Electronically Stored Information

• Pages: 271-291

271

CHAPTER VII

ELECTRONICALLY STORED INFORMATION

Antitrust cases typically entail discovery and admission into evidence of

most forms of electronically stored business materials, including email

communications, computer-generated documents, data files, Internet

files, and other emerging forms of electronically stored information

(ESI). Most business organizations now generate ESI as the predominant

form of business records, typically in place of or in addition to paper

records. As a result, antitrust practitioners and courts have had to

increasingly address the production and admission of ESI as a matter of

course in antitrust cases.

Prior to 2011, there had been no ESI-specific amendments to the Federal

Rules of Evidence despite the proliferation and volume of ESI

encountered in all types of civil cases in federal courts, which often

presented novel evidence issues. The 2011 amendments clarify that “a

reference to any kind of written material or any other medium includes

electronically stored information.” FED. R. EVID. 101(b)(6). This

essentially codifies the practice that courts and parties in federal antitrust

litigation have developed to determine the admissibility of ESI, which

typically involves the same evidentiary rules and legal standards that

apply to paper records and other types of evidence. The Federal Rules of

Evidence that have particular importance for ESI include the following:

(1) whether the ESI is relevant as determined by Federal Rule of

Evidence 401;

(2) whether the ESI is authentic as required by Federal Rule of Evidence

Rule 901(a);

(3) if ESI is offered for its substantive truth, whether the ESI constitutes

hearsay as defined by Federal Rule of Evidence 801 and, if so,

whether it is covered by an applicable exception (Federal Rules of

Evidence 803, 804, and 807);

(4) whether the form of ESI is an original or duplicate under the original

writing rule and, if not, whether there is admissible secondary

evidence to prove the content of the ESI (Federal Rules of Evidence

1001–1008);

272 Antitrust Evidence Handbook

(5) whether the court can admit ESI as evidence under principles of

judicial notice (Federal Rule of Evidence 201); and

(6) whether the probative value of ESI is substantially outweighed by

the danger of unfair prejudice or one of the other factors identified

by Federal Rule of Evidence 403, such that it should be excluded

despite its relevance.

See generally Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md.

2007). Judge Grimm’s 101-page opinion in Lorra ine has been described

as an “essential primer on evidence admission.” Electronic Evidence

101, LEXISNEXIS WHITE PAPER (2007), available at

http://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/A

DI_WP_LorraineVMarkel.pdf.

This chapter provides an overview of how these evidence rules and

standards have been applied to ESI.

A. The Federal Rules of Evidence Governing the Introduction and

Use of ESI as Evidence in Antitrust Proceedings

1. Relevance

In order to be admitted in court, evidence must be deemed relevant under

Federal Rule of Evidence 401. ESI is held to the same relevance standard

as other evidence in that “it is sufficient if it has ‘any tendency’ to prove

or disprove a consequential fact in the litigation.” Lorr aine v. Markel

Am. Ins. Co., 241 F.R.D. 534, 541 (D. Md. 2007) (quoting FED. R. EVID.

401).

2. Authentication

The Federal Rules of Evidence relevant to authentication are the

following:

Federal Rule of Evidence 901. Authenticating or

Identifying Evidence

(a) In General. To satisfy the requirement of authenticating

or identifying an ite m of evidence, the proponent must

produce evidence sufficient to support a finding that the

item is what the proponent claims it is;

(b) Examples. Though not a complete list, the follo wing are

examples of evidence that satisfy the requirement:

(1) Testimony of a Witness with Knowledge.

Testimony that an item is what it is claimed to be.