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.
Post Process 