The eDiscovery process – which involves identifying, preserving, collecting, processing, reviewing, and producing electronically stored information (ESI) – is often the most expensive and time-consuming part of trial preparation. All that effort could be of little value if the evidence gathered is deemed inadmissible or is not presented effectively. It therefore behooves litigants to form a sound ESI strategy early on to ensure the admissibility of computer-generated evidence.
What Determines Admissibility of Computer-Generated Evidence
In order to be deemed admissible, ESI – as with any other evidence – must meet certain criteria in accordance with the rules of evidence:
- Relevance – Does the ESI make some fact that is of consequence to the litigation more or less probable than it otherwise would be?
- Authenticity – Is the data what it appears or claims to be?
- Hearsay – If the ESI is being submitted for its substantive truth, is it hearsay? If so, is it covered by an exception to the hearsay rule?
- Original writing – Is the ESI an original or duplicate in accordance with the original writing rule? If not, is there admissible secondary evidence to prove the content of the ESI?
- Probative value and unfair prejudice – Is the probative value of the ESI significantly outweighed by the danger of unfair prejudice, to the extent that it should be excluded despite its relevance?
ESI presents unique challenges when it comes to authentication because of its transitory nature: simply booting up a system can cause data to be altered, lost, overwritten, or destroyed. Therefore maintaining a clear chain of custody (a record that documents the chronology of the ESI’s custody, control, transfer, and disposition) is imperative for authenticating electronic evidence.
Then there is the matter of authorship of ESI, especially in the realm of social media where texts, emails, and social media messages could be sent by anyone with access to someone’s computer or cell phone. In these cases, the data is often authenticated through a witness with personal knowledge of the content. Expert testimony can also be used to authenticate various ESI, such as business emails. The expert witness can highlight distinctive characteristics that support its authenticity ( its appearance, content, substance, internal patterns, etc.) and establish the email as a “business record” (certify that it was made at or near the time the matter was discussed, kept in the course of a regularly conducted activity, and made as a regular practice of the regularly conducted activity).
Trust the eDiscovery Experts at Precise
At Precise, our digital forensics experts are well-versed in the rules governing admissibility of computer-generated evidence. We ensure your data is collected and preserved properly so that your evidence makes it into the courtroom. For affordable eDiscovery and digital forensics services, call Precise today at 866-277-3247 or email firstname.lastname@example.org.