These rules are important because they can be easily ignored by e-discovery attorneys who are unaware of the challenges involved with ESI admissibility. Judge Grimm explains:

Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. FED.R.CIV.P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

See Lorraine, 241 F.R.D. at 537-38.

In Lorraine, the court summarized the process for admitting ESI under the Federal Rules of Evidence:

Whether ESI is admissible into 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. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered:

(1) is the ESI relevant as determined by Rule 401 (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);

(2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be);

(3) 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 (Rules 803, 804 and 807);

(4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and

(5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance.

Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the very process of determining admissibility of ESI, it must be considered first.

See Lorraine, 241 F.R.D. at 538.

The court then provided a lengthy dissertation applying the process to the facts of the case. The material provides a rule analysis at the micro level, which can be very valuable for an attorney who wants to understand how to challenge or defend the admissibility of ESI evidence.

Read the full case at Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D.  Md. May 2007) or the PDF version.