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Wednesday, September 05, 2007
Law - " Authenticating E-Discovery As Evidence"
The Metropolitan Corporate Counsel has an article today on authenticating electronic evidence. A quote from the introduction:
Recent precedent confirms that courts are requiring rigorous electronic record authentication. In Lorraine v. Markel American Insurance Co ., 241 F.R.D. 534 (D. Md. 2007), United States Magistrate Judge Paul W. Grimm refused to allow either party to offer emails in evidence to support their summary judgment motions, finding that they failed to meet any of the standards for admission under the Federal Rules of Evidence. The emails were not authenticated but simply attached to the parties' motions as exhibits, as has become common practice. Magistrate Judge Grimm opined: "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."A quote from the conclusion, from the interviewee, who runs a data security software company :
We're working closely with the legal community to educate the industry on the evidentiary issues associated with electronic evidence. There are specific authentication issues associated with producing electronic records that lawyers haven't had to deal with in the past. Because we've been dealing with data authentication issues for years, a significant number of e-discovery leaders have been coming to us for advice on how to advise their clients, and what processes need to change in order to ensure the admissibility of critical electronic evidence. The attorneys I've talked to are worried about chain-of-custody issues associated with the electronic records of their clients. Without a method to authenticate content and its associated metadata, attorneys run the risk of losing the ability to enter key electronic records into evidence.Regular ILB readers may recall that the ILB has had a number of entries on this issue, including this one from June 18, 2007, headed "Ind. Courts - Admissibility of electronic evidence -- is it "authentic"?", including: (1) access to a copy of Lorraine v. Markel complete with a linked TOC to make review easier, plus a link to Part I of my three-part Res Gestae series on "Assuring Authentic Legal Information in the Digital Age." Part I deals with the Acts of Indiana and the Indiana Code.
Part II, dealing with electronic authentication issues involving the Indiana Administrative Code and Indiana Register, including a great overview in the way of a comparison table, is available via this August 1, 2007 ILB entry.
Posted by Marcia Oddi on September 5, 2007 03:16 PM
Posted to General Law Related