July 18, 2011
This is one in a series of brief introductory guides to practical issues in electronic discovery. To subscribe to the E-Discovery Basics series, if you have not already done so, please click here.
In previous installments of E-Discovery Basics, we discussed litigation preparedness, legal holds, preservation, processing, review and production of electronically stored information ("ESI"). In this installment, we discuss what many consider to be the last step in the e-discovery life cycle–admissibility and presentation of ESI to a trier of fact at trial or in other proceedings (for example, in support of a summary judgment motion).
The often considerable work and expense involved in the earlier stages of the e-discovery life cycle could end up being of little value if the ESI that is identified, preserved, collected, processed, reviewed and produced is ultimately inadmissible or not effectively presented. Litigants therefore should think strategically early on so that they handle and manage ESI in a way that ensures its admissibility and effective presentation.
Admissibility: The rules of evidence establish a series of hurdles that ESI usually must overcome before being admitted into evidence:
- Relevance–Does the ESI have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be?
- Authenticity–Is the ESI what it purports to be?
- Hearsay–If offered for its substantive truth, is the ESI hearsay, and, if so, is it covered by an exception to the hearsay rule?
- Original Writing–Is the ESI an original or duplicate under the original writing rule, or, if not, is there admissible secondary evidence to prove the content of the ESI? and
- Probative Value and Unfair Prejudice–Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice, such that it should be excluded despite its relevance?
Of course, all proffered evidence must overcome these hurdles. Authentication, however, usually presents particular challenges for ESI because it can easily be altered, lost or destroyed, including by the routine operations of an information system. Authentication is usually necessary to demonstrate that the ESI being presented is the same (in all relevant respects) as the original ESI. A chain of custody–a record documenting the chronology of the ESI’s custody, control, transfer, and disposition–helps establish that the evidence is what it purports to be, and that it was not, for example, altered, falsified or planted fraudulently.
Particular types of ESI may present unique authentication issues. Properly authenticating email can be important because of inherent risks regarding its reliability. For example, the author of an email can be "spoofed," i.e., the sender of an email uses another’s name and makes the message appear to originate from a different location. Text messages and chats also can present challenges regarding authorship. Texts can be sent by anyone with access to someone’s computer, cell phone, PDA or other device. Chat room content is often posted by individuals using "screen names" or pseudonyms.
Email, texts and chat room content can be authenticated in several ways, most commonly by presenting a witness with personal knowledge of the document. Other methods of authenticating email include expert testimony; showing that distinctive characteristics support its authenticity (for example, its appearance, contents, substance, internal patterns or other distinctive characteristics, combined with the circumstances); and establishing the email as a "business record," (i.e., certified as having been made at or near the time of the matters discussed, kept in the course of a regularly conducted activity, and made as a regular practice of the regularly conducted activity).
The primary authentication issue for dynamic databases and other computer-stored records–particularly those accessible to multiple individuals–is what happened, or may have happened, to the ESI between the time when it was created and the time of its presentation. How changes in the database are logged or recorded can be relevant to this inquiry. The methods of authentication most likely to be appropriate for such records are the testimony of a witness with personal knowledge, expert testimony, evidence of distinctive characteristics, or evidence that the ESI resulted from an automatic process or system.
Presentation: The choice between native and image (also known as "near-paper") format is present not only at the production phase, as we discussed in the installment of E-Discovery Basics regarding production, but also when ESI is being presented to a trier of fact. In a bygone era, exhibits were always presented in paper or static form (for example, in hard copy or projected onto a screen). Now, it is possible to present ESI either in native–the form in which the ESI was created and maintained–or in a static form, such as an image or hard copy. The advantages and disadvantages of presenting evidence in native or an image format should be considered early in the litigation, as choices made in the context of production format may later limit how a party can present the evidence to the trier of fact.
Presenting ESI in native format provides the ability to manipulate the data for demonstration purposes and to present aspects of the data that might otherwise be lost if reduced to static form–such as where evidence requires the running of a program or process; showing formulas in a spreadsheet; or displaying video or sound. Metadata may also be available from native ESI to an extent not generally possible when presenting ESI in a static form. Among the disadvantages of presenting ESI in native format are the difficulty of creating an evidentiary record for the purposes of appeal and the greater need for on-site hardware, software and technical support resources.
The benefits of using a static form of ESI include being potentially simpler and cheaper to present; being easier to authenticate, duplicate and distribute; and needing fewer or none of the hardware and software resources necessary for presenting ESI in native format. The most common methods of reducing ESI to a static form for presentation include printing to hard copy form or creating a flat image, e.g., a .tif or .pdf file.
Some ESI–such as large spreadsheets and dynamic databases– may not be well suited to presentation in an image or hard-copy print out. But there are often ways of working around the challenges these types of ESI pose. For example, parties may extract only the relevant portions of the spreadsheet or database and print those extracts to hard copy (such as printing a screen shot of a database screen). Or, if a witness is being questioned about the structure or organization of data in a database or other compilation, a small sample of the data may be printed and the witness questioned as to whether, and how, the sample is representative of the contents of the database. For spreadsheets that contain formulas, two copies of the spreadsheet can be converted to a static form: one that hides the formulas and reveals only the output of the formulas in each cell, and one that reveals the formulas, but not their output.
This completes our initial overview of the various stages in the e-discovery life cycle. Through the year, we will continue to provide brief guides to important e-discovery issues that companies and their counsel frequently face. We also invite our readers to provide suggestions regarding topics of interest for future installments of E-Discovery Basics. To provide a suggested topic, please click here.
In the next installment of E-Discovery Basics, we will discuss issues that arise in cross-border e-discovery.
Other installments in our E-Discovery Basics series are available here.
If you would like to subscribe to the E-Discovery Basics series, please click here.
Lawyers in Gibson Dunn’s Electronic Discovery and Information Law Practice Group can assist in implementing defensible and proportionate approaches at all stages of the e-discovery process. For further information, please contact the Gibson Dunn lawyer with whom you work or any of the following Chairs of the Electronic Discovery and Information Law Practice Group:
Gareth T. Evans – Practice Co-Chair, Los Angeles/Orange County (213-229-7734, [email protected])
Jennifer H. Rearden – Practice Co-Chair, New York (212-351-4057, [email protected])
G. Charles Nierlich – Practice Co-Chair, San Francisco (415-393-8239, [email protected])
Farrah L. Pepper – Practice Vice-Chair, New York (212-351-2426, [email protected])
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