Implications of Lorraine in Authenticating Evidence for e-Discovery

In this post, guest authors Mary Mack and Dennis Kiker examine the implications of an eDiscovery decision suggesting that authentication of electronically stored information will soon become a major issue during litigation.  The authors predict that this opinion will take on great importance in future eDiscovery cases.

Authenticating electronic evidence in civil trials is coming into its own. In May 2007, Magistrate Judge Paul W. Grimm, in Lorraine v. Markel Am. Ins. Co ., set down persuasive parameters for authenticating evidence. Lorraine, which is getting more traction by the day, establishes guidelines for admitting electronically stored information (ESI) into evidence. It goes beyond the "breathalyzer" standard of In re Vee Vinhnee. If, as Judge Grimm predicts, the bar in civil court for ESI authentication is about to be raised, his opinion could take on landmark proportions. That's why it's imperative to understand the practical and strategic implications of Lorraine.

Authenticating evidence in civil cases has traditionally been a low priority, in part because perhaps 95 percent of civil cases settle before going to trial. And even though the ever-increasing volumes of ESI have radically altered the civil litigation landscape, many practitioners still treat ESI as if we were still living in a paper world. Authenticating electronic data requires more stringent tests than authenticating a piece of paper. Judge Grimm's 80-page opinion in Lorraine strongly suggests that authentication of ESI will soon become an issue of considerable contention in civil courts.

Lorraine was a "garden variety" civil suit over damage to a yacht sustained during a lightning storm. The arbitration amount at issue was $36,000. Both parties filed motions for summary judgment. Judge Grimm denied both motions on grounds that the parties hadn't properly authenticated their evidence. He then used Lorraine as a vehicle to address guidelines for authenticating evidence in the era of e-discovery.

Lorraine refers to In re Vee Vinhnee, a 2005 case that addressed critical issues in authentication. Judge Grimm went further by dealing with a wider range of admissibility and authentication issues in a single opinion - in effect creating an electronic evidence primer. He clearly established that the way evidence is gathered, processed and produced can have a significant impact on its admissibility.

The 2006 ESI amendments to the Federal Rules of Civil Procedure (FRCP) are being addressed by many organizations. Judge Grimm explains very cogently the interplay of the Federal Rules of Evidence (FRE) with the FRCP.

Judge Grimm first set out the basic FRE regarding the admissibility of all types of electronic evidence. The court said that the evidence must be:

• Relevant (401)
• Authentic (901(a))
• If hearsay(801), allowable under the hearsay exceptions (803, 804, 807)
• Original, duplicate or supported by admissible secondary evidence (1001-1008)
• The probative value of such evidence cannot be outweighed by any unfair prejudice or other factors (403).

Following are points of interest contained in Lorraine:

• Hearsay: Strictly defined, hearsay is a statement made by a declarant to support evidence - a person who makes a statement. Hearsay becomes more interesting in e-discovery because of what we don't think about. Hearsay involves acts by people. Today, so much information is literally generated automatically by computers. When it is gathered and created by a computer, it is not hearsay.

• Authentication: Is a document what it purports to be? Judge Grimm points out that, with ESI, you not only have to authenticate the information itself, but depending on the circumstances, also the computer and the processes used to enter, process and retrieve the data. An expert in electronic data or com puter forensics may have to validate the entire process by testifying that the computer and the processes used were reliable, and that the retrieved data remains in its original form. Judge Grimm cites a series of factors that can throw authenticity into question, from computer system security to data entry to the ability to verify results. Authenticating the expanding range of ESI, from instant messages to web page content, will come under greater scrutiny as various types of data become more important pieces of evidence. There's an important subtext to this: Failure to challenge authenticity waives an objection to authenticity. So we'll be seeing more challenges simply to avoid that waiver.

• Standards vary widely by venue: Judge Grimm collected and shared the relevant opinions around authentication during Lorraine. He stated that counsel needs to be familiar with these interpretations and be ready to respond to them. Some courts are quite lenient, while others are more stringent about admitting ESI that has not been authenticated from a technical standpoint. "More courts have tended towards the lenient rather than the demanding approach," Judge Grimm writes in Lorraine. He clearly believes the scales are about to tip in the other direction.

• The original writing, or best evidence, rule: What constitutes an original document in the era of ESI? Judge Grimm foresees a debate on this issue. The first rule is that you have to produce the original or duplicate if you want to prove the contents. For paper documents, the courts have held that certain duplicates (TIFFs, PDFs) are duplicates of paper records. But in the case of ESI, if metadata is at issue, TIFFs or PDFs might not be considered duplicates. E-mail represents another potentially rich area for development of the original writing rule. The organization that takes the time to study opinions like Grimm's in Lorraine and create a discovery response plan with provision for authenticating ESI well in advance of the need to admit evidence will have a stronger negotiating position in settlement and less to worry about should trial be necessary.

For more information on evidence authentication standards for e-discovery, listen to Fios' "on demand" webcast hosted by Dennis and Mary:

• Authenticating Evidence for E-Discovery (link to: http://www.fiosinc.com/e-discovery-knowledge-center/electronic-discovery-webcast.aspx?id=137&cid=cfl-cont-art1-090401 )
  Faculty: Mary Mack, Esq. , Corporate Technology Counsel, Fios, Inc. &
  Dennis Kiker , Director, Fios Consulting, Fios, Inc.

About the Authors:

Mary Mack, Esq.

As Corporate Technology Counsel for Fios, Mary Mack has more than 20 years experience delivering enterprise-wide electronic discovery, managed services and software projects with legal and IT departments in publicly held companies. She is a hands-on strategic advisor to counsel for some of the largest products liability class actions, government investigations and intellectual property disputes. A member of the Illinois Bar, ACC and the ABA's Section on Litigation, Mack received her J.D. from Northwestern University School of Law (1982) and a B.A. from Le Moyne College in Syracuse, NY. She holds certifications in Computer Forensics and Computer Telephony. Mack is one of the leading speakers and authors on e-discovery issues, technology and the law. She is co-author of eDiscovery for Corporate Counsel, published by West; author of the popular book, A Process of Illumination: The Practical Guide to Electronic Discovery; and hosts the blog, Sound Evidence, featured on DiscoveryResources.org.

Dennis Kiker, Esq.

Dennis Kiker is dedicated to helping clients prepare for and respond to the demands of litigation. As a Director in Fios Consulting, Kiker leads comprehensive consulting engagements that result in repeatable processes for efficiently and defensibly managing discovery related to complex litigation and governmental investigation. He specializes in bringing together in-house counsel, business personnel and outside counsel to develop formalized response plans that lower the costs, time and risks of discovery response. Prior to joining Fios, Kiker was a shareholder at Moran Kiker Brown PC, where he served as national discovery counsel for some of the largest manufacturing companies in the country. Kiker is a frequent speaker and author and an active participant in both the Sedona Conference and Electronic Discovery Reference Model working groups. He holds a J.D., Magna Cum Laude & Order of the Coif from the University of Michigan Law School and a B.S. in Business Administration from the University of Phoenix.

Lorraine v. Markel Am. Ins. Co. , 2007 WL 1300739 (D. Md. May 4, 2007).

In re Vee Vinhnee (336 BR 437 BAP 9 th, 2005).