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Wednesday, August 01, 2007

Ind. Courts - More on: Admissibility of electronic evidence -- is it "authentic"?

On June 14th the ILB posted this entry on the admissibility of electronic evidence, including links to my June Res Gestae article, "Assuring Authentic Legal Information in the Digital Age: Part I - the Acts of Indiana and the Indiana Code."

Today I am posting for ILB readers the draft of "Assuring Authentic Legal Information in the Digital Age: Part II - The Indiana Register and the Indiana Administrative Code." This article is slated to appear in the combined Aug-Sept. issue of Res Gestae. Don't miss the chart on p. 8.

Part II concludes: "[N]either the Indiana Code nor the Indiana Register and Indiana Administrative Code meet requirements for trustworthy state-level primary legal resources on the Web."

More: The June 14th ILB entry included discussion of the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel (D Md). Here is another take on that decision, this one from the July 27, 2007 issue of Legal Times. The article, by Bradford E. Biegon, of counsel at Washington, D.C.’s Spriggs & Hollingsworth, concludes:

These concerns are not merely academic. They go directly to the rising costs of litigation. Last year's amendments to the discovery rules opened the floodgates of electronic discovery, which can be expensive and time-consuming. Yet the changes did not address whether any of the resulting discovery materials were actually admissible at trial.

To be sure, parties may seek discovery of materials that are not admissible. But courts are charged with weighing the burdens and benefits of discovery. If a party seeks discovery of electronically generated information such as metadata, which may not be evidence at all -- or at best, hearsay -- the courts might do well to consider such discovery unjustified, particularly considering that the desired information might be found through more traditional and less burdensome means.

But whether electronically generated information is evidence at all or hearsay, Grimm's opinion has given corporate counsel and their trial lawyers much to think about as they prepare to prove their cases with electronic information. Lawyers may ignore this opinion at their peril and hope that lightning strikes for them -- but as Grimm observed, "counsel would be wise not to test their luck unnecessarily. If it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied."

Posted by Marcia Oddi on August 1, 2007 07:27 AM
Posted to Indiana Courts