Federal Rule of Evidence 104 governs the process for determining admissibility and must be considered at the outset. The interplay between Rules 104(a) and 104(b), the types of preliminary evidence that can be considered, and the roles of judge and jury can pose challenges in practice. Rule 104(a) provides that inadmissible evidence may be considered in determining preliminary questions of admissibility under Rule 104(a); however, that provision does not extend to determinations of relevancy conditioned on fact under Rule 104(b). In short, the court noted that there is a significant difference between the way Rules 104(a) and 104(b) operate for purposes of admitting ESI. Judge Grimm observes:

…if an e-mail is offered into evidence, the determination of whether it is authentic would be for the jury to decide under Rule 104(b), and the facts that they consider in making this determination must be admissible into evidence. In contrast, if the ruling on whether the e-mail is an admission by a party opponent or a business record turns on contested facts, the admissibility of those facts will be determined by the judge under 104(a), and the Federal Rules of Evidence, except for privilege, are inapplicable.

Five ESI Admissibility Considerations

While the Federal Rules of Evidence do not independently address the admissibility of ESI, five distinct yet interrelated evidentiary issues govern the admission of electronic evidence at trial, or its acceptance as an exhibit during summary judgment.

  • Issue #1 – Relevancy: Is the ESI relevant as determined by Rules 401, 402, and 105? Does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be?
  • Issue #2 – Authenticity: If relevant, is the ESI authentic as required by Rules 901 and 902? Can the proponent show that the ESI is what it purports to be?
  • Issue #3 – Hearsay: If the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception as provided by Rules 803, 804 and 807?
  • Issue #4 – Original Writings: Is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule? If not, is there admissible secondary evidence to prove the content of the ESI pursuant to Rules 1001-1008
  • Issue #5 – Probative Value Balancing Test: Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403?

Recommendations Regarding the Use of ESI

In this case, counsel collectively encountered several fundamental deficiencies that resulted in dismissal of both motions. In order to avoid roadblocks in the admission of electronic evidence, this opinion cautions counsel to keep the following in mind:

  • Step One: Demonstrate relevancy. It is important to articulate multiple grounds of relevance as opposed to putting all “eggs in a single evidentiary basket,” which the judge may view as inapplicable.
  • Step Two: Establish authenticity. In order for ESI to be admissible, it must also be authentic. In other words, counsel must demonstrate that a matter is what it is claimed to be. Authentication with ESI may be done via personal knowledge testimony, comparison by the fact finder or an expert, hash marks and hash values, metadata or appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances.
  • Step Three: Resolve any potential hearsay issues. Determine whether the evidence constitutes a “statement,” whether the statement was made by a “declarant,” whether the statement is being offered to prove the truth of its contents, whether the statement is excluded from the definition of hearsay, and whether the statement is covered by one of the hearsay exceptions if it is hearsay.
  • Step Four: Comply with the original writing rule. When offering ESI at trial or in support of a motion for summary judgment, counsel must determine whether the original writing rule is applicable, and if so, counsel must be prepared to introduce an original, a duplicate original, or be able to demonstrate that one of the permitted forms of secondary evidence is admissible. This is especially important when ESI exhibits are closely related to the controlling issue, and when counsel is proving the contents of the ESI.
  • Step Five: Demonstrate the absence of unfair prejudice. Courts are particularly likely to consider whether admission of ESI would be unduly prejudicial when evidence contains highly offensive language, when analyzing computer animations to determine if there is a substantial risk that the jury may mistake them for actual events, when considerin

First Things First

Federal Rule of Evidence 104 governs the process for determining admissibility and must be considered at the outset. The interplay between Rules 104(a) and 104(b), the types of preliminary evidence that can be considered, and the roles of judge and jury can pose challenges in practice. Rule 104(a) provides that inadmissible evidence may be considered in determining preliminary questions of admissibility under Rule 104(a); however, that provision does not extend to determinations of relevancy conditioned on fact under Rule 104(b). In short, the court noted that there is a significant difference between the way Rules 104(a) and 104(b) operate for purposes of admitting ESI. Judge Grimm observes:

…if an e-mail is offered into evidence, the determination of whether it is authentic would be for the jury to decide under Rule 104(b), and the facts that they consider in making this determination must be admissible into evidence. In contrast, if the ruling on whether the e-mail is an admission by a party opponent or a business record turns on contested facts, the admissibility of those facts will be determined by the judge under 104(a), and the Federal Rules of Evidence, except for privilege, are inapplicable.

Five ESI Admissibility Considerations

While the Federal Rules of Evidence do not independently address the admissibility of ESI, five distinct yet interrelated evidentiary issues govern the admission of electronic evidence at trial, or its acceptance as an exhibit during summary judgment

  • Issue #1 – Relevancy: Is the ESI relevant as determined by Rules 401, 402, and 105? Does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be?
  • Issue #2 – Authenticity: If relevant, is the ESI authentic as required by Rules 901 and 902? Can the proponent show that the ESI is what it purports to be?
  • Issue #3 – Hearsay: If the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception as provided by Rules 803, 804 and 807?
  • Issue #4 – Original Writings: Is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule? If not, is there admissible secondary evidence to prove the content of the ESI pursuant to Rules 1001-1008?
  • Issue #5 – Probative Value Balancing Test: Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403?

Recommendations Regarding the Use of ESI

In this case, counsel collectively encountered several fundamental deficiencies that resulted in dismissal of both motions. In order to avoid roadblocks in the admission of electronic evidence, this opinion cautions counsel to keep the following in mind:

  • Step One: Demonstrate relevancy. It is important to articulate multiple grounds of relevance as opposed to putting all “eggs in a single evidentiary basket,” which the judge may view as inapplicable.
  • Step Two: Establish authenticity. In order for ESI to be admissible, it must also be authentic. In other words, counsel must demonstrate that a matter is what it is claimed to be. Authentication with ESI may be done via personal knowledge testimony, comparison by the fact finder or an expert, hash marks and hash values, metadata or appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances.
  • Step Three: Resolve any potential hearsay issues. Determine whether the evidence constitutes a “statement,” whether the statement was made by a “declarant,” whether the statement is being offered to prove the truth of its contents, whether the statement is excluded from the definition of hearsay, and whether the statement is covered by one of the hearsay exceptions if it is hearsay.
  • Step Four: Comply with the original writing rule. When offering ESI at trial or in support of a motion for summary judgment, counsel must determine whether the original writing rule is applicable, and if so, counsel must be prepared to introduce an original, a duplicate original, or be able to demonstrate that one of the permitted forms of secondary evidence is admissible. This is especially important when ESI exhibits are closely related to the controlling issue, and when counsel is proving the contents of the ESI.
  • Step Five: Demonstrate the absence of unfair prejudice. Courts are particularly likely to consider whether admission of ESI would be unduly prejudicial when evidence contains highly offensive language, when analyzing computer animations to determine if there is a substantial risk that the jury may mistake them for actual events, when considering admissibility of voluminous electronic data, and when the court is concerned about the reliability or accuracy of the information contained within the ESI.

Final ESI Considerations

Assuming that other courts share Judge Grimm's concerns, proponents of evidence obtained from ESI will need to pay more attention to these foundational requirements when gathering the ESI, and when submitting such evidence to the courts..

As Judge Grimm notes,

…[while] these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try.

Counsel should plan to authenticate all ESI by the most rigorous standard that may be applied. There is no one size fits all approach, but gathering the relevant evidence to support admissibility during discovery will save time and expense, while increasing the odds of successful admission of ESI at trial and on summary judgment.