that is not substantiallyoutweighed by the danger of unfair prejudiceTTT’’); Clark v. Cantrell, 339 S.C. 369, 529S.E.2d 528 (2000) (‘‘[A] party may authenti-cate a video animation by offering testimonyfrom a witness familiar with the preparationof the animation and the data on which it isbased TTT [including] the testimony of theexpert who prepared the underlying data andthe computer technician who used that datato create it.’’ (citation omitted)). Thus, themost frequent methods of authenticatingcomputer animations are 901(b)(1) (witnesswith personal knowledge), and 901(b)(3) (tes-timony of an expert witness).

Computer simulations are treated as aform of scientific evidence, offered for a sub-stantive, rather than demonstrative purpose.WEINSTEIN at § 900,03[1] (p. 900–21); IM-

WINKELRIED, EVIDENTIARY FOUNDATIONS at§ 4.09[4][a],[c]. The case most often citedwith regard to the foundational requirementsneeded to authenticate a computer simulationis Commercial Union v. Boston Edison,where the court stated:

‘‘The function of computer programs likeTRACE ‘is to perform rapidly and accu-rately an extensive series of computationsnot readily accomplished without use of acomputer.’ We permit experts to basetheir testimony on calculations performedby hand. There is no reason to preventthem from performing the same calcula-tions, with far greater rapidity and accura-cy, on a computer. Therefore TTT we treatcomputer-generated models or simulationslike other scientific tests, and conditionadmissibility on a sufficient showing that:(1) the computer is functioning properly;(2) the input and underlying equations aresufficiently complete and accurate (and dis-

closed to the opposing party, so that theymay challenge them); and (3) the programis generally accepted by the appropriatecommunity of scientists.’’

412 Mass. 545, 591 N.E.2d 165, 168 (1992)(citation omitted). The Commercial Uniontest has been followed by numerous courts indetermining the foundation needed to au-thenticate computer simulations. For exam-ple, in State v. Swinton, the court cited withapproval Commercial Union, but added thatthe key to authenticating computer sim-ulations is to determine their reliability. 268Conn. 781, 847 A.2d 921, 942 (2004). In thatregard, the court noted that the followingproblems could arise with this type of com-puter evidence: (1) the underlying informa-tion itself could be unreliable; (2) the entryof the information into the computer could beerroneous; (3) the computer hardware couldbe unreliable; (4) the computer software pro-grams could be unreliable; (5) ‘‘the executionof the instructions, which transforms the in-formation in some way—for example, by cal-culating numbers, sorting names, or storinginformation and retrieving it later’’ could beunreliable; (6) the output of the computer—the printout, transcript, or graphics, could beflawed; (7) the security system used to con-trol access to the computer could be compro-mised; and (8) the user of the system couldmake errors. The court noted that Rule901(b)(9) was a helpful starting point to ad-dress authentication of computer simulations.Id.; see also Bray v. Bi–State Dev. Corp.,949 S.W.2d 93 (Mo.Ct.App.1997) (citing Com-mercial Union and ruling that authenticationproperly was accomplished by a witness withknowledge of how the computer programworked, its software, the data used in thecalculations, and who verified the accuracy ofthe calculations made by the computer withmanual calculations); Kudlacek v. Fiat, 244Neb. 822, 509 N.W.2d 603, (1994) (citingCommercial Union and holding that comput-er simulation was authenticated by the plain-tiff’s expert witness). Thus, the most fre-quent methods of authenticating computersimulations are 901(b)(1) (witness with per-sonal knowledge); and 901(b)(3) (expert wit-ness). Use of an expert witness to authenti-cate a computer simulation likely will also

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involve Federal Rules of Evidence 702 and703.

Digital Photographs

Photographs have been authenticated fordecades under Rule 901(b)(1) by the testimo-ny of a witness familiar with the scene de-picted in the photograph who testifies thatthe photograph fairly and accurately repre-sents the scene. Calling the photographer oroffering exert testimony about how a cameraworks almost never has been required fortraditional film photographs. Today, howev-er, the vast majority of photographs taken,and offered as exhibits at trial, are digitalphotographs, which are not made from film,but rather from images captured by a digitalcamera and loaded into a computer. Digitalphotographs present unique authenticationproblems because they are a form of elec-tronically produced evidence that may bemanipulated and altered. Indeed, unlikephotographs made from film, digital photo-graphs may be ‘‘enhanced.’’ Digital image‘‘enhancement consists of removing, insert-ing, or highlighting an aspect of the photo-graph that the technician wants to change.’’Edward J. Imwinkelried, Can this Photo beTrusted?, Trial, October 2005, at 48. Someexamples graphically illustrate the authenti-cation issues associated with digital enhance-ment of photographs:

‘‘[S]uppose that in a civil case, a shadow ona 35 mm photograph obscures the name ofthe manufacturer of an offending product.The plaintiff might offer an enhanced im-age, magically stripping the shadow to re-veal the defendant’s name. Or supposethat a critical issue is the visibility of ahighway hazard. A civil defendant mightoffer an enhanced image of the stretch ofhighway to persuade the jury that theplaintiff should have perceived the dangerahead before reaching it. In many crimi-nal trials, the prosecutor offers an ‘im-proved’, digitally enhanced image of finger-prints discovered at the crime scene. Thedigital image reveals incriminating pointsof similarity that the jury otherwise wouldnever would have seen.’’

Id. at 49. There are three distinct types ofdigital photographs that should be consid-ered with respect to authentication analysis:

original digital images, digitally convertedimages, and digitally enhanced images. Id.

An original digital photograph may be au-thenticated the same way as a film photo, bya witness with personal knowledge of thescene depicted who can testify that the photofairly and accurately depicts it. Id. If aquestion is raised about the reliability ofdigital photography in general, the court like-ly could take judicial notice of it under Rule201. Id. For digitally converted images, au-thentication requires an explanation of theprocess by which a film photograph was con-verted to digital format. This would requiretestimony about the process used to do theconversion, requiring a witness with personalknowledge that the conversion process pro-duces accurate and reliable images, Rules901(b)(1) and 901(b)(9)-the later rule impli-cating expert testimony under Rule 702. Id.Alternatively, if there is a witness familiarwith the scene depicted who can testify thatthe photo produced from the film when itwas digitally converted, no testimony wouldbe needed regarding the process of digitalconversion. Id.

For digitally enhanced images, it is unlike-ly that there will be a witness who can testifyhow the original scene looked if, for example,a shadow was removed, or the colors wereintensified. In such a case, there will needto be proof, permissible under Rule 901(b)(9),that the digital enhancement process pro-duces reliable and accurate results, whichgets into the realm of scientific or technicalevidence under Rule 702. Id. Recently, onestate court has given particular scrutiny tohow this should be done. In State v. Swin-ton, the defendant was convicted of murderin part based on evidence of computer en-hanced images prepared using the AdobePhotoshop software. 268 Conn. 781, 847A.2d 921, 950–52 (2004). The images showeda superimposition of the defendants teethover digital photographs of bite marks takenfrom the victim’s body. At trial, the statecalled the forensic odontologist (bite markexpert) to testify that the defendant was thesource of the bite marks on the victim.However, the defendant testified that he wasnot familiar with how the Adobe Photoshopmade the overlay photographs, which in-

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volved a multi-step process in which a waxmold of the defendant’s teeth was digitallyphotographed and scanned into the computerto then be superimposed on the photo of thevictim. The trial court admitted the exhibitsover objection, but the state appellate courtreversed, finding that the defendant had notbeen afforded a chance to challenge the sci-entific or technical process by which the ex-hibits had been prepared. The court statedthat to authenticate the exhibits would re-quire a sponsoring witness who could testify,adequately and truthfully, as to exactly whatthe jury was looking at, and the defendanthad a right to cross-examine the witnessconcerning the evidence. Because the wit-ness called by the state to authenticate theexhibits lacked the computer expertise to doso, the defendant was deprived of the right tocross examine him. Id. at 950–51.

Because the process of computer enhance-ment involves a scientific or technical pro-cess, one commentator has suggested thefollowing foundation as a means to authenti-cate digitally enhanced photographs underRule 901(b)(9): (1) The witness is an expertin digital photography; (2) the witness testi-fies as to image enhancement technology,including the creation of the digital imageconsisting of pixels and the process by whichthe computer manipulates them; (3) the wit-ness testifies that the processes used arevalid; (4) the witness testifies that there hasbeen ‘‘adequate research into the specificapplication of image enhancement technologyinvolved in the case’’; (5) the witness testifiesthat the software used was developed fromthe research; (6) the witness received a filmphotograph; (7) the witness digitized the filmphotograph using the proper procedure, thenused the proper procedure to enhance thefilm photograph in the computer; (8) thewitness can identify the trial exhibit as theproduct of the enchantment process he orshe performed. Edward J. Imwinkelried,Can this Photo be Trusted?, Trial, October2005 at 54. The author recognized that thisis an ‘‘extensive foundation,’’ and whether itwill be adopted by courts in the future re-mains to be seen. Id. However, it is proba-ble that courts will require authentication ofdigitally enhanced photographs by adequatetestimony that it is the product of a system

or process that produces accurate and reli-able results. FED.R.EVID. 901(b)(9).

To prepare properly to address authentica-tion issues associated with electronically gen-erated or stored evidence, a lawyer mustidentify each category of electronic evidenceto be introduced. Then, he or she shoulddetermine what courts have required to au-thenticate this type of evidence, and carefullyevaluate the methods of authentication iden-tified in Rules 901 and 902, as well as consid-er requesting a stipulation from opposingcounsel, or filing a request for admission ofthe genuineness of the evidence under Rule36 of the Federal Rules of Civil Procedure.With this analysis in mind, the lawyer thencan plan which method or methods of authen-tication will be most effective, and preparethe necessary formulation, whether throughtestimony, affidavit, admission or stipulation.The proffering attorney needs to be specificin presenting the authenticating facts and, ifauthenticity is challenged, should cite author-ity to support the method selected.

In this case, neither plaintiffs nor defen-dants provided any authenticating facts forthe e-mail and other evidence that they prof-fered in support of their summary judgmentmemoranda—they simply attached the exhib-its. This complete absence of authenticationstripped the exhibits of any evidentiary valuebecause the Court could not consider them asevidentiary facts. This, in turn, required thedismissal, without prejudice, of the cross mo-tions for summary judgment, with leave toresubmit them once the evidentiary deficien-cies had been cured.

Hearsay (Rules 801–807)

The fourth ‘‘hurdle’’ that must be over-come when introducing electronic evidence isthe potential application of the hearsay rule.Hearsay issues are pervasive when electroni-cally stored and generated evidence is intro-duced. To properly analyze hearsay issuesthere are five separate questions that mustbe answered: (1) does the evidence consti-tute a statement, as defined by Rule 801(a);(2) was the statement made by a ‘‘declar-ant,’’ as defined by Rule 801(b); (3) is thestatement being offered to prove the truthof its contents, as provided by Rule 801(c);

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(4) is the statement excluded from the defi-nition of hearsay by rule 801(d); and (5) ifthe statement is hearsay, is it covered by oneof the exceptions identified at Rules 803, 804or 807. It is critical to proper hearsay analy-sis to consider each of these questions.

The requirements of a ‘‘Statement,’’ Rule801(a), made by a ‘‘Person’’, Rule 801(b)

Rule 801(a) states:

‘‘A ‘statement’ is (1) an oral or writtenassertion or (2) nonverbal conduct of aperson, if it is intended by the person as anassertion.’’

The key to understanding the hearsay ruleis to appreciate that it only applies to inten-tionally assertive verbal or non-verbal con-duct, and its goal is to guard against therisks associated with testimonial evidence:perception, memory, sincerity and narration.FED.R.EVID. 801 advisory committee’s note(‘‘The factors to be considered in evaluatingthe testimony of a witness are perception,memory, and narration. Sometimes a fourthis added, sincerity.’’) (citations omitted);WEINSTEIN at § 801. 11[1] (‘‘To be consid-ered hearsay, a statement out of court mustbe offered in evidence to prove the truth ofthe matter it asserts. This part of the defini-tion arises out of the factfinder’s need toassess the credibility of the person who madea statement offered for its truth. When awitness testifies in court, the trier can assessthe witness’s perception, narration and mem-ory to determine whether the testimony ac-curately represents the facts observed.’’);PAUL R. RICE, ELECTRONIC EVIDENCE: LAW

AND PRACTICE, 262 (ABA Publishing2005)(hereinafter ‘‘RICE’’) (‘‘Hearsay is anout-of-court statement offered in court toprove the truth of the matter asserted by theout-of-court declarant. It is offered into evi-dence through the testimony of a witness tothat statement or through a written accountby the declarant. The hearsay rule excludessuch evidence because it possesses the testi-monial dangers of perception, memory, sinc-erity, and ambiguity that cannot be testedthrough oath and cross-examination.’’).

The use of the word ‘‘statement’’ in Rule801(a) is a critical component of the hearsayrule. WEINSTEIN at § 801.10[1] (‘‘BecauseRule 801 describes hearsay as an out-of-courtstatement offered as proof as [sic] the matterasserted, the definition of ‘statement’ is ofcritical importance.’’); SALTZBURG at§ 801.02[1][c] (‘‘If proffered evidence is not a‘statement’ within the meaning of Rule801(a), then it cannot be hearsay, and socannot be excluded under the [hearsay]Rule.’’). The word is used in a very precise,and non-colloquial sense—it only applies toverbal conduct (spoken or written) or non-verbal conduct that is intended by a humandeclarant to be assertive. The advisory com-mittee note to Rule 801(a) states this conceptsquarely:

‘‘The definition of ‘statement’ assumes im-portance because the term is used in thedefinition of hearsay in subdivision (c).The effect of the definition of ‘statement’ isto exclude from the operation of the hear-say rule all evidence of conduct, verbal ornonverbal, not intended as an assertion.The key to the definition is that nothing isan assertion unless intended to be one.’’

Ironically, the word ‘‘assertion’’ is not definedin the hearsay rule, despite its importance tothe concept. An assertion usefully may bedefined as ‘‘to state as true; declare; main-tain.’’ Black’s Law Dictionary 106 (5thed.1979).

Although there is not universal agreementon this point, it appears that for verbal ornonverbal conduct to fall within the definitionof the hearsay rule as defined under thefederal rules of evidence, it must be either anexpressly assertive written or spoken utter-ance, or nonverbal conduct expressly intend-ed to be an assertion—the federal rules ap-pear to have excluded from the definition ofhearsay ‘‘implied assertions’’—or unstatedassertions that are inferred from verbal ornonverbal conduct. The advisory commit-tee’s note to Rule 801(a) supports the notionnon-verbal conduct that is not assertive, andverbal conduct (spoken or written) 39 that isnon-assertive should be viewed the same

39. An example of nonassertive written verbalconduct would be to write a person’s name andaddress on an envelope. An example of nonas-

sertive spoken verbal conduct would be to ask aquestion that does not contain within it a factualassertion ‘‘Is it going to rain tomorrow?’’

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way—falling outside the definition of a‘‘statement:’’

‘‘[N]onverbal conduct TTT may be offeredas evidence that the person acted as he didbecause of his belief in the existence of thecondition sought to be proved, from whichbelief the existence of the condition may beinferred. This sequence is, arguably, ineffect an assertion of the existence of thecondition and hence properly includablewithin the hearsay concept. Admittedly,evidence of this character is untested withrespect to the perception, memory, andnarration (or their equivalents) of the ac-tor, but the Advisory Committee is of theview that these dangers are minimal in theabsence of an intent to assert and do notjustify the loss of the evidence on hearsaygrounds. No class of evidence is free ofthe possibility of fabrication, but the likeli-hood is less with nonverbal than with as-sertive verbal conduct. The situations giv-ing rise to the nonverbal conduct are suchas virtually to eliminate questions of sinc-erityTTTT Similar considerations governnonassertive verbal conduct and verbalconduct which is assertive but offered as abasis for inferring something other thanthe matter asserted, also excluded from thedefinition of hearsay by the language ofsubdivision (c).’’

FED.R.EVID. 801(a) advisory committee’s note(emphasis added) (citation omitted); Wilsonv. Clancy, 747 F.Supp. 1154, 1158 (D.Md.1990) (‘‘It appears to be the intent of thelimitation of the hearsay definition underFED.R.EVID. 801(a)(2) to non-verbal conduct

‘intended by the [declarant] as an assertion’to do away with the notion that ‘impliedassertions’ are within the hearsay prohibi-tion.’’ (alterations in original) (citation omit-ted)); WEINSTEIN at § 801.10[2][c]; 40 SALTZ-

BURG at § 801.02[1][c].41

The second question that must be an-swered in the hearsay analysis is closely tiedto the first. A writing or spoken utterancecannot be a ‘‘statement’’ under the hearsayrule unless it is made by a ‘‘declarant,’’ asrequired by Rule 801(b), which provides ‘‘[a]‘declarant’ is a person who makes a state-ment.’’ (emphasis added). When an elec-tronically generated record is entirely theproduct of the functioning of a computerizedsystem or process, such as the ‘‘report’’ gen-erated when a fax is sent showing the num-ber to which the fax was sent and the time itwas received, there is no ‘‘person’’ involvedin the creation of the record, and no ‘‘asser-tion’’ being made. For that reason, the rec-ord is not a statement and cannot be hear-say.

Cases involving electronic evidence oftenraise the issue of whether electronic writingsconstitute ‘‘statements’’ under Rule 801(a).Where the writings are non-assertive, or notmade by a ‘‘person,’’ courts have held thatthey do not constitute hearsay, as they arenot ‘‘statements.’’ United States v. Khorozi-an, 333 F.3d 498, 506 (3d Cir.2003) (‘‘[N]ei-ther the header nor the text of the fax washearsay. As to the header, ‘[u]nder FRE801(a), a statement is something uttered by‘‘a person,’’ so nothing ‘‘said’’ by a machineTTT is hearsay’ ’’ (second alteration in origi-

40. ‘‘Words and actions may convey meaningeven though they were not consciously intendedas assertions. Sometimes the relevance of wordsor actions to show a particular fact depends ondrawing an inference that a person would nothave spoken or acted in a certain way unless theperson believed a relevant fact to be true. Ac-cording to the Advisory Committee, the ‘key tothe definition is that nothing is an assertion un-less it is intended to be’. Many courts havefound that words or conduct offered to show theactor’s implicit beliefs do not constitute state-ments under the hearsay rule unless they wereintended by the actor as an assertionTTTT Othercourts, however, have noted that an oral or writ-ten declaration is hearsay if offered to show thetruth of a matter implied by its contents.’’

41. ‘‘Common-law jurisdictions divide on whethernonverbal conduct that is not intended as anassertion is hearsay if it is introduced to showthe truth of the actor’s underlying beliefsTTTT Thereasons for excluding non-assertive conduct fromthe hearsay rule are persuasive. A principalreason for excluding hearsay is that the veracityof the declarant cannot be tested by cross-exami-nation. In the case of non-assertive acts, theactor by definition does not intend to make anassertion, meaning that the risk of insincerity issubstantially diminished. The actor is at leastnot trying to lie. Moreover, non-assertive con-duct is usually more reliable than the ordinaryout-of-court statement, because by conduct thedeclarant has risked action on the correctness ofhis belief—he has put his money where hismouth is.’’

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nal)); Safavian, 435 F.Supp.2d at 44 (holdingthat portions of e-mail communications thatmake imperative statements instructing de-fendant what to do, or asking questions arenonassertive verbal conduct that does not fitwithin the definition of hearsay); TelewizjaPolska USA, 2004 WL 2367740 (finding thatimages and text posted on website offered toshow what the website looked like on a par-ticular day were not ‘‘statements’’ and there-fore fell outside the reach of the hearsayrule); Perfect 10, 213 F.Supp.2d at 1155(finding that images and text taken fromwebsite of defendant not hearsay, ‘‘to theextent these images and text are being intro-duced to show the images and text found onthe websites, they are not statements at all—and thus fall outside the ambit of the hearsayrule.’’); United States v. Rollins, rev’d onother grounds 2004 WL 26780, at *9 (A.F.Ct.Crim.App. Dec.24, 2003)(‘‘Computer generat-ed records are not hearsay: the role that thehearsay rule plays in limiting the fact finder’sconsideration to reliable evidence receivedfrom witnesses who are under oath and sub-ject to cross-examination has no applicationto the computer generated record in thiscase. Instead, the admissibility of the com-puter tracing system record should be meas-ured by the reliability of the system itself,relative to its proper functioning and accura-cy.’’); State v. Dunn, 7 S.W.3d 427, 432 (Mo.Ct.App.2000) (‘‘Because records of this type[computer generated telephone records] arenot the counterpart of a statement by ahuman declarant, which should ideally betested by cross-examination of that declar-ant, they should not be treated as hearsay,but rather their admissibility should be de-termined on the reliability and accuracy ofthe process involved.’’); State v. Hall, 976S.W.2d 121, 147 (Tenn.1998) (reviewing theadmissibility of computer generated recordsand holding ‘‘[t]he role that the hearsay ruleplays in limiting the fact finder’s consider-ation to reliable evidence received from wit-nesses who are under oath and subject tocross-examination has no application to thecomputer generated record in this case. In-stead, the admissibility of the computer trac-

ing system record should be measured by thereliability of the system, itself, relative to itsproper functioning and accuracy.’’).

The requirement that the statement be of-fered to prove its substantive truth.

The third question that must be answeredin determining if evidence is hearsay iswhether the statement is offered to prove itssubstantive truth, or for some other purpose.Rule 801(c) states: ‘‘Hearsay is a statement,other than one made by the declarant whiletestifying at the trial or hearing, offered inevidence to prove the truth of the matterasserted.’’ (emphasis added). Thus, even ifthe evidence is an assertion, made by a de-clarant, it still is not hearsay unless offeredto prove the truth of what is asserted. Theadvisory committee’s note to Rule 801(c) un-derscores this: ‘‘If the significance of anoffered statement lies solely in the fact thatit was made, no issue is raised as to the truthof anything asserted, and the statement isnot hearsay. The effect is to exclude fromhearsay the entire category of ‘verbal acts’and ‘verbal parts of an act,’ in which thestatement itself affects the legal rights of theparties or is a circumstance bearing on con-duct affecting their rights.’’ FED.R.EVID.

801(c) advisory committee’s note (citationomitted). See also WEINSTEIN at § 801.11[1](‘‘ ‘If the significance of an offered statementlies solely in the fact that it was made, noissue is raised as to the truth of anythingasserted.’ Thus, if a declarant’s statement isnot offered for its truth, the declarant’s cred-ibility is not material, and the statement isnot hearsay.’’ (citation omitted)). Commen-tators have identified many instances inwhich assertive statements are not hearsaybecause they are not offered to prove thetruth of the assertions: (1) statements of-fered to prove a claim that the statement wasfalse or misleading, as in a fraud or misrep-resentation case; 42 (2) statements offered to‘‘prove that because they were made, listen-ers had notice or knowledge of the informa-tion related in the statements,’’ or to showthe effect on the listener of the statement; 43

(3) statements ‘‘offered to prove an associa-

42. SALTZBURG at § 801.02[1][e]. 43. Id. at § 801.02[1][f]; WEINSTEIN at§ 801.11[5][a].

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tion between two or more persons;’’ 44 (4)statements offered as circumstantial evidenceof the declarant’s state of mind,45 or mo-tive; 46 (5) statements that have relevancesimply because they were made, regardlessof their literal truth or falsity—the so called‘‘verbal acts or parts of acts,’’ 47 also referredto as ‘‘legally operative facts’’; 48 and (6)statements that are questions or imperativecommands,49 such as ‘‘what time is it’’ or‘‘close the door.’’

When analyzing the admissibility of elec-tronically generated evidence, courts alsohave held that statements contained withinsuch evidence fall outside the hearsay defini-tion if offered for a purpose other than theirsubstantive truth. Siddiqui, 235 F.3d at1323 (e-mail between defendant and co-work-er not hearsay because not offered to provetruth of substantive content, but instead toshow that a relationship existed between de-fendant and co-worker, and that it was cus-tomary for them to communicate by e-mail);Safavian, 435 F.Supp.2d at 44 (e-mail fromlobbyist to defendant not hearsay becausethey were not offered to prove their truth,but to illustrate the nature of the lobbyist’swork on behalf of clients to provide contextfor other admissible e-mail; and as evidenceof the defendant’s intent, motive and state ofmind); Telewizja Polska USA, 2004 WL2367740; Perfect 10, 213 F.Supp.2d at 1155(exhibits of defendant’s website on a particu-lar date were not ‘‘statements’’ for purposesof hearsay rule because they were offered toshow trademark and copyright infringement,therefore they were relevant for a purposeother than their literal truth); State v.

Braidic, 119 Wash.App. 1075, 2004 WL 52412at *1 (Jan. 13, 2004) (e-mail sent by defen-dant to victim not hearsay because they werenot offered to prove the truth of the state-ments.).

Finally, of particular relevance to this suitare the cases that have held that communica-tions between the parties to a contract thatdefine the terms of a contract, or prove itscontent, are not hearsay, as they are verbalacts or legally operative facts. See, e.g., Pre-ferred Properties Inc. v. Indian River Es-tates Inc., 276 F.3d 790, 799 n. 5 (6th Cir.2002) (verbal acts creating a contract are nothearsay); Kepner–Tregoe, Inc. v. LeadershipSoftware, 12 F.3d 527, 540 (5th Cir.1994)(finding contract to be a signed writing ofindependent legal significance and thereforenon-hearsay); Mueller v. Abdnor, 972 F.2d931, 937 (8th Cir.1992) (holding contracts andletters from attorney relating to the forma-tion thereof are non-hearsay); United Statesv. Tann, 425 F.Supp.2d 26, 29 (D.D.C.2006)(finding negotiable instruments to be legallyoperative documents that do not constitutehearsay); Planmatics, 137 F.Supp.2d at 621(D.Md.2001) (holding testimony regarding in-structions made to individuals is not hearsaybecause instructions were not statements offact). See also WEINSTEIN at § 801.11[3].50

Because the e-mails that the parties to thissuit attached as unauthenticated exhibits totheir summary judgment papers were intro-duced for the purpose of proving the makingof the agreement to arbitrate the disputeregarding the damage caused by the light-ning strike, and the terms of this agreement,

44. SALTZBURG at § 801.2[1][g]; see also WEINSTEIN

at § 801.11[6].

45. SALTZBURG at § 801.02[1][h]. This category typ-ically deals with statements from which the de-clarant’s state of mind is circumstantially in-ferred. For example, if someone says ‘‘Woe isme’’ it may be inferred that they are depressed orsad. Such statements are in contrast to state-ments that constitute direct evidence of the de-clarant’s state of mind, offered to prove that stateof mind, for example ‘‘I feel good,’’ offered toprove that the declarant felt good. The laterexample is hearsay, but covered by an exception,Rule 803(3): Then existing state of mind or con-dition.

46. WEINSTEIN at § 801.11[5][a], [c].

47. SALTZBURG at § 801.02[1][j].

48. WEINSTEIN at § 801.11[3]-[4].

49. Id. at § 801.11[2].

50. A verbal act is an utterance of an operativefact that gives rise to legal consequences. Verbalacts, also known as statements of legal conse-quence, are not hearsay, because the statement isadmitted merely to show that it was actuallymade, not to prove the truth of what was assert-ed in it. For example, the hearsay rule does notexclude relevant evidence as to what the con-tracting parties said or wrote with respect to themaking or the terms of an agreement.

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they are not hearsay if offered for this pur-pose because they are verbal acts, or legallyoperative facts. What the parties did not do,however, was articulate the non-hearsay pur-pose for which the e-mails were offered;they merely attached them as exhibits, with-out further explanation of the purpose forwhich they were offered, or clarification thatthey were not offered for their substantivetruth. Because evidence may be offered formore than one purpose, it may be relevantfor its substantive truth, and potentiallyhearsay, or relevant for some other purpose,and non-hearsay. For this reason it is im-portant for a party offering an exhibit intoevidence to clearly explain each purpose forwhich it is offered, and address any hearsayissues associated with each purpose for whichit is offered.Is the evidence excluded from the defini-tion of hearsay by Rule 801(d)(1) or801(d)(2).

Once it has been determined whether evi-dence falls into the definition of hearsay be-cause it is a statement, uttered by a declar-ant, and offered for its substantive truth, thefinal step in assessing whether it is hearsayis to see if it is excluded from the definitionof hearsay by two rules: 801(d)(1), whichidentifies three types of prior statements bywitnesses who actually testify and are sub-ject to cross examination, which are excludedfrom the definition of hearsay, and 801(d)(2),which identifies five types of admissions by aparty opponent that are excluded from thedefinition of hearsay. FED.R.EVID. 801(d) ad-visory committee’s note (‘‘[s]everal types ofstatements which would otherwise literallyfall within the definition [of hearsay] areexpressly excluded from it TTT’’); WEINSTEIN

at § 801[20][1] & 801[30][1]; SALTZBURG at§ 801.02[2] & 801.02[6].

Rule 801(d)(1) identifies three types of pri-or witness statements that are excluded fromthe definition of hearsay: first, 801(d)(1)(A)excludes prior inconsistent ‘‘testimonial state-ments’’ made under oath at a trial, hearing,court proceeding or deposition; next,801(d)(1)(B) excludes prior consistent state-ments offered to rebut an express or impliedallegation of recent fabrication, or improperinfluence or motive; and finally, 801(d)(1)(C)

excludes statements of identification of a per-son made after perceiving that person. Foreach of these exceptions, it is required thatthe declarant testify at trial and be subject tocross examination about the prior state-ments. FED. R. EVID 801(d)(1); FED.R.EVID.

801(d)(1) advisory committee’s note (‘‘[Rule801(d)(1)] requires in each instance, as ageneral safeguard, that the declarant actuallytestify as a witness, and it then enumeratesthree situations in which the statement isexcepted from the category of hearsay.’’);WEINSTEIN at § 801.20[2] (‘‘For a prior wit-ness statement to escape the hearsay rule,the declarant must testify at trial and besubject to cross-examination concerning thestatement.’’ (citation omitted)).

Rule 801(d)(2) identifies five types of state-ments as ‘‘admissions by a party opponent,’’and excludes them from the definition ofhearsay. Specifically: 801(d)(2)(A) excludesthe party’s own statement, made in either anindividual or representative capacity;801(d)(2)(B) addresses a statement by anoth-er that a party has adopted or manifested abelief in its truth; 801(d)(2)(C) deals with astatement by a person authorized by a partyto make a statement concerning a subject;801(d)(2)(D) excludes a statement made by aparty’s agent or servant concerning a matterwithin the scope of the agency or employ-ment, made during the existence of the agen-cy or employment relationship; and801(d)(2)(E) excludes the statement of a co-conspirator of a party made during the exis-tence of the conspiracy and in furtherance ofthe conspiracy. To qualify as an admission,the party’s out-of-court statement must beoffered against that party, it cannot offer itsown out of court statements as admissions.WEINSTEIN at § 801.30[1] (‘‘To be admissibleunder [Rule 801(d)(2)], the party’s state-ments must be offered against that party. Aparty cannot use this provision to offer his orher own statements into evidence.’’).

As can be seen from reading Rule801(d)(1) and (2), there are specific founda-tional facts that must be established beforethe statement or admission can be acceptedinto evidence. These determinations aremade by the trial judge under Rule 104(a),and therefore the rules of evidence, except

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for privilege, are inapplicable. FED.R.EVID.

104(a), 1101(d)(1); FED.R.EVID. 104(a) adviso-ry committee’s note (‘‘[W]hen a hearsaystatement is offered as a declaration againstinterest, a decision must be made whether itpossesses the required against-interest char-acteristics. These decisions too, are made bythe judge.’’)

Given the near universal use of electronicmeans of communication, it is not surprisingthat statements contained in electronicallymade or stored evidence often have beenfound to qualify as admissions by a partyopponent if offered against that party. Sid-diqui, 235 F.3d at 1323 (ruling that e-mailauthored by defendant was not hearsay be-cause it was an admission under Rule801(d)(2)(A)); Safavian, 435 F.Supp.2d at43–44 (holding that e-mail sent by defendanthimself was admissible as non-hearsay be-cause it constituted an admission by the de-fendant, 801(d)(2)(A), and as an ‘‘adoptiveadmission’’ under Rule 801(d)(2)(B)); Telew-izja Polska USA, 2004 WL 2367740 (N.D.Ill.Oct.15, 2004) (holding exhibits showing de-fendant’s website as it appeared on a certainday were admissible as admissions againstdefendant); Perfect 10, 213 F.Supp.2d at1155 (admitting e-mail sent by employees ofdefendant against the defendant as admis-sions under 801(d)(2)(D)).

If, after applying the foregoing four-stepanalysis, it is determined that the electronicevidence constitutes a statement by a personthat is offered for its substantive truth and isnot excluded from the definition of hearsayby Rule 801(d)(1) or (2), then the evidence ishearsay, and is inadmissible unless it quali-fies as one of many hearsay exceptions iden-tified by Rule 803, 804 and 807. The processof determining whether hearsay falls into oneof the many exceptions can appear daunting,because there are twenty-three identified inRule 803, five in Rule 804, and Rule 807, theso-called ‘‘catch-all’’ exception, allows excep-tions to be tailor made. Upon closer exami-nation, however, the task is less onerousbecause the number of hearsay exceptionscan be categorized in helpful ways that makethem more manageable, and in most instanc-es a handful of hearsay exceptions repeatedlyare used in connection with electronically

generated or stored evidence. Familiaritywith these rules will suffice in most instancesto overcome hearsay objections routinelymade to ESI.

Rule 803 contains twenty-three separatehearsay exceptions. At first glance they mayseem like they have nothing in common, butthey do. All twenty-three are admissibleregardless of whether the declarant is avail-able to testify, distinguishing them from thefive exceptions in Rule 804, each of which isinapplicable unless the declarant is ‘‘unavail-able,’’ as defined by any of the five methodsidentified in Rule 804(a). In addition, thetwenty-three exceptions in Rule 803 may begrouped in three broad categories: Category1 includes exceptions dealing with percep-tions, observations, state of mind, intentand sensation 803(1) (present sense impres-sions); 803(2) (excited utterances); 803(3)(then existing state of mind, condition orsensation); 803(4) (statements in furtheranceof medical diagnosis and treatment). Cate-gory 2 includes documents, records, andother writings 803(5) (past recollection re-corded); 803(6) & (7) (business records);803(8) & (10) (public records); 803(9) (rec-ords of vital statistics); 803(11) (records ofreligious organizations); 803(12) (certificatesof baptism, marriage and related events);803(13) (family records); 803(14) (records ofdocuments affecting an interest in property);803(15) (statements in documents affectingan interest in property); 803(16) (ancientdocuments); 803(18) (learned treatises);803(22) (judgments of conviction in a criminalcase); and 803(23) (judgments in certainkinds of civil cases). Category 3 includesstatements dealing with reputation 803(19)(reputation regarding personal or family his-tory); 803(20) (reputation regarding custom,use and practice associated with land, andhistorically significant facts); and 803(21)(reputation regarding character within thecommunity and among associates).

Given the widely accepted fact that mostwritings today are created and stored inelectronic format, it is easy to see that themany types of documents and writings cov-ered in Rule 803 will implicate electronicwritings. Similarly, given the ubiquity ofcommunications in electronic media (e-mail,

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text messages, chat rooms, internet postingson servers like ‘‘myspace’’ or ‘‘youtube’’ or onblogs, voice mail, etc.), it is not surprisingthat many statements involving observationsof events surrounding us, statements regard-ing how we feel, our plans and motives, andour feelings (emotional and physical) will becommunicated in electronic medium. Itwould unnecessarily prolong an alreadylengthy opinion to analyze all of the implica-tions of the hearsay exceptions in Rule 803 asthey relate to ESI. It is possible, however, tofocus on the handful that have been dis-cussed by the courts and that are most likelyto be used in a hearsay analysis of ESI.Because the court’s research has shown thatthe Rule 803 hearsay exceptions, rather thanthose found in Rules 804 or 807, have beencited by courts evaluating the hearsay impli-cations of electronic evidence, the followinganalysis will be confined to that rule.

Rule 803(1) Present Sense Impression

Rule 803(1) creates an exception from ex-clusion under the hearsay rule for:

‘‘(1) Present sense impression. A state-ment describing or explaining an event orcondition made while the declarant wasperceiving the event or condition, or imme-diately thereafter.’’

There are three elements that must be metfor this hearsay exception to apply: (1) thedeclarant must have personally perceived theevent that is described in the statement; (2)the statement must be a simple explanationor description of the event perceived; and (3)the declaration and the event described mustbe contemporaneous. WEINSTEIN at§ 803.03[1]. Present sense impressions areconsidered trustworthy because the near si-multaneous expression of the explanation ordescription of the event with its perceptionmilitates against any memory deficiency, oropportunity to intentionally misstate what oc-curred. FED.R.EVID. 803(1) advisory commit-tee’s note (‘‘The underlying theory of Excep-tion (1) is that substantial contemporaneity ofevent and statement negate the likelihood of

deliberate or conscious misrepresentation.’’);WEINSTEIN at § 803.03[1].

Rule 803(2) Excited Utterance

Closely related to Rule 803(1) is Rule803(2),51 the excited utterance exception tothe hearsay rule, which provides:

‘‘(2) Excited utterance. A statement relat-ing to a startling event or condition madewhile the declarant was under the stress ofexcitement caused by the event or condi-tion.’’

The theory behind the excited utterance ex-ception is that perception of a startling orexciting event produces in the declarant anemotional state that reduces the likelihoodthat the description of the event while underthis emotional state will be inaccurate orpurposely misstated. FED.R.EVID. 803(2) ad-visory committee’s note (‘‘The theory of Ex-ception (2) is simply that circumstances mayproduce a condition of excitement which tem-porarily stills the capacity of reflection andproduces utterances free of conscious fabrica-tion.’’); WEINSTEIN at § 803.04[1] (‘‘Thepremise underlying the exception for excitedutterances is that a person under the influ-ence of excitement precipitated by an exter-nal startling event will not have the reflectivecapacity essential for fabrication.’’).

The prevalence of electronic communica-tion devices, and the fact that many areportable and small, means that people alwaysseem to have their laptops, PDA’s, and cellphones with them, and available for use tosend e-mails or text messages describingevents as they are happening. Further, it isa common experience these days to talk tosomeone on the phone and hear them typingnotes of the conversation on a computer asyou are talking to them. For these reasons,Rules 803(1) and (2) may provide hearsayexceptions for electronically stored communi-cations containing either present sense im-pressions or excited utterances. See, e.g.,United States v. Ferber, 966 F.Supp. 90(D.Mass.1997) (holding that e-mail from em-ployee to boss about substance of telephonecall with defendant in mail/wire fraud case

51. See FED.R.EVID. 803(1)-(2) advisory commit-tee’s note (‘‘Exceptions (1) and (2) [to Rule 803].In considerable measure these two examples ov-erlap, though based on somewhat different theo-

ries. The most significant practical differencewill lie in the time lapse allowable between theevent and statement.’’).

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did qualify as a present sense expressionunder Rule 803(1), but did not qualify as anexcited utterance under Rule 803(2), despitethe language at the end of the e-mail ‘‘mymind is mush.’’); State of New York v. Mi-crosoft, 2002 WL 649951 (D.D.C. Apr.12,2002) (analyzing the admissibility of series ofexhibits including e-mail and e-mail ‘‘chains’’under various hearsay exceptions, and rulingthat an e-mail prepared several days after atelephone call that described the call did notqualify as a present sense impression underRule 803(1) because the requirement of ‘‘con-temporaneity’’ was not met).Rule 803(3) Then Existing State of Mindor Condition

Rule 803(3) provides a hearsay exceptionfor:

‘‘(3) Then existing mental, emotional, orphysical condition. A statement of thedeclarant’s then existing state of mind,emotion, sensation, or physical condition(such as intent, plan, motive, design, men-tal feeling, pain, and bodily health), but notincluding a statement of memory or beliefto prove the fact remembered or believedunless it relates to the execution, revoca-tion, identification, or terms of declarant’swill.’’

Rule 803(3) also is closely related to Rule803(1). See FED.R.EVID. 803(3) advisorycommittee’s note (‘‘Exception (3) [to Rule803] is essentially a specialized application ofException (1), presented separately to en-hance its usefulness and accessibility.’’). Therule permits the statement of the declarant’sstate of mind, sensation, mental, emotional,or physical condition, as well as statements ofmotive, intent, plan or design, but excludesstatements of memory or belief if offered toprove the truth of the fact remembered.FED.R.EVID. 803(3) advisory committee’s note(‘‘The exclusion of ‘statements of memory orbelief to prove the fact remembered or be-lieved’ is necessary to avoid the virtual de-struction of the hearsay rule which wouldotherwise result from allowing state of mind,provable by a hearsay statement, to serve asthe basis for an inference of the happening ofthe event which produced the state ofmind.’’). The foundation for proving an ex-ception under Rule 803(3) is: (1) The state-

ment must be contemporaneous with themental state being proven; (2) There mustbe [an absence of] suspicious circumstancesthat would evidence a motive for fabricationor misrepresentation of the declarant’s stateof mind; and (3) The state of mind of thedeclarant must be relevant in the case.WEINSTEIN at § 803.05[2][a]. Rule 803(3) hasbeen used to prove a wide variety of matters,including the reason why the declarant wouldnot deal with a supplier or dealer, motive,competency, ill-will, motive, lack of intent todefraud, willingness to engage in criminalconduct, the victim’s state of mind in anextortion case, and confusion or secondarymeaning in a trademark infringement case.Id.

Rule 803(3) is particularly useful when try-ing to admit e-mail, a medium of communica-tion that seems particularly prone to candid,perhaps too-candid, statements of the declar-ant’s state of mind, feelings, emotions, andmotives. Indeed, courts have analyzed thisrule in connection with ruling on the admissi-bility of electronic evidence. In New York v.Microsoft, the court analyzed admissibility ofe-mail and e-mail chains under a variety ofhearsay rules, including 803(3). 2002 WL649951. It concluded that an e-mail madeseveral days following a telephone conversa-tion did not qualify under Rule 803(3) be-cause it contained more than just the declar-ant’s state of mind, but also included themaker’s memory of belief about the eventsthat affected his state of mind, which isspecifically excluded by Rule 803(3). Id. at*5. See also Safavian, 435 F.Supp.2d at 44(admitting e-mail that contained statementsof defendant’s state of mind under Rule803(3)).Rule 803(6) Business Records

Rule 803(6) recognizes an exception to thehearsay rule for:

‘‘(6) Records of regularly conducted activi-ty. A memorandum, report, record, ordata compilation, in any form, of acts,events, conditions, opinions, or diagnoses,made at or near the time by, or frominformation transmitted by, a person withknowledge, if kept in the course of a regu-larly conducted business activity, and if itwas the regular practice of that business

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activity to make the memorandum, report,record or data compilation, all as shown bythe testimony of the custodian or otherqualified witness, or by certification thatcomplies with Rule 902(11), Rule 902(12),or a statute permitting certification, unlessthe source of information or the method orcircumstances of preparation indicate lackof trustworthiness. The term ‘business’ asused in this paragraph includes business,institution, association, profession, occupa-tion, and calling of every kind, whether ornot conducted for profit.’’

The foundational elements for a business rec-ord are: (1) The document must have beenprepared in the normal course of business;(2) it must have been made at or near thetime of the events it records; (3) it must bebased on the personal knowledge of the en-trant or of an informant who had a businessduty to transmit the information to the en-trant; 52 and (4) to have been made in thenormal course of business means that thedocument was made in the regular course ofa regularly conducted business activity, forwhich it was the regular practice of the busi-ness to maintain a memorandum. WEINSTEIN

at § 803.08[1]. It is essential for the excep-tion to apply that it was made in furtheranceof the business’ needs, and not for the per-sonal purposes of the person who made it.Given the fact that many employees use thecomputers where they work for personal aswell as business reasons, some care must betaken to analyze whether the business recordexception is applicable, especially to e-mail.

Rule 902(11) also is helpful in establishingthe foundation elements for a business rec-ord without the need to call a sponsoringwitness to authenticate the document andestablish the elements of the hearsay excep-tion. Rule 902(11) permits the self-authenti-cation of a business record by showing thefollowing:

‘‘(11) Certified domestic records of regu-larly conducted activity. The original or aduplicate of a domestic record of regularlyconducted activity that would be admissi-ble under Rule 803(6) if accompanied by awritten declaration of its custodian or oth-er qualified person, in a manner complyingwith any Act of Congress or rule pre-scribed by the Supreme Court pursuant tostatutory authority, certifying that the rec-ord—

(A) was made at or near the time of theoccurrence of the matters set forth by,or from information transmitted by, aperson with knowledge of those matters;

(B) was kept in the course of the regu-larly conducted activity; and

(C) was made by the regularly conduct-ed activity as a regular practice.

A party intending to offer a record intoevidence under this paragraph must pro-vide written notice of that intention to alladverse parties, and must make the recordand declaration available for inspectionsufficiently in advance of their offer intoevidence to provide an adverse party witha fair opportunity to challenge them.’’

52. The majority view is that the source of theinformation memorialized in the business recordmust have a business duty to transmit the infor-mation to the maker of the record, if the makerhim or herself lacks personal knowledge of thefacts or events. See, e.g., FED.R.EVID. 803(3) advi-sory committee’s note (‘‘Sources of informationpresented no substantial problem with ordinarybusiness records. All participants, including theobserver or participant furnishing the informa-tion to be recorded, were acting routinely, undera duty of accuracy, with the employer relianceon the result, or in short ‘in the regular course ofbusiness’. If, however, the supplier of the infor-mation does not act in the regular course, anessential link is broken; the assurance of accura-cy does not extend to the information itself, andthe fact that it may be recorded with scrupulousaccuracy is of no avail.’’). However, somecourts have held that it may be possible to meet

the requirements of the business record excep-tion even if the source of the information had nobusiness duty to provide it to the maker of therecord, provided the recipient of the informationhas a business duty to verify the accuracy of theinformation provided. See, e.g., Rambus, 348F.Supp.2d at 706–07 (Court noted that ordinari-ly, when the supplier of the information recordedin the business record does not act in the regularcourse of the business, an ‘‘essential link’’ in thefoundation is broken, but recognized that‘‘[w]hen the source of the information in thebusiness record is an outsider, the only way tosave the record from the jaws of the hearsayexclusion is to establish that the business recipi-ent took precautions to guarantee the accuracyof the given information. Thus, the companymust have been able in some way to verify theinformation provided.’’ (citation omitted)).

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Because the elements for both rules are es-sentially identical, they frequently are ana-lyzed together when Rule 902(11) is the prof-fered means by which a party seek to admita business record. See In re Vee Vinhnee,336 B.R. at 446; Rambus, 348 F.Supp.2d at701 (holding that analysis of Rule 803(6) and902(11) go ‘‘hand in hand,’’ and identifyingthe following requirements for authenticationunder Rule 902(11):(1) a qualified custodianor other person having personal knowledgemakes the authenticating declaration, whomust have ‘‘sufficient knowledge of the rec-ord-keeping system and the creation of thecontested record to establish their trustwor-thiness;’’ (2) the declaration must establishthat the record was made at or near the timeof the occurrence or matters set forth in thedocument by someone with personal knowl-edge of these matters or from informationprovided by someone with personal knowl-edge thereof; (3) the declaration must showthat the record is kept in the course of theregularly conducted activity of the business,and the ‘‘mere presence of a document TTT inthe retained file of a business entity do[es]not by itself qualify as a record of a regularlyconducted activity’’; and (4) the declarationmust establish that it is the regular practiceof the business to keep records of a regularlyconducted activity of the business, and ‘‘it isnot enough if it is the regular practice of anemployee to maintain the record of the regu-larly conducted activity TTTT it must be theregular practice of the business entity to doso’’—i.e. it is at the direction of the companythat the employee maintain the record).

The business record exception is one of thehearsay exceptions most discussed by courtswhen ruling on the admissibility of electronicevidence. The decisions demonstrate a con-tinuum running from cases where the courtwas very lenient in admitting electronic busi-ness records, without demanding analysis, tothose in which the court took a very demand-ing approach and scrupulously analyzed ev-ery element of the exception, and excludedevidence when all were not met. For exam-ple, in State of New York v. Microsoft, thecourt analyzed the admissibility of ‘‘e-mailchains.’’ 2002 WL 649951 (D.D.C. Apr.12,2002). The court held that an e-mail pre-pared by an employee did not qualify as a

business record because, while it may havebeen the regular practice of the employee tosend an e-mail following the receipt of aphone call that summarized the call, therehad been no showing that it was the regularpractice of the employer to require that theemployee make and maintain such e-mails.Id. at *9. The court was particularly carefulin analyzing the hearsay issues associatedwith e-mail chains involving multiple employ-ees of the same employer. It held that toestablish a proper foundation, the proponentwould have to show that when the source ofthe information related in the e-mail is some-one other than the maker of the e-mail, thatthe source, the maker ‘‘as well as every otherparticipant in the chain producing the recordare, acting in the regular course of [the]business.’’ Id. at *14. If this showing ismade, the court ruled, then the multiple lev-els of hearsay in the e-mail chain are coveredby Rule 803(6). However, ‘‘[i]f the source ofthe information is an outsider, Rule 803(6)does not, by itself, permit the admission ofthe business record. The outsider’s state-ment must fall within another hearsay excep-tion to be admissible because it does not havethe presumption of accuracy that statementsmade during the regular course of businesshave.’’ Id. at *14. The court also excludedanother e-mail chain for failure of the propo-nent to establish a proper foundation, saying‘‘[p]laintiffs have not established the requisitefoundation that the multiple authors of thesee-mails each composed their portion of thedocument in the course of regularly conduct-ed business activity and that it was the regu-lar practice of RealNetworks to composesuch e-mail correspondence. Moreover, themultiple authors and forwarded nature of thee-mails undercuts the reliability of the infor-mation contained therein.’’ Id. at *19.

Similarly, in Rambus Inc. v. InfineonTech. AG, the Court critically analyzed theadmissibility of e-mail under the businessrecord exception to the hearsay rule. 348F.Supp.2d 698, 706 (E.D.Va.2004). Certainexhibits objected to by the defendant were e-mail chains prepared at least in part bypersons outside of the business entity thatmaintained the e-mail as part of its records,and which was seeking their admissibility as

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business records. The court noted that therewas ‘‘not a requirement that the records havebeen prepared by the entity that has custodyof them, as long as they were created in theregular course of some [other] entity’s busi-ness.’’ Id. (quoting WEINSTEIN, at§ 803.08[8][a] ). The court added ‘‘[h]owev-er, it also is true that: To satisfy Rule 803(6)each participant in the chain which createdthe record—from the initial observer-report-er to the final entrant—must generally beacting in the course of the regularly con-duct[ed] business. Id. at 707. If some par-ticipant is not so engaged, some other hear-say exception must apply to that link of thechain.’’ Id. at 706.

In contrast to the demanding approachtaken in Rambus and New York v. Microsoft,the court in United States v. Safavian took amore flexible approach to the admissibility ofe-mail chains. 435 F.Supp.2d 36, 40–41(D.D.C.2006). The defendant objected to theadmissibility of e-mail chains, arguing thatthey were not trustworthy because they con-tained e-mails embedded within e-mails.The court overruled this objection, stating:

‘‘[t]he defendant’s argument is more ap-propriately directed to the weight the juryshould give the evidence, not its authentici-ty. While the defendant is correct thatearlier e-mails that are included in achain—either as ones that have been for-warded or to which another has replied—may be altered, this trait is not specific toe-mail evidence. It can be true of anypiece of documentary evidence, such as aletter, a contract or an invoiceTTTT Thepossibility of alteration does not and can-not be the basis for excluding e-mails asunidentified or unauthenticated as a mat-ter of courseTTTT We live in an age oftechnology and computer use where e-mailcommunication now is a normal and fre-quent fact for the majority of the nation’spopulation and is of particular importancein the professional worldTTTT Absent spe-cific evidence showing alteration, however,the Court will not exclude any embeddede-mails because of the mere possibility thatit can be done.’’

Id. at 41. Notably, the court did not engagein the demanding business records exception

analysis that was done by the courts in Ram-bus and New York v. Microsoft.

Perhaps the most demanding analysis re-garding the admissibility of electronic evi-dence under the business record exception tothe hearsay rule appears in In re VeeVinhnee, 336 B.R. at 445. In this case theappellate bankruptcy panel upheld the trialbankruptcy judge’s exclusion of electronicbusiness records, observing that ‘‘early ver-sions of computer foundations [accepted bycourts] were too cursory, even though thebasic elements [of the business records ex-ception] covered the ground.’’ The courtheld that the proponent of an electronic busi-ness record was required to show that thepaperless electronic record retrieved from itscomputer files was the same one as original-ly had been entered into its computer, notingthat the ‘‘focus is not on the circumstances ofthe creation of the record, but rather on thecircumstances of the preservation of the rec-ord during the time it is in the file so as toassure that the document being proffered isthe same as the document that originallywas created.’’ Id. at 444. It added ‘‘[t]helogical questions extend beyond the identifi-cation of the particular computer equipmentand programs used. The entity’s policiesand procedures for the use of the equipment,database, and programs are important.How access to the pertinent database is con-trolled and, separately, how access to thespecific program is controlled are importantquestions. How changes in the database arelogged or recorded, as well as the structureand implementation of backup systems andaudit procedures for assuring the continuingintegrity of the database, are pertinent tothe questions of whether records have beenchanged since their creation.’’ Id. at 445.The court reasoned that the ‘‘complexity ofever-developing computer technology neces-sitates more precise focus,’’ because ‘‘digitaltechnology makes it easier to alter text ofdocuments that have been scanned into adatabase, thereby increasing the importanceof audit procedures designed to assure thecontinuing integrity of the records.’’ Id.

In contrast to the demanding approachtaken in In re Vee Vinhnee, many othercourts have admitted electronic business rec-

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ords under a much more relaxed standard.See, e.g., United States v. Kassimu, 2006 WL1880335 (5th Cir.2006) (Establishing thefoundation for a computer generated busi-ness record did not require the maker of therecord, or even a custodian, but only a wit-ness qualified to explain the record keepingsystem of organization.); United States v.Fujii, 301 F.3d 535 (7th Cir.2002) (holdingthat computerized check-in and reservationrecords were admissible as business recordson a showing that the data reflected in theprintouts was kept in the ordinary course ofthe business); Sea–Land, 285 F.3d 808 (hold-ing that copy of electronic bill of lading hadbeen properly admitted as a business recordbecause it had been produced from the sameelectronic information that had been contem-poraneously generated when the parties en-tered into their contract. The court notedthat ‘‘it is immaterial that the business rec-ord is maintained in a computer rather thanin company books.’’ (citation omitted)); Wap-nick v. Commissioner of Internal Revenue,T.C. Memo.2002–45, 2002 WL 215993(T.C.2002)(computerized accounting recordswere admissible as business records becausefoundation was established by IRS agentswho compared the data in the computer rec-ords with information in the company’s taxreturns, bank statements, and by contactingclients of the company to verify informationin the computerized records).

The lesson to be taken from these cases isthat some courts will require the proponentof electronic business records or e-mail evi-dence to make an enhanced showing in addi-tion to meeting each element of the businessrecords exception. These courts are con-cerned that the information generated foruse in litigation may have been altered,changed or manipulated after its initial input,or that the programs and procedures used tocreate and maintain the records are not reli-able or accurate. Others will be content toview electronic business records in the samelight as traditional ‘‘hard copy’’ records, andrequire only a rudimentary foundation. Un-less counsel knows what level of scrutiny willbe required, it would be prudent to analyzeelectronic business records that are essentialto his or her case by the most demandingstandard. The cases further suggest that

during pretrial discovery counsel should de-termine whether opposing counsel will objectto admissibility of critical documents. Thiscan be done by requesting a stipulation, orby propounding requests for admission offact and genuineness of records under FED.

R.CIV.P. 36. If it is known that opposingcounsel will object, or refuses to stipulate, ordenies a Rule 36 request to admit genuine-ness, then the lawyer intending to introducethe electronic business record should be pre-pared to establish the business record excep-tion under the most demanding standard re-quired, to avoid exclusion of the evidence.

Rule 803(8) Public Records.

In addition to the above described hearsayexceptions, courts have found that electronicrecords also met the requirements of thepublic records exception under Rule 803(8):

‘‘(8) Public records and reports. Records,reports, statements, or data compilations,in any form, of public offices or agencies,setting forth (A) the activities of the officeor agency, or (B) matters observed pursu-ant to duty imposed by law as to whichmatters there was a duty to report, exclud-ing, however, in criminal cases mattersobserved by police officers and other lawenforcement personnel, or (C) in civil ac-tions and proceedings and against the Gov-ernment in criminal cases, factual findingsresulting from an investigation made pur-suant to authority granted by law, unlessthe sources of information or other circum-stances indicate lack of trustworthiness.’’

Furthermore, ‘‘[j]ustification for the excep-tion is the assumption that a public officialwill perform his duty properly, and the un-likelihood that he will remember details inde-pendently of the record.’’ FED.R.EVID. 803(8)advisory committee’s note. Moreover,‘‘[s]ince the assurances of accuracy are gen-erally greater for public records than forregular business records, the proponent isusually not required to establish their admis-sibility through foundation testimonyTTTT

The burden of proof concerning the admissi-bility of public records is on the party oppos-ing their introduction.’’ WEINSTEIN at§ 803.10[2]. Courts have applied this defer-ential standard of admissibility for electronic

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public records. See, e.g., EEOC v. E.I. Du-Pont de Nemours and Co., 2004 WL 2347556(holding that table of information compiledby U.S. Census Bureau was admissible as anexception to the hearsay rule as a publicrecord under Rule 803(8), and rejectingclaims that the posting of data on the CensusBureau’s website rendered it untrustworthy);Lester v. Natsios, 290 F.Supp.2d 11 (D.D.C.2003) (admitting e-mail of public agency, andnoting that ‘‘[r]ecords of public agencies suchas those challenged by plaintiff are generallyadmissible TTT under FED.R.EVID. 803(8).’’);United States v. Oceguerra–Aguirre, 70 Fed.Appx. 473 (9th Cir.2003) (Court held thattrial court properly admitted computerizedrecords of Treasury Enforcement Communi-cations System as public records under Rule803(8) because documents falling under thepublic records exception are presumed to betrustworthy, and the burden is on the partychallenging the records to establish untrust-worthiness.)

Rule 803(17) Market Reports, CommercialPublications.

Rule 803(17) recognizes as an exception tothe hearsay rule:

‘‘(17) Market reports, commercial publica-tions. Market quotations, tabulations,lists, directories, or other published compi-lations, generally used and relied upon bythe public or by persons in particular occu-pations.’’

This exception covers ‘‘lists, etc., preparedfor the use of a trade or profession TTT

newspaper market reports, telephone direc-tories, and city directories. The basis oftrustworthiness is general reliance by thepublic or by a particular segment of it, andthe motivation of the compiler to foster reli-ance by being accurate.’’ FED.R.EVID.

803(17) advisory committee’s note; WEIN-

STEIN at § 803. 19[1].53 At least one courthas admitted electronically stored compila-tions and directories under Rule 803(17). El-liott Assoc. L.P. v. Banco de la Nacion, 194

F.R.D. 116, 121 (S.D.N.Y.2000) (finding thatplaintiff’s expert report properly relied onprime rates of interest obtained from Feder-al Reserve Board website because they werereliable under Rule 803(17)).

A final observation needs to be made re-garding hearsay exceptions and electronicevidence. Rule 802 generally prohibits theadmission of hearsay unless one of the excep-tions in Rules 803, 804 or 807 apply. What,then, is the effect of hearsay evidence that isadmitted without objection by the partyagainst whom it is offered? The general ruleis that despite Rule 802, if hearsay is admit-ted without objection it may be afforded its‘‘natural probative effect, as if it were in lawadmissible.’’ New York v. Microsoft, 2002WL 649951 (‘‘[I]n this country the generalrule supported by overwhelming weight ofauthority is that where ordinarily inadmissi-ble hearsay evidence is admitted into evi-dence without objection it may properly beconsidered and accorded its natural proba-tive effect, as if it were in law admissible.’’);3 MICHAEL H. GRAHAM, HANDBOOK OF FEDER-

AL EVIDENCE § 802.1 (5th ed. 2001) (‘‘In theabsence of an objection to hearsay ‘the jurymay consider [the hearsay] for whatever nat-ural value it may have; such evidence is tobe given its natural probative effect as if itwere in law admissible.’ ’’ (citation omitted)).This underscores the need to pay attentionto exhibits offered by an opponent, as muchas to those records that you need to intro-duce. A failure to raise a hearsay objectionmeans that the evidence may be consideredfor whatever probative value the finder offact chooses to give it.

In summary, when analyzing the admissi-bility of ESI for hearsay issues, counselshould address each step of the inquiry inorder: does the evidence contain a state-ment, made by a person, which is offered forits substantive truth, but which does not fallinto the two categories of statements identi-fied in 801(d)(1) and 801(d)(2). If, as a resultof this analysis, a determination is made that

53. ‘‘[T]he admissibility of market reports andcommercial publications under Rule 803(17) ispredicated on the two factors of necessity andreliability. Necessity lies in the fact that if thisevidence is to be obtained it must come from thecompilation, since the task of finding every per-

son who had a hand in making the report or listwould be impossible. Reliability is assured be-cause the compilers know that their work will beconsulted; if it is inaccurate, the public or thetrade will cease consulting their product.’’ (cita-tion omitted).

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the evidence is hearsay, then it is inadmissi-ble unless it covered by one of the exceptionsfound in Rules 803, 804 and 807.

If ESI has cleared the first three hurdlesby being shown to be relevant, authentic, andadmissible under the hearsay rule or an ex-ception thereto, it must also be admissibleunder the original writing rule before it canbe admitted into evidence or considered atsummary judgment.

The Original Writing Rule,Rules 1001–1008

The next step in evaluating the admissibili-ty of electronic evidence is to analyze issuesassociated with the original writing rule,which requires an original or duplicate origi-nal to prove the contents of a writing, record-ing or photograph unless secondary evidenceis deemed acceptable.54 See FED.R.EVID.

1001–08. The best way to understand therule is to appreciate its structure. Rule 1001contains the key definitions that animate therule: ‘‘original,’’ ‘‘duplicate,’’ ‘‘writing,’’ ‘‘re-cording,’’ and ‘‘photograph.’’ The substan-tive requirements of the original writing ruleare succinctly provided by Rule 1002, whichmandates that ‘‘[t]o prove the content of awriting, recording, or photograph, the origi-nal writing, recording, or photograph is re-quired, except as otherwise provided in theserules or by Act of Congress.’’ It is Rule1002 that gives the rule its modern name, the‘‘original writing rule,’’ as it requires theoriginal to prove the contents of a writing,recording or photograph, except as excusedby the remaining rules in Article X of therules of evidence. As will be seen, the key tothe rule is to determine when ‘‘the contents’’of a writing, recording or photograph actual-ly are being proved, as opposed to provingevents that just happen to have been record-ed or photographed, or those which can beproved by eyewitnesses, as opposed to awriting or recording explaining or depicting

them. Rule 1003 essentially provides thatduplicates are co-extensively admissible asoriginals, unless there is a genuine issue asto the authenticity of the original, or thecircumstances indicate that it would be unfairto admit a duplicate in lieu of an original.People v. Huehn, 53 P.3d 733, 738 (Colo.Ct.App.2002) (duplicates of computer generatedbank records admissible to the same extentas an original absent unfairness or lack ofauthenticity). Because of Rule 1003, dupli-cates are more often admitted into evidencethan originals. RICE at 192 (‘‘As a practicalmatter, Fed.R.Evid. 1003 has eliminated bestevidence objections. Copies from the pagesof books, treatises, and the other papers arenow introduced in place of the entire volumebecause photocopies of originals are now ad-missible as if they were the original.’’). Rule1004 is the primary rule that identifies whensecondary evidence is admissible. As a prac-tical matter, ‘‘secondary evidence’’ is anyproof of the contents of a writing, recordingor photograph other than an original or du-plicate. Examples include testimony fromthe author of the writing, or someone whoread it, earlier drafts, copies, or an outlineused to prepare the final. Rule 1005 de-scribes how to prove the contents of publicrecords, since it is obvious that somethingother than the original must be used. Rule1006 permits introduction into evidence ofwritten or testimonial summaries of volumi-nous writings, recordings or photographs,provided the original or duplicates fromwhich the summaries were prepared weremade available to the adverse party at areasonable time in advance of trial for exami-nation or copying. Thus, Rule 1006 is anexample of secondary evidence. Rule 1007allows the proof of the contents of a writing,recording or photograph by the deposition ortestimony of a party opponent, without hav-ing to account for the nonproduction of theoriginal. This is another form of secondary

54. Traditionally the rule has been referred to asthe ‘‘Best Evidence Rule,’’ which is a misleadingtitle. The rule is more accurately is referred toas the ‘‘Original Writing Rule’’ because it doesnot mandate introduction of the ‘‘best’’ evidenceto prove the contents of a writing, recording orphotograph, but merely requires such proof byan ‘‘original,’’ ‘‘duplicate’’ or, in certain instanc-es, by ‘‘secondary evidence’’—any evidence that

is something other than an original or duplicate(such as ‘‘testimony, or a draft of a writing toprove the final version, if no original or duplicateis available.’’) FED.R.EVID. 1001 advisory com-mittee’s note; RICE at 190 (‘‘Article X of theFederal Rules of Evidence codified the commonlaw best evidence rule, terming it instead theoriginal writing rule.’’).

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evidence. The final rule in Article X of theFederal Rules of Evidence is Rule 1008. Itis a specialized application of Rule 104(b)—the conditional relevance rule—and sets forthwhat must happen when there is a disputeregarding whether there ever was a writing,recording, or photograph, or when there areconflicting versions of duplicates, originals, orsecondary evidence offered into evidence. Insuch instances, as in Rule 104(b), the jurydecides the factual dispute. FED.R.EVID.

1008 advisory committee’s note.

It has been acknowledged that the originalwriting rule has particular applicability toelectronically prepared or stored writings,recordings or photographs. One respectedcommentator has observed:

‘‘Computer-based business records com-monly consist of material originally pro-duced in a computer (e.g. business memo-randa), data drawn from outside sourcesand input into the computer (e.g. invoices),or summaries of documents (e.g. statisticalruns). The admissibility of computer-based records ‘to prove the content of awriting’ is subject to the best evidence ruleset out in Rule 1002. The rule generallyrequires the original of a writing when thecontents are at issue, except that a ‘dupli-cate’ is also admissible unless a genuineissue is raised about its authenticity. Aduplicate includes a counterpart producedby ‘electronic re-recording, which accurate-ly reproduces the original.’ Courts oftenadmit computer-based records withoutmaking the distinction between originalsand duplicates.’’

WEINSTEIN at § 900.07[1][d][iv] (citationomitted).

When analyzing the original writing ruleas it applies to electronic evidence, the mostimportant rules are Rule 1001, containing thedefinitions; Rule 1002, the substantive origi-nal writing rule; Rule 1004, the ‘‘primary’’secondary evidence rule; Rule 1006, the rulepermitting summaries to prove the contentsof voluminous writings, recordings and pho-tographs; and Rule 1007, allowing proof of awriting, recording or photograph by the ad-mission of a party opponent.

Rule 1001 states:

‘‘For purposes of this article the followingdefinitions are applicable:(1) Writings and recordings. ‘‘Writings’’and ‘‘recordings’’ consist of letters, words,or numbers, or their equivalent, set downby handwriting, typewriting, printing, pho-tostating, photographing, magnetic im-pulse, mechanical or electronic recording,or other form of data compilation.(2) Photographs. ‘‘Photographs’’ includestill photographs, X-ray films, video tapes,and motion pictures.(3) Original. An ‘‘original’’ of a writing orrecording is the writing or recording itselfor any counterpart intended to have thesame effect by a person executing or issu-ing it. An ‘‘original’’ of a photograph in-cludes the negative or any print therefrom.If data are stored in a computer or similardevice, any printout or other output reada-ble by sight, shown to reflect the dataaccurately, is an ‘‘original.’’(4) Duplicate. A ‘‘duplicate’’ is a counter-part produced by the same impression asthe original, or from the same matrix, orby means of photography, including en-largements and miniatures, or by mechani-cal or electronic re-recording, or by chemi-cal reproduction, or by other equivalenttechniques which accurately reproducesthe original.’’

It is apparent that the definition of ‘‘writ-ings, recordings and photographs’’ includesevidence that is electronically generated andstored. See FED. RULE EVID. 1001 advisorycommittee’s note (‘‘Traditionally the rule re-quiring the original centered upon accumula-tions of data and expressions affecting legalrelations set forth in words and figures.This meant that the rule was one essentiallyrelated to writings. Present day techniqueshave expanded methods of storing data, yetthe essential form that the information ulti-mately assumes for useable purposes iswords and figures. Hence, the consider-ations underlying the rule dictate its expan-sion to include computers, photographic sys-tems, and other modern developments.’’). Itfurther is clear that under Rule 1001(3) the‘‘original’’ of information stored in a comput-er is the readable display of the informationon the computer screen, the hard drive or

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other source where it is stored, as well asany printout or output that may be read, solong as it accurately reflects the data.WEINSTEIN at § 900.07[1][d][iv]; RICE at 194;Laughner v. State, 769 N.E.2d 1147, 1159(Ind.Ct.App.2002) (ruling that content of in-ternet chat room communications betweendefendant and undercover police officer thatofficer ‘‘cut-and-pasted’’ into a word process-ing program were originals under state ver-sion of original writing rule). Moreover, if acomputer record accurately reflects the con-tents of another writing, and was preparednear the time that the original writing wasprepared, it may qualify as an original underRule 1001. In re Gulph Woods Corp., 82B.R. 373, 377 (Bankr.E.D.Pa.1988) 55. Seealso WEINSTEIN at § 900.07[1][d][iv]. Finally,as already noted, as a result of Rule 1003,the distinction between duplicates and origi-nals largely has become unimportant, as du-plicates are co-extensively admissible as orig-inals in most instances.

Once the definitions of the original writingrule are understood, the next important de-termination is whether the rule applies at all.Rule 1002 answers this question. It pro-vides: ‘‘To prove the content of a writing,recording, or photograph, the original writ-ing, recording, or photograph is required,except as otherwise provided in these rulesor by Act of Congress.’’ As the advisorycommittee’s note to Rule 1002 makes clear:

‘‘Application of the rule requires resolutionof the question whether contents aresought to be proved. Thus an event maybe proved by non-documentary evidence,even though a written record of it wasmade. If, however, the event is sought tobe proved by the written record, the ruleapplies. For example, payment may beproved without producing the written re-

ceipt which was given. Earnings may beproved without producing books of accountin which they are entered. Nor does therule apply to testimony that books or rec-ords have been examined and found not tocontain any reference to a designated mat-ter.The assumption should not be made thatthe rule will come into operation on everyoccasion when use is made of a photographin evidence. On the contrary, the rule willseldom apply to ordinary photographsTTTT

On occasion, however, situations arise inwhich contents are sought to be proved.Copyright, defamation, and invasion of pri-vacy by photograph or motion picture fallsinto this category. Similarly, as to situa-tions in which the picture is offered ashaving independent probative value, e.g.automatic photograph of bank robber, pho-tograph of defendant engaged in indecentact.’’

FED.R.EVID. 1002, advisory committee’s note(citations omitted); see also WEINSTEIN at§ 1002.05[1] (‘‘The best evidence rule onlyapplies when the writing, recording or photo-graph is being introduced ‘to prove the con-tent of a writing, recording or photograph’.The rule is inapplicable when content is notat issue.’’)(citing FED.R.EVID. 1002). Wheth-er the content is at issue is determined on acase-by-case basis. Id. For example, proofthat someone is married may be made by thetestimony of a witness to the ceremony. Themarriage license is not required. However,the rule applies if the only proof of themarriage is by the record itself. Similarly,someone who heard a politician give a speechmay testify to what was said without thevideo recording of the speech, because thecontent of the recording is not at issue. Incontrast, if the only way to prove the contentof the speech is by the video, because there

55. ‘‘In today’s commercial world, a single trans-action often generates successive entries of thesame information in separately prepared writ-ings. Though the purposes of these separaterecords may be different, a computerized busi-ness record, prepared simultaneously with orwithin a reasonable time period of the writtenrecord, and containing the same or similar infor-mation, would appear to be no less an ‘original’than a handwritten record. However, it seemsequally clear that where a written record, pre-pared prior to the computer record, contains a

more detailed and complete description of thetransaction than that contained in the computerrecord, the proponent of the evidence should berequired to produce the more detailed record, oraccount for its nonproduction under F.R.E.1004. Similarly, where a computerized recordappears to be nothing more than a summary of amore detailed written record, the written recordshould be produced except where the require-ments of F.R.E. 1006 have been satisfied.’’ (cita-tions omitted).

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are no witnesses available to testify, the rulewould apply to the video recording.

Rule 1002 also does not apply when anexpert testifies based in part on having re-viewed writings, recordings or photographs,because Rule 703 allows an expert to expressopinions based on matters not put into evi-dence. FED.R.EVID. 1002 advisory commit-tee’s note; WEINSTEIN at § 1002.05[1] (‘‘Thebest evidence rule does not apply when anexpert resorts to material as a basis for anopinion.’’). Finally, when the contents ofwritings, recordings or photographs merelyare collateral to the case, meaning they arenot ‘‘closely related to a controlling issue’’ ina case, Rule 1002 does not apply, and second-ary evidence may be used to prove theircontents. FED.R.EVID. 1004(4). In contrast,proving legal transactions, such as wills, con-tracts, and deeds commonly do involve thebest evidence rule because the documentsthemselves have the central legal significancein the case. WEINSTEIN at § 1002.05[2].

An example of when the original writingrule did apply to electronic evidence isLaughner v. State, 769 N.E.2d 1147 (Ind.Ct.App.2002), abrogated on other grounds byFajardo v. State, 859 N.E.2d 1201 (Ind.2007).Laughner was charged with attempted childsolicitation. To prove the crime, the stateoffered printouts of instant message chatsbetween the defendant and an undercoverpolice officer posing as a thirteen year oldboy. The police officer ‘‘cut-and-pasted’’ thetext of the text messages from the internetchat room into a word processing program,and the printouts that were introduced intoevidence were prepared from that program.The defendant objected (citing the state ver-sion of the original writing rule, which wasidentical to the federal version), arguing thatthe printouts were not the ‘‘original’’ of thetext of the chat room communications. Theappellate court agreed that the state wasproving the content of a writing, and that theoriginal writing rule required an original, butfound that the printout was an original, rea-soning:

‘‘Evidence Rule 1002, the ‘best evidence’rule, requires an ‘original’ in order toprove ‘the content’ of a writing or record-ing. However, Evidence Rule 1001(3) pro-

vides that when ‘data are stored in a com-puter or similar device, any printout orother output readable by sight, shown toreflect the data accurately is an ‘original.’According to [the police officer] he savedthe conversations with Laughner afterthey were concluded, and the printout doc-ument accurately reflected the content ofthose conversations. Therefore, the print-outs could be found to be the ‘best evi-dence’ of the conversations [between thedefendant and the officer].’’

Laughner, 769 N.E.2d at 1159.

It is important to keep in mind that failureto properly object to the introduction of evi-dence in violation of the original writing rulelikely will result in a waiver of the error onappeal. WEINSTEIN at § 1002.04[5][a] (‘‘Pro-cedural safeguards adopted by federal courtsalso militate against an overtechnical applica-tion of the best evidence rule. For example,an appellant’s failure to properly raise anobjection to the best evidence rule at trialwill result in waiver of the error on appeal.’’);see also State v. Braidic, 119 Wash.App.1075, 2004 WL 52412 (2004) (Defendant wasconvicted of rape and other sex offenses withminor. At trial, victim’s mother testified,without objection, to content of chat roomtext messages between defendant and victim.Appellate court noted applicability of originalwriting rule to require original to prove thecontents of the chat room records, but foundthat defense counsel’s failure to object didnot constitute ineffective assistance of coun-sel). Counsel need to insure that a timelyobjection is made to attempts to prove thecontents of electronic writings, recordings orphotographs in violation of the original writ-ing rule, otherwise waiver of the error is theprobable consequence.

Rule 1004 identifies four circumstances inwhich secondary evidence may be introducedinstead of an original. The rule provides:

‘‘The original is not required, and otherevidence of the contents of a writing, re-cording, or photograph is admissible if—

(1) Originals lost or destroyed. All origi-nals are lost or have been destroyed, un-less the proponent lost or destroyed themin bad faith; or

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(2) Original not obtainable. No originalcan be obtained by any available judicialprocess or procedure; or(3) Original in possession of opponent. Ata time when an original was under thecontrol of the party against whom offered,that party was put on notice, by the plead-ings or otherwise, that the contents wouldbe a subject of proof at the hearing, andthat party does not produce the original atthe hearing; or(4) Collateral matters. The writing, re-cording, or photograph is not closely relat-ed to a controlling issue.’’

The first example may be particularly suit-ed for electronic evidence. Given the myriadways that electronic records may be deleted,lost as a result of system malfunctions,purged as a result of routine electronic rec-ords management software (such as the auto-matic deletion of e-mail after a set timeperiod) or otherwise unavailable means thatthe contents of electronic writings may haveto be proved by secondary evidence.56 In-deed, at least one court has recognized thatthe ‘‘tenuous and ethereal nature of writingsposted in internet chat rooms and messageboards means that in all likelihood the excep-tions [to the original writing rule that permitsecondary evidence] would TTT [apply].’’Bidbay.com, Inc. v. Spry, 2003 WL 723297(Cal.App.2003)(unpublished opinion); Peoplev. Huehn, 53 P.3d 733, 738 (Colo.Ct.App.2002) (holding that trial court did not abusediscretion in admitting computer generatedbank records that contained listing of ATMtransactions prepared by another companythat bank retained to process ATM transac-tions. The court noted that the Coloradoversion of Rule 1004(1) permitted secondaryevidence of the records provided they werenot lost or destroyed in bad faith).

Additionally, Rule 1004 permits proof ofthe contents of a writing, recording or photo-graph by secondary evidence when the pro-ponent of the evidence is unable to obtain an

original through use of legal process, or whenthe original is in the possession or control ofan adverse party that has actual or inquirynotice of the contents that the proponentintends to introduce the evidence. In thelater circumstance, as the advisory commit-tee’s note to Rule 104(3) points out, ‘‘[a]party who has an original in his control hasno need for the protection of the [originalwriting] rule if put on notice that proof ofcontents will be made. He can ward offsecondary evidence by offering the original.’’

Finally, Rule 1004(4) permits proof of thecontents of writings, recordings of photo-graphs by secondary evidence if they relateto ‘‘collateral matters,’’ defined as ‘‘not close-ly related to a controlling issue’’ in the case.The advisory committee’s note to Rule1004(4) candidly acknowledges that this is anebulous standard, stating ‘‘[w]hile difficultto define with precision, situations arise inwhich no good purpose is served by produc-tion of the original.’’ See also WEINSTEIN at§ 1004.40 (‘‘[t]he distinction between control-ling and collateral issues can be an exasper-ating one. The term ‘collateral’ is elusiveand vague. It cannot be defined conceptual-ly, only pragmatically: balancing the impor-tance of the document against the inconven-ience of compelling its production, is the ruleworth enforcing?’’) (citation omitted). An ex-ample illustrates. A doctor testifying as anexpert in a personal injury case can testifythat she is licensed to practice medicine in astate without having to produce the licenseitself. However, if a defendant is chargedwith practicing medicine without a license,his testimony alone that he has a licensefrom the state will not be accepted, as thelicense is closely related to a controlling issuein the case.

Rule 1006 recognizes another source ofsecondary evidence to prove the contents ofwritings, recordings, or photographs, stating:

56. See, for example. newly revised Fed.R.Civ.P.37(f), which creates a limited ‘‘safe harbor’’ fromsanctions if electronically stored information isnot preserved as a result of the routine good faithoperation of an electronic records managementsystem. Sanctions may be imposed if the courtfinds the presence of ‘‘extraordinary circum-

stances’’ or if it determines that the loss of theESI was the result of non-routine loss or destruc-tion, or action taken in the absence of good faith.The new rule evidences the widespread recogni-tion that electronically stored information is notinfrequently lost or destroyed.

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‘‘The contents of voluminous writings, re-cordings, or photographs which cannotconveniently be examined in court may bepresented in the form of a chart, summary,or calculation. The originals, or dupli-cates, shall be made available for examina-tion or copying, or both, by other partiesat reasonable time and place. The courtmay order that they be produced in court.’’

The advisory committee’s note recognizesthat Rule 1006 is one of necessity, as the‘‘admission of summary of voluminous books,records, or documents offers the only practi-cable means of making their contents avail-able to judge and jury.’’ A number of ob-servations may be made about the use ofsummaries under Rule 1006. First, as therule expressly states, the writings, record-ings or photographs to be summarized mustbe voluminous. WEINSTEIN at § 1006.03(‘‘Charts, summaries or calculations are,however, inadmissible when the content be-ing proved is neither voluminous or compli-cated.’’) (citations omitted). Second, al-though the rule is silent on the nature of thesummary, the prevailing view is that it maybe either written, or testimonial. Id. at§ 1006.05[2] (‘‘[s]ummary evidence need notbe an exhibit, but may take the form of awitness’s oral testimony.’’). Third, the ma-jority view is that the summaries themselvesconstitute the evidence of the contents of thematerials summarized, rather than the un-derlying writings, recordings or photo-graphs. Id. at § 1006.04[1] (‘‘[t]he majorityrule is that the summary itself is the evi-dence to be considered by the factfinderwhen the underlying documents are volumi-nous and the other requirements of Rule1006 are met. Other decisions, however,have held that Rule 1006 summaries werenot evidence, and that the jury should be soinstructed.’’). Fourth, if the summaries areaccepted as the evidence of the materialssummarized, they function as the equivalentof a special exception to the hearsay rule.Id. at § 1006.05[4] (‘‘Rule 1006 should beregarded as a special exception to the hear-say rule.’’); RICE at 197–98 (Recognizingthat summaries of voluminous materials thatare introduced to prove the content of thesummarized material creates a hearsayproblem. The author suggests that the re-

sidual hearsay rule, Rule 807, is an exceptionthat may apply to overcome this problem).Fifth, the writings, recordings and photo-graphs that are summarized must be madeavailable to the adverse party for examina-tion or copying reasonably in advance of theuse of the summary, a requirement thatoriginates from Rule 1006 itself, regardlessof whether the adverse party has served arequest for production of documents underFED.R.CIV.P. 34. WEINSTEIN at § 1006.06[1](‘‘the originals or duplicates of voluminouswritings, recordings, or photographs must bemade available for examination or copying ata reasonable time or place in order for sum-mary evidence to be admissible. The rightto examine the underlying records is abso-lute. Thus, the records must be made avail-able whether or not the opposing partymakes a discovery request for inspection.’’).Sixth, the underlying materials from whichthe summaries are made must themselves beadmissible into evidence. Id. at § 1006.06[3](‘‘Charts, summaries and calculations areonly admissible when based on original orduplicate materials that are themselves ad-missible evidence.’’).

Because the production of electronicallystored information in civil cases frequently isvoluminous, the use of summaries under Rule1006 is a particularly useful evidentiary tool,and courts can be expected to allow the useof summaries provided the procedural re-quirements of the rule are met. See, e.g.,Wapnick v. Comm’r of Internal Revenue,T.C. Memo. 2002–45, (T.C.2002) (holding thatsummaries of voluminous computer recordswere admissible under Rule 1006 eventhough they were prepared in anticipation oflitigation, because the underlying documentshad been admitted into evidence and reason-ably had been made available to the opposingparty to inspect).

Rule 1007 identifies another, though littleused, way in which secondary evidence maybe used to prove the contents of electronical-ly prepared or stored information. It pro-vides that the:

‘‘[c]ontents of writings, recordings, or pho-tographs may be proved by the testimonyor deposition of the party against whomoffered or by that party’s written admis-

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sion, without accounting for the nonpro-duction of the original.’’

On its face this rule is limited to admissionsby a party opponent regarding the content ofa writing, recording or photograph. Use ofthe word ‘‘admission’’ refers to any of thetypes of admissions covered by Rule801(d)(2), which includes admissions by arepresentative, agent, employee or co-con-spirator that meets the requirements of Rule801(d)(2) for each of these types of admis-sions. WEINSTEIN at § § 1007.03[1], 1007.06.It does not require that any showing bemade that the writing, recording or photo-graph is lost or otherwise unavailable. Id. at§ 1007.04[1]. Further, the rule expressly lim-its the types of admissions that may be usedto prove the contents of writings, recordingsor photographs to those obtained during incourt testimony, during a deposition, or bythe adverse party’s written admission.57 Id.at § 1007.04. An adverse party’s answers tofederal rule of civil procedure Rule 33 inter-rogatories or a Rule 36 request to admit thegenuineness of documents would meet theprovisions of Federal Rule of Evidence 1007regarding a ‘‘written admission.’’ Id. at§ 1007.07 (‘‘[A]n adverse party’s responses towritten interrogatories made pursuant toFederal Rule of Civil Procedure 33 are ad-missible to prove content. Similarly, an ad-verse party’s responses to requests for ad-missions made pursuant to Federal Rule ofCivil Procedure 36, are admissible to provecontents.’’).

Because Rule 1007 so seldom is used ordiscussed in cases, most lawyers are unawareof it. However, given the frequency withwhich deponents are asked questions aboutthe content of writings, recordings and pho-tographs, it is prudent to remember that ifthe deponent is a person whose testimonywould qualify as an admission under any ofthe five varieties recognized by Rule

801(d)(2), then the deposition testimony maybe admitted to prove the contents of thewritings, recordings and photographs de-scribed. The same is true for written re-sponses to FED.R.CIV.P. 33 and 36 discoverythat asks for a description of the contents ofa writing, recording or photograph. Theneed is obvious, therefore, to insure that anycharacterization of the contents of a writing,recording or photograph that could fall with-in Rule 1007 be accurate.

Rule 1008 is the last of the rules in ArticleX of the rules of evidence. It states:

‘‘When the admissibility of other evidenceof contents of writings, recordings, or pho-tographs under these rules depends uponthe fulfillment of a condition of fact, thequestion whether the condition has beenfulfilled is ordinarily for the court to deter-mine in accordance with the provisions ofrule 104. However, when an issue israised (a) whether the asserted writingever existed, or (b) whether another writ-ing, recording, or photograph produced atthe trial is the original, or (c) whetherother evidence of contents correctly re-flects the contents, the issue is for the trierof fact to determine as in the case of otherissues of fact.’’

This rule is a specialized application of Rule104(b), and it allocates responsibility betweenthe trial judge and the jury with respect tocertain preliminary matters affecting theoriginal writing rule. As the advisory com-mittee’s note to Rule 1008 states:

‘‘Most preliminary questions of fact in con-nection with applying the rule preferringthe original as evidence of contents are forthe judge, under the general principlesannounced in Rule 104[a]. Thus, the ques-tion whether the loss of the originals hasbeen established, or of the fulfillment ofother conditions specified in Rule 1004,

57. However, despite the limitation in Rule 1007to testimonial or written admissions of a partyopponent, a non-testimonial oral admission by aparty opponent would still be admissible as sec-ondary evidence to prove the contents of a writ-ing, recording or photograph under Rule 1004 ifthe writing, recording or photograph was lost ofdestroyed, absent bad faith, beyond the reach ofcourt ordered production, in the possession, cus-tody of control of the adverse party, or if the

writing, recording or photograph was not closelyrelated to a controlling issue in the litigation.FED.R.EVID. 1007 advisory committee’s note (‘‘Thelimitation [of] Rule 1007 to testimonial or writ-ten admissions, of course, does not call for ex-cluding evidence of an oral admission when non-production of the original has been accountedfor and secondary evidence generally has be-come admissible.’’); WEINSTEIN at § 1007.03[1].

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supra, is for the judge. However, ques-tions may arise which go beyond the mereadministration of the rule preferring theoriginal and into the merits of the contro-versy TTT The latter portion of [Rule 1008]is designed to insure treatment of thesessituations as raising jury questions. Thedecision is not one for uncontrolled discre-tion of the jury but is subject to the controlexercised generally by the judge over jurydeterminations. See Rule 104(b).’’

See also WEINSTEIN at § 1008.02[1]–1008.04[5]. Under the rule, the trial judgedetermines: whether originals have been lostor destroyed under Rule 1004(1), as well asall issues relating to the appropriateness ofthe proponent’s efforts to search for the lostoriginal; 58 whether or not the original isobtainable by judicial process, under Rule1004(2); 59 whether the original is in the pos-session, custody or control of the opposingparty under Rule 1004(3); 60 and whether thewriting, recording or photograph relates to acollateral matter, which removes it from thereach of the original writing rule.61

Rule 1008 identifies three issues that arequestions for the jury, however: (1) whetherthe writing, recording or photograph everexisted in the first place; (2) whether someother writing, recording, or photograph thatis offered into evidence is in fact the original;and (3) whether ‘‘other’’ (i.e. secondary) evi-dence of contents correctly reflects the con-tent of the writing, recording or photograph.FED.R.EVID. 1008 advisory committee’s note;WEINSTEIN at § 1008.05[1]. Counsel need tobe aware of the different functions the judgeand jury serve as they anticipate how to offerelectronic writings, recordings and photo-graphs into evidence. Given the challengesthat often are associated with the authentica-tion of electronically created or stored evi-dence, it is not unlikely that there will bedisputes of fact regarding whether an elec-tronic writing ever existed in the first place,if the original cannot be produced and sec-ondary evidence is offered, or when differentversions of the same electronic document areoffered into evidence by the opposing parties.

In summary, when counsel intend to offerelectronic evidence at trial or in support of amotion for summary judgment they mustdetermine whether the original writing ruleis applicable, and if so, they must be pre-pared to introduce an original, a duplicateoriginal, or be able to demonstrate that oneof the permitted forms of secondary evidenceis admissible. In this case, counsel did notaddress the original writing rule, despite itsobvious applicability given that the e-mailexhibits were closely related to a controllingissue and there were proving the contents ofthe e-mails themselves.

The final evidentiary issue that must beconsidered in determining whether electronicevidence will be admitted is whether theprobative value of the evidence is substantial-ly outweighed by the danger of unfair preju-dice, as proscribed under Rule 403 of thefederal rules of evidence.

Balancing Probative Value Against theDanger of Unfair Prejudice Under

Rule 403

After evaluating the issues associated withrelevance, authenticity, hearsay, and theoriginal writing rule, the final step to consid-er with regard to electronically prepared orstored evidence is the need to balance itsprobative value against the potential for un-fair prejudice, or other harm, under Rule 403of the Federal Rules of Evidence. This rulestates:

‘‘Although relevant, evidence may be ex-cluded if its probative value is substantiallyoutweighed by the danger of unfair preju-dice, confusion of the issues, or misleadingthe jury, or by considerations of unduedelay, waste of time, or needless presenta-tion of cumulative evidence.’’

FED.R.EVID. 403. The advisory committeenote to Rule 403 succinctly explains its func-tion:

‘‘[C]ertain circumstances call for the exclu-sion of evidence which is of unquestionedrelevance. These circumstances entail

58. WEINSTEIN at § 1008.04[3]

59. Id. at § 1008.04[4]

60. Id. at § 1008.04[5]

61. Id. at § 1008.04[6]

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risks which range all the way from induc-ing decision on a purely emotional basis, atone extreme, to nothing more harmful thanmerely wasting time, at the other extreme.Situations in this area call for balancingthe probative value of and need for theevidence against the harm likely to resultfrom its admissionTTTT ‘Unfair prejudice’within its context means an undue tenden-cy to suggest decision on an improper ba-sis, commonly, though not necessarily anemotional one.’’

See also WEINSTEIN at § 403.02[1][a].62

A determination of whether evidenceshould be excluded under Rule 403 falls with-in the those made by the court under Rule104(a), but it is used sparingly. WEINSTEIN

at § 403.02[2][a]. Generally, ‘‘[i]f there isdoubt about the existence of unfair prejudice,confusion of issues, misleading, undue delay,or waste of time, it is generally better prac-tice to admit the evidence, taking necessaryprecautions of contemporaneous instructionsto the jury followed by additional admoni-tions in the charge.’’ Id. at § 403.02[2][c].

Although Rule 403 may be used in combi-nation with any other rule of evidence toassess the admissibility of electronic evi-dence, courts are particularly likely to con-sider whether the admission of electronicevidence would be unduly prejudicial in thefollowing circumstances: (1) When the evi-dence would contain offensive or highly de-rogatory language that may provoke an emo-tional response. See Monotype Corp., 43F.3d at 450 (Finding that trial court properlyexcluded an email from a Microsoft employeeunder Rule 403 that contained a ‘‘highly de-rogatory and offensive description of TTT

[another company’s] type director.’’); (2)When analyzing computer animations, to de-termine if there is a substantial risk that thejury may mistake them for the actual eventsin the litigation, Friend v. Time Manufac-turing Co., 2006 WL 2135807 at *7(D.Ariz.2006)(‘‘Therefore, the question issimply whether the animation accuratelydemonstrates the scene of the accident, and

whether the probative value is substantiallyoutweighed by the danger of unfair preju-dice, confusion of the issues, or misleadingthe jury, or by considerations of undue de-lay, waste of time, or needless presentationof cumulative evidence.’’); State v. Sayles,662 N.W.2d 1, 11 (Iowa, 2003) (Appellatecourt found no error in trial court’s admis-sion of computer animation slides showingeffects of shaken infant syndrome, findingthat trial court properly considered stateversion of Rule 403, and admitted evidencewith a cautionary instruction that the evi-dence was only an illustration, not a re-creation of the actual crime); (3) when con-sidering the admissibility of summaries ofvoluminous electronic writings, recordings orphotographs under Rule 1006, WEINSTEIN at§ 1006.08[3] (‘‘Summary evidence is subjectto the balancing test under Rule 403 thatweighs the probative value of evidenceagainst its prejudicial effect.’’); and (4) Incircumstances when the court is concernedas to the reliability or accuracy of the infor-mation that is contained within the electronicevidence, St. Clair v. Johnny’s Oyster andShrimp Inc., 76 F.Supp.2d 773 (S.D.Tx.1999)(Court expressed extreme skepticism regard-ing the reliability and accuracy of informa-tion posted on the internet, referring to itvariously as ‘‘voodoo information’’. Althoughthe court did not specifically refer to Rule403, the possibility of unfair prejudice associ-ated with the admissibility of unreliable orinaccurate information, as well as for confu-sion of the jury, makes Rule 403 a likelycandidate for exclusion of such evidence).

Thus, when a lawyer analyzes the admissi-bility of electronic evidence, he or she shouldconsider whether it would unfairly prejudicethe party against whom it is offered, confuseor mislead the jury, unduly delay the trial ofthe case, or interject collateral matters intothe case. If a lawyer is offering electronicevidence, particularly computer animations,that may draw a Rule 403 objection, he orshe must be prepared to demonstrate whyany prejudice is not unfair, when measuredagainst the probative value of the evidence.

62. ‘‘Rule 403 recognizes that relevance alonedoes not ensure admissibility. A cost/benefitanalysis must often be employed. Relevant evi-dence may be excluded if its probative value isnot worth the problems that its admission may

cause. The issue is whether the search for truthwill be helped or hindered by the interjection ofdistracting, confusing, or emotionally chargedevidence.’’

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585AVANCE v. KERR–MCGEE CHEMICAL LLCCite as 241 F.R.D. 585 (E.D.Tex. 2006)

In this case, counsel did not address whetherRule 403 was implicated with respect to theelectronic evidence attached to their sum-mary judgment memoranda.

Conclusion

[3] In this case the failure of counselcollectively to establish the authenticity oftheir exhibits, resolve potential hearsay is-sues, comply with the original writing rule,and demonstrate the absence of unfair preju-dice rendered their exhibits inadmissible, re-sulting in the dismissal, without prejudice, oftheir cross motions for summary judgment.The discussion above highlights the fact thatthere are five distinct but interrelated evi-dentiary issues that govern whether electron-ic evidence will be admitted into evidence attrial or accepted as an exhibit in summaryjudgment practice. Although each of theserules may not apply to every exhibit offered,as was the case here, each still must beconsidered in evaluating how to secure theadmissibility of electronic evidence to sup-port claims and defenses. Because it can beexpected that electronic evidence will consti-tute much, if not most, of the evidence usedin future motions practice or at trial, counselshould know how to get it right on the firsttry. The Court hopes that the explanationprovided in this memorandum order will as-sist in that endeavor.63

,

June Pryor AVANCE, et al., Plaintiffs,

v.

KERR–MCGEE CHEMICALLLC, Defendant.

No. 5:04CV209.

United States District Court,E.D. Texas,

Texarkana Division.

June 12, 2006.

Background: Plaintiffs brought actionagainst chemical company seeking dam-

ages caused by an alleged exposure tocompany’s creosote and pentachlorophenol.Company moved for separate trials, andplaintiffs filed a motion to name trialgroup, requesting the Court name a trialgroup consisting of five plaintiffs, all ofwhom resided at same address.

Holding: The District Court, Craven,United States Magistrate Judge, held thatplaintiffs in toxic tort litigation would bepermitted to proceed via designated trialgroup, rather than having each plaintiff’sclaims tried separately.

Motion for separate trials denied, and motionto name trial groups granted.

1. Federal Civil Procedure O1954.1

Court has broad discretion under rulesallowing for separate trials to evaluate andseparate parties or claims. Fed.Rules Civ.Proc.Rules 20(b), 42(b), 28 U.S.C.A.

2. Federal Civil Procedure O1956

Plaintiffs in toxic tort litigation would bepermitted to proceed via designated trialgroup, rather than having each plaintiff’sclaims tried separately, using trial group thatincluded all residents of same address, pastand present, in plaintiffs’ action againstchemical company seeking damages causedby an alleged exposure to company’s creosoteand pentachlorophenol, where all residentsallegedly suffered from various forms of can-cer, birth defects, or other serious disorders,all members were of the same family, andtrial group would not necessarily result injuror confusion. Fed.Rules Civ.Proc.Rules20(b), 42(b), 28 U.S.C.A.

Gary A. Lee, John Maurice Futrell, Rich-ard M. Perles, Lee Futrell & Perles LLP,New Orleans, LA, Glenn C. McGovern, Lynn

63. I acknowledge with gratitude the tireless as-sistance of two exceptionally talented law studentinterns, Ms. Puja Gupta and Mr. Ben Peoples,whose assistance in cite checking was invaluable,

and my law clerk, Ms. Kathryn Widmayer, whoconsistently makes the most difficult tasks appeareasy.

E-Discovery | 124

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