In previous installments of E-Discovery Basics, we discussed litigation preparedness, legal holds, 保存, 处理, review and production of electronically stored information (“喷雾”). In this installment, we discuss what many consider to be the last step in the e-discovery life cycle–admissibility and presentation of ESI to a trier of fact at trial or in other proceedings (例如, in support of a summary judgment motion).

The often considerable work and expense involved in the earlier stages of the e-discovery life cycle could end up being of little value if the ESI that is identified, preserved, collected, 处理, reviewed and produced is ultimately inadmissible or not effectively presented. Litigants therefore should think strategically early on so that they handle and manage ESI in a way that ensures its admissibility and effective presentation.

Admissibility: The rules of evidence establish a series of hurdles that ESI usually must overcome before being admitted into evidence:

Relevance–Does the ESI have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be?

Authenticity–Is the ESI what it purports to be?

Hearsay–If offered for its substantive truth, is the ESI hearsay, 和, 若有, is it covered by an exception to the hearsay rule?

Original Writing–Is the ESI an original or duplicate under the original writing rule, 或, 如果不, is there admissible secondary evidence to prove the content of the ESI? 和

Probative Value and Unfair Prejudice–Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice, such that it should be excluded despite its relevance?

继续@吉布森邓恩 – 电子发现基础: ESI的可接纳性和颁奖 (飞行. 1, 在. 10).