Friday, May 04, 2007

2007-05-04 Seminal Computer Generated Evidence Admissibility Analysis --- Lorraine v Markel,
PWG-06-1893 (DC MD May 4, 2007) Getting It Right on the First Try.

Chief Magistrate Judge Paul Grimm of the United States District Court for the District of Maryland issued what is more guidance and analysis than decision in this magnum opus opinion. Largely directed at counsel, the opinion exposes the heightened scrutiny for computer generated information generally, and almost literally talks a walk through almost every section of the Federal Rules of Evidence. The 9th Circuit's decision in In re Vee Vinhnee, the Connecticut Court of Appeals decision in Swinton, and others are all viewed quite the positive light.

Oh, and btw, counsel failed to meet their authentication burden.

The last paragraph of the Markel decision sums it up:

"In this case the failure of counsel collectively to establish the authenticity of their exhibits,resolve potential hearsay issues, comply with the original writing rule, and demonstrate the absence of unfair prejudice rendered their exhibits inadmissible, resulting in the dismissal, without prejudice,of their cross motions for summary judgment. The discussion above highlights the fact that there are five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence at trial or accepted as an exhibit in summary judgment practice. Although each of these rules may not apply to every exhibit offered, as was the case here, each still must be considered in evaluating how to secure the admissibility of electronic evidence to support claims and defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, counsel should know how to get it right on the first try. The Court hopes that the explanation provided in this memorandum order will assist in that endeavor."

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