Posted by rjbiii on May 17, 2010
The Defendant questioned the authenticity of email transcripts, “instant messages,” and “chats” due to the incompleteness and integrity of the evidence. “The requirement of authenticity . . . as a condition precedent of admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Though K.S. did not testify at the hearing, Officer Suber testified that the communications were provided to her by K.S. FN2. Also, other evidence, including recorded telephone conversations, corroborated the communications. There are obvious omissions in some of the communications. However, the Court finds that those omissions do not support excluding the communications. The omissions go to the weight rather than the admissibility of the evidence. Based upon the evidence presented at the hearing, the Court finds that Defendant has not demonstrated that the evidence should be excluded at this time. Defendant’s Motion on the Authenticity of Purported Electronic Communications is DENIED.
FN2: For purposes of the hearing, Officer Suber’s testimony was sufficient. However, before the communications will be admissible at trial, the testimony of K.S. or someone with actual knowledge about the communications will be required.
United States v. Lebowitz, 2010 U.S. Dist. LEXIS 7026 at *4-5 (N.D. Ga. Jan. 27, 2010)
Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content, email, FRE 901(a), Instant Messaging, Judge Richard W. Story, N.D. Ga., Uncategorized | Leave a Comment »
Posted by rjbiii on September 17, 2007
It has been noted that “[t]he Federal Rules of Evidence … do not separately address the admissibility of electronic data.” Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007) (quoting Adam Cohen & David Lender, ELECTRONIC DISCOVERY: LAW AND PRACTICE, § 6.01 (Aspen Publishers 2007).
However, “the Federal Rules of Evidence apply to computerized data as they do to other types of evidence.” Id. (quoting Manual for Complex Litigation § 11.447 (4th ed. 2004).
Indeed, Fed.R.Evid. 102 contemplates that the rules of evidence are flexible enough to accommodate future “growth and development” to address technical changes not in existence as of the codification of the rules themselves. Id.
Further, courts have had little difficulty using the existing rules of evidence to determine the admissibility of ESI, despite the technical challenges that sometimes must be overcome to do so. Id. (quoting In Re F.P., A Minor, 878 A.2d 91, 95 (Pa.Super.Ct.2005)).
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. Id. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Id. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered [Id.]:
- 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);
- 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);
- 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);
- 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
- 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.
Posted in 3d Circuit, Admissibility of ESI, Case Blurbs, D. Md., FRE 1001, FRE 1002, FRE 1003, FRE 1004, FRE 1005, FRE 1006, FRE 1007, FRE 1008, FRE 102, FRE 401, FRE 803, FRE 804, FRE 807, FRE 901(a), Magistrate Judge Paul W. Grimm | 1 Comment »