E-Discovery for Dummies Outline - Chapter 12 - Dealing with Evidentiary Issues and Challenges


V. GETTING LITIGATION READY

12. Dealing with Evidentiary Issues and Challenges

a. Expert Qualification

i. FRE 702 – witness can testify:

1. If testimony is based on sufficient facts or data.

2. Testimony is the product of reliable principles and methods.

3. The expert has applied the principles and methods reliably to the facts.

ii. Facts and data relied on don’t have to be admissible if they are of the type normally relied upon by experts in the field.

iii. FRE 705 – expert can give opinion without first setting forth data underlying that opinion.

iv. Daubert v. Merrel Dow Pharms. Reliability of expert testimony based on:

1. Can theory be objectively tested?

2. Has theory be subjected to peer review and publication?

3. Is the potential error rate known?

4. What controls used in applying the theory?

5. Does the theory have general acceptance in the scientific community?

b. Admissibility

i. Lorraine v. Markel American Ins. Co. - Judge Grimm’s rule on ESI admissibility:

1. Is ESI relevant under FRE 401 – does it make some fact of consequence more or less probable?

2. If relevant under FRE 401, is it authentic under FRE 901(a)?

3. Is ESI hearsay under FRE 801 and if so, is it covered by an exception?

4. Is it an original or dupe under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI? FRE 1001-08

5. Is the probative value of the ESI outweighed by the danger of unfair prejudice or other FRE 403 factors that it should be excluded despite its relevance?

c. Authenticating ESI

i. Authentication

1. Prove the ESI is what you’re saying it is.

2. Judge makes preliminary determination if ESI has probative value for jury to rationally believe that ESI is what it purports to be.

3. Jury decides whether ESI is what it purports to be.

ii. Direct Evidence

1. Testimony by person who created the ESI.

iii. Circumstantial Evidence

1. Outside evidence such as distinctive characteristics, content and appearance.

iv. Examples of Authentication

1. Testimony by witness

2. Comparison with specimens that have been authenticated.

3. Distinctive characteristics.

a. Reply letter doctrine.

4. Public records – need only show where obtained is legal custodian.

5. Evidence produced by an accurate process or system.

d. Self-Authenticating ESI

i. FRE 902

1. Public documents under seal.

2. Certified copies of public records.

3. Newspapers and periodicals.

4. Trade inscriptions.

5. Notarized documents.

6. Business records with custodian’s declaration.

e. Chain of Custody

i. To ensure reliability of ESI follow these steps:

1. Establish document maintenance and collection procedure before any litigation.

2. Document identification within that maintenance and collection procedure.

3. Identify the ESI in a manner that will provide reliability of the data after it's produced for discovery. An example might be hash values.

4. Maintain a log of all activity relevant to the ESI including obtaining, accessing, storing, and transferring the ESI. This should be coordinated with the preservation log.

5. Regularly review to make sure there is compliance with the procedures

f. Hearsay Exceptions Under FRE 803

i. Present Sense Impression

ii. Excited Utterance

iii. Existing mental, emotional or physical condition.

iv. Recorded recollections.

v. Ancient records

vi. Learned treatises

vii. Business Records

g. FRE 807 Exception

i. Equivalent that guarantees trustworthiness applicable to other hearsay exceptions AND

1. Be offered as evidence of material fact.

2. Statement more probative than any other evidence obtainable through reasonable means.

3. General purposes of the rules and interests of justice will be served.

ii. If FRE 807 is used must let the other party know in advance so they can prepare a challenge to it.

h. Providing the Best Evidence

i. Issue of whether a printout is an original if it does not contain the metadata.