Commercial Litigation and Arbitration

Electronic Evidence — Admissibility of Electronically Stored Information

For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information ("ESI"). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes "such facts as would be admissible in evidence" for use in summary judgment practice. FED. R. CIV. P. 56(e).

With that introduction, Magistrate Judge Paul Grimm of the District of Maryland launches into an exhaustive analysis of the admissibility of electronic discovery as evidence in Lorraine v. Markel Am. Ins. Co., 2007 U.S. Dist. Lexis 33020 (D. Md. May 4, 2007). It is required reading. See also the articles on the Recent Articles page entitled Internet and Email Evidence (which Lorraine cites) and A Simplified Approach to Computer-Generated Evidence and Animations (which is cited by, and is the basis for, much of the discussion in Weinstein that Lorraine quotes).

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