Post Process

Everything to do with E-discovery & ESI

Case Blurb: Lebowitz; Authentication of ESI Discussed

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)

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