A Practical Guide to Admitting ESI at Trial

Receiving less attention has been the topic of the admissibility of ESI at trial. To be sure, business litigators are indebted to Chief Magistrate Judge Paul Grimm for his thorough dissertation on the topic in his 2007 decision in Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). But although Judge Grimm provided an authoritative exposition on the rules and case law governing the admissibility of ESI at trial and on summary judgment, his decision was not a mechanical how-to guide for trial lawyers.

The following two sample direct examinations of authenticating witnesses illustrate the mechanics of admitting ESI at trial. The first addresses the mechanics of admitting email when the authenticating witness is not particularly cooperative. The second addresses the critical issue of maintaining the chain of custody for the proffered ESI sufficient to show the information was not altered or tampered with from the time it existed on the computer from which it was extracted to the time it is offered at trial.

These sample examinations relate to a familiar fact pattern: a former employee now working for a competitor. Imagine you represent the former employer, Corporation, in an action against Former Employee and Competitor alleging claims for misappropriation of trade secrets, breach of contract, breach of fiduciary duty, and tortious interference. During his employment with Corporation, Former Employee was a sales professional privy to Corporation’s confidential sales strategies, pricing, and customer lists. Despite signing a noncompete agreement when he began his employment with Corporation, Former Employee ultimately left Corporation for a similar position with Competitor. Corporation has since lost a number of key clients to Competitor.

During discovery, Corporation forensically imaged Former Employee’s laptop computer. From that imaging, Corporation obtained a number of emails, including a smoking-gun email exchange sent one week before Former Employee left Corporation to work for Competitor. That email exchange reads as follows:

At trial, you call Former Employee to testify regarding the email. He testifies that he began working for Competitor on November 17, 2011, but denies using the promise of delivering Corporation’s clients to Competitor to negotiate a higher salary. You intend to confront Former Employee with the November 10 email exchange and ask the court to admit the email into evidence. But how?

Initially, and as with all documentary evidence, you need to consider carefully how you plan to use the email at trial, taking into account its relevance (Fed. R. Evid. 401), anticipating hearsay objections (Fed. R. Evid. 801), addressing best-evidence concerns (Fed. R. Evid. 1003 & 1001(e)), and tailoring your authentication efforts accordingly.

Fortunately, as with more conventional evidence, establishing the relevance of email simply requires a showing that the email has “any tendency” to make a consequential fact more or less probable. Fed. R. Evid. 401. But nearly all email exchanges raise hearsay concerns, and embedded email chains, like the one quoted above, have the potential to raise unique issues. Consider, for example, an email chain in which a defendant writes to a third party, “looking forward to meeting with you tomorrow,” and the third party responds the following afternoon, “it was great to meet you this morning.” If offered to prove that a meeting took place between them on the morning in question, the defendant’s email will be admissible as the statement of a party opponent (Fed. R. Evid. 801(d)(2)(A)), but the third party’s reply is hearsay. On the other hand, if offered only to establish that the parties corresponded, neither portion of the chain would be hearsay. For best-evidence purposes, email is rarely problematic, as the evidence rules expressly provide for the admissibility of duplicates produced by an electronic process that accurately reproduces the original unless the circumstances would make it “unfair to admit the duplicate.” Fed. R. Evid. 1003 and 1001(e).

More Than One Path to the Finish Line
As with other forms of evidence, email must be properly authenticated to be admissible. In a perfect world, a witness would definitively confirm that the email offered into evidence is an accurate copy of the email he or she previously sent or received. See Fed. R. Evid. 901(b)(1). But witnesses can be fickle when it comes to answering questions about email, particularly damning email, often hedging their bets and making statements such as “I may have sent that email, but I just can’t be sure.”

With these witnesses, courts routinely permit a party to authenticate an email by establishing distinctive characteristics regarding the email and the circumstances surrounding it. Did the witness ever communicate with the sender/receiver by email? Did they ever communicate regarding the subject matter of the email? Did such communications take place at or around the date of the proffered email? Did the witness use the sending/receiving email address identified on the email? Was it used at or around the date of the email? Does the witness recall the communication referenced in the email? And, importantly, does the witness have any reason to doubt that he or she sent or received the email? See Fed. R. Evid. 901(b)(4). Remember, the key to authenticating an email is simply to provide sufficient information to support a finding that the email is what you say it is.

With these considerations in mind, you proceed with the testimony of Former Employee necessary to authenticate the November 10 email exchange and to ask the court to admit it into evidence:

Despite Former Employee’s resistance, you were able to elicit testimony regarding the email’s distinctive characteristics and context sufficient to convince the court that the email is what you say it is and, therefore, that the email is admissible.

Avoiding Missteps on the Path to the Finish Line
Now consider a slightly different scenario. Former Employee challenges the authenticity of the email, claiming that Corporation cannot establish that the copy of the email offered at trial is a copy of the actual email exchange between him and the CEO that Corporation claims to have obtained from his laptop. So how does Corporation convince the court otherwise?

An important step in this process is establishing the chain of custody of the email from the time it resided on Former Employee’s computer to its being offered into evidence at trial. This may require testimony from an authenticating witness familiar with the means by which a copy of the email was obtained from the computer and how the email was handled in the discovery process.

Often, the solution is to call a representative of your e-discovery vendor at trial:

Effectively establishing the chain of custody leaves little room for Former Employee to challenge the authenticity of the smoking-gun email.

Crossing the Finish Line
As these examinations reveal, the process for admitting ESI into evidence at trial involves largely the same considerations as admitting more conventional discovery materials. If you are attuned to the ways in which ESI may raise unique issues, you need only approach ESI with the same reasoned assessment of the relevance, hearsay, best evidence and authentication concerns that you would undertake for any other trial evidence.

Keywords: litigation, business torts, e-discovery, authentication, admitting evidence