July 18, 2012 Articles

A Practical Guide to Admitting ESI at Trial

The process for admitting ESI into evidence at trial involves largely the same considerations as admitting more conventional discovery materials.

By Joseph A. Martin and Christine S. Baxter

Since the 2006 amendments to the Federal Rules of Civil Procedure, which made explicit the discoverability of electronically stored information (ESI), a robust body of case law has developed addressing nearly every aspect of electronic-discovery practice. Courts have considered and decided such issues as when the duty to preserve ESI arises, the appropriate allocation of the costs of e-discovery, the sanctions appropriate for failing to satisfy one’s e-discovery obligations, and, most recently, whether the use of more efficient review methodologies, such as predictive coding, can satisfy a party’s e-discovery obligations. Seee.g., Zubulake v. UBS Warburgm, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004); Sean M. Georges, “Zubulake and E-Discovery: Did You Get Your Wake-Up Call?” 50-Oct Res Gestae 12 (Oct. 2006); Kenneth J. Withers, “Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure,” 7 Sedona Conf. J. 1 (Fall 2006); Ophir D. Finkelthal, “Scope of Electronic Discovery and Methods of Production (pt. 3),” 38 Loy. L.A. L. Rev. 1591 (Summer 2005); Moore, et al. v. Publicis Group SA, et al.,No. 11-1279 (S.D.N.Y. April 26, 2012).

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