Discovery is one of the first things on a litigator’s mind at the start of a case. Litigators spend much of their time identifying, collecting, preserving, processing, and analyzing evidence collected. Those issues arise naturally as part of the discovery process itself. But litigators would be well served in thinking about the admissibility of collected evidence that may be important to the case later—from the beginning. When it comes to admitting electronically stored information (ESI) into evidence, there may be an additional wrinkle to the admissibility of such evidence, making it even more important to prioritize from the beginning.
In today’s age, nearly any case can and does contain ESI evidence. For example, a criminal case may have evidence stored on a cell phone, a car collision case likely has evidence from a car’s electronic data collectors, and sale-of-goods cases often have photographic evidence stored electronically. You should utilize tools such as interrogatories and depositions to identify and collect as much ESI evidence as you see helpful to your case. Interrogatories can be used to identify where ESI evidence may be located—for example, by asking for all social media accounts and email addresses associated with a specific person or business entity. At the start of discovery and repeatedly throughout the discovery process you should contemplate the barriers to admissibility against each piece of ESI evidence. The most prominent barriers with ESI evidence are authentication and hearsay. You should use Federal Rules of Civil Procedure Rule 26 to bring your adversary to the table early and sort through all ESI evidence plans and issues. Thinking about the admissibility of the ESI evidence from the beginning will help facilitate a stipulation to the authenticity of the evidence, or if necessary, gather more evidence to support your admissibility argument later.
The challenges to admitting ESI evidence will depend on the type of ESI you are using and the purpose you have for admitting it into evidence. For example, a Facebook post may require different levels of supporting evidence to authenticate depending on your purpose for admitting such evidence. If the evidence is being used to show a specific person was the author of the post, you will need supporting evidence to show that person was both in control of the Facebook account and the author of the specific message being presented. This supporting evidence can be an admission from the author of the message, testimony from a person with knowledge as to the author of the post, and/or circumstantial evidence to support your theory of authorship. The same Facebook post could be authenticated differently if your purpose was not to show the specific author of the post, but rather to show the contents of the post. If for example, the Facebook post was a video, and your purpose was to show a person acting a certain way in the video, the controller of the account and the author of the post is immaterial to your purpose. For that purpose, you would only need to identify and authenticate the individual in the video, similar to authenticating a photograph, laying a foundation with a witness with knowledge or circumstantial evidence.
The level of supporting evidence needed to authenticate ESI evidence may vary amongst jurisdictions. It will be important to research case law in your jurisdiction to strategize the best way to ensure your authentication argument is supported. This is another aspect of the litigation process where preparing early will help you immensely. If prioritized correctly, you will be able to collect the necessary supporting evidence to authenticate your ESI evidence in the early stages of discovery.
To the extent that you are able, you should utilize requests for admissions to authenticate your proposed evidence through stipulation. This should in many cases authenticate most of your proposed evidence, leaving you with a lot less work having to prove authentication later. Requests for admission can help identify the ESI you are going to have issues with. Once you have that information, you should collect and incorporate as much supporting evidence as you can to show authentication. As noted above, jurisdictions may vary on the necessary level of supporting evidence to authenticate your ESI evidence; therefore, presenting more supporting evidence increases the likelihood your admissibility argument will be successful.
To get your ESI evidence trial-ready, you will need to make your exhibit selections and resolve all technical aspects of presenting ESI at trial. Selecting your exhibits for trial is the fun part. You should consider what display of exhibits will best support the presentation of your case. Use a variety of media to keep the attention of the jury. Remember that the jury may not have the same attention span as you, so be pragmatic about the number of exhibits you use. Finally, you will need to decide the technical aspects of presenting the ESI at trial, including what format you will use to present the evidence, what trial presentation software you will use, and how you will organize the digital exhibits.
