Post Process

Everything to do with E-discovery & ESI

Archive for the ‘FRE 104(b)’ Category

Case Blurb: Lorraine; Preliminary Rulings on Admissibility for ESI under FRE 104

Posted by rjbiii on September 17, 2007

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. Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

When the judge makes a preliminary determination regarding the admissibility of evidence under Rule 104(a), the Federal Rules of Evidence, except for privilege, do not apply. Id. (citing Fed. R. Evid. R. 104(a); 1101(d)(1)).

Therefore, the court may consider hearsay or other evidence that would not be admissible if offered to the jury, and “hearings on preliminary matters need not be conducted with all the formalities and requirements of a trial.” Id. (citations omitted).

  • 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 under Rule 104(b), so the court may not consider inadmissible evidence in determinations governed by Rule 104(b).
  • In determining the preliminary question of authenticity under Rule 104(b), therefore, a judge may only consider evidence that is itself admissible.

The following types of preliminary matters typically are determined by the judge under Rule 104(a): whether an expert is qualified, and if so, whether his or her opinions are admissible; existence of a privilege; and whether evidence is hearsay, and if so, if any recognized exception applies. Id. (citations omitted).

Posted in 3d Circuit, Admissibility of ESI, Case Blurbs, D. Md., FRE 104, FRE 104(a), FRE 104(b), Magistrate Judge Paul W. Grimm | Leave a Comment »