Concluding that the failure of counsel for both sides to observe evidence rules concerning electronically stored information rendered summary judgment exhibits inadmissible, a U.S. Magistrate Judge in the District of Maryland set forth the basic requirements for the admission of e-data: It must be (1) relevant, (2) authentic, (3) not hearsay or admissible under an exception to rule barring hearsay evidence, (4) original or duplicate, or admissible as secondary evidence to prove its contents, and (5) probative value must outweigh its prejudicial effect. The court noted that “although courts have recognized that authentication of ESI may require greater scrutiny than that required for the authentication of ‘hard copy’ documents, they have been quick to reject calls to abandon the existing rules of evidence when doing so. ‘In general, electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues. If a computer processes data rather than merely storing it, authentication issues may arise. The need for authentication and an explanation of the computer’s processing will depend on the complexity and novelty of the computer processing. There are many states in the development of computer data where error can be introduced, which can adversely affect the accuracy and reliability of the output. Inaccurate results occur most often because of bad or incomplete data inputting, but can also happen when defective software programs are used or stored-data media become corrupted or damaged.’ The authentication requirements of Rule 901 are designed to set up a threshold preliminary standard to test the reliability of evidence, subject to later review by an opponent’s cross-examination. Factors that should be considered in evaluating the reliability of computer-based evidence include the error rate in data inputting, and the security of the systems. The degree of foundation required to authenticate computer-based evidence depends on the quality and completeness of the data input, the complexity of the computer processing, the routineness of the computer operation, and the ability to test and verify results of the computer processing.” In particular, the court describes how “hash marks” or “hash values” can be inserted into original electronic documents to provide them with distinctive characteristics that will permit their authentication under Rule 901(b)(4). As to the original writing Rules 1001-1008, the court states that “when counsel intend to offer electronic evidence at trial or in support of a motion for summary judgment they must determine whether the original writing rule is applicable, and if so, they must be prepared to introduce an original, a duplicate original, or be able to demonstrate that one of the permitted forms of secondary evidence is admissible. In this case, counsel did not address the original writing rule, despite its obvious applicability given that the e-mail exhibits were closely related to a controlling issue and there were proving the contents of the e-mails themselves.” See Lorraine v. Markel American Ins., 241 F.R.D. 534 (D.Md. 2007).
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