e-Discovery Docket Sheet

In this action, the plaintiffs brought suit to enforce an arbitrator's award determining that damages to their yacht were the result of a lightning strike, and motioned the court to award a judgment of $36,000. The defendant's insurer counterclaimed, seeking to enforce part of the arbitrator's award, which concluded that damages were limited to $14,100. Both parties filed cross-motions for summary judgment, but each party failed to support its motions with admissible evidence as required under the Rules of Evidence. Specifically, both parties offered copies of e-mail as parol evidence that were attached as exhibits to the summary judgment motions and not authenticated properly. The magistrate judge dismissed both parties' summary judgment motions without prejudice to allow resubmission with proper evidentiary support. The magistrate observed that unauthenticated e-mails are a form of computer-generated evidence that pose evidentiary issues, and that the admissibility of electronically stored information ('ESI') as evidence is determined by 'a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence.' He found that there were 'five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence.' The five issues may not apply to every exhibit, but the magistrate held that each must be considered. ESI, the magistrate ruled, must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the 'best evidence,' and 5) not unduly prejudicial before it can be found to be admissible evidence. Regarding the five issues, the magistrate found that the parties' e-mail exhibits were relevant to the suit but that both parties failed to authenticate the e-mail exhibits because they 'simply attached the exhibits' and the 'complete absence of authentication stripped the exhibits of any evidentiary value because the court could not consider them as evidentiary facts.' The magistrate also found that the parties failed to address the last three hurdles of admissibility. They did not resolve any potential hearsay issues that were likely to arise, nor did they comply with the original-writing requirement or demonstrate the absence of unfair prejudice. After explaining the legal standard for each step of ESI admissibility, the magistrate stated that 'it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on the first try.' Lorraine v. Markel Am. Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007).

Court Implements Maryland's
Suggested Protocol for ESI Discovery