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
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
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.
2. Authentication
The Federal Rules of Evidence relevant to authentication are the
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.

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