Electronic documents aren't automatically admissible just because they were produced to you by the other side. That's the message of a useful article in the National Law Journal: "Don't Let Your E-Evidence Get Trashed," by Jerold S. Solovy and Robert L. Byman.
Once you've assembled that stack of "hot documents," your job is only halfway done. Now it's time to start thinking about issues like authentication and hearsay.
In the quoted article, the authors mention a three-step approach: "seek a stipulation; barring that, propound a request for admission; and barring that, be prepared to establish authenticity and hearsay exceptions at trial."
In my own practice, I follow these steps but sometimes in a different order, sending the request for admission first. It's often once of the best ways to prod your busy opponent to start thinking about stipulations well in advance of trial.
I suggested a form for authenticating electronic documents in "Authenticating Exhibits Using Requests for Admissions: Two Methods." Look at the second method.
Related post: "Electronic Discovery: Don't Get So Caught Up in the Form that You Neglect the Substance."
Related sections from my book Deposition Checklists and Strategies (for readers who own it):
1. §6:73 Practice Tip: Discovery of E-Mails
2. §6:76 Practice Tip: Admissibility of Employee E-Mails
Evan: I recommend to my clients to use uniquely numbered CD-ROMs or DVD-ROMs with the session closed and no rewrite capability. Further, I recommend the requesting party to initial or sign the CD-RMO and to have the answering parties' counsel to initial or sign. The purpose of this is to eliminate future disputes regarding what electronic documents were actually on the CD-ROM that the parties authenticated and stipulated to.
If an attorney is concerned that being involved in the authentication process could result in lawyer-as-witness headaches in the unlikely event of such a dispute, he or she should use a reputable forensic or eDiscovery vendore as a go-between. The eDiscovery vendor should maintain an MD5 hash database of all stipulated ESI/files.
Posted by: Sean Harrington | July 03, 2007 at 06:47 PM