In the Lorraine case, the court excluded e-mail messages from evidence due in part to the parties’ failure to authenticate those messages, which were attached as exhibits to both parties’ motions for summary judgment. The court noted the standard for authentication under the Federal Rules of Evidence is relatively easy to meet and a proponent must simply show that an exhibit is what he or she claims it to be. While courts sometimes tend to hold ESI to a slightly higher standard than hard copy documents, a Pennsylvania court commented that authentication of ESI should be evaluated on a case-by-case basis. Although ESI, including e-mail, can raise issues of authentication, the risks of forgery are no greater in ESI than in hard copy documents. In re F.P., 878 A.2d 91, 95-96 (Pa. Super. 2005).

The Maryland judge observed that the most common means of authenticating e-mail evidence are:

I. FRE 901(b)(1): Testimony by an individual with personal knowledge;

II. FRE 901(b)(3): Expert testimony or comparison with authenticated exemplar;

III. FRE 901(b)(4): Distinctive characteristics, including circumstantial evidence, such as outside conversations about the contents of the e-mail paired with an identifying e-mail address; use of “hash values” to provide unique numerical identifiers to the documents, or analysis of metadata for evidence supporting authenticity;

IV. FRE 902(7) Trade inscriptions; and

V. FRE 902(11) Certified copies of business record.

The court warned, however, that an e-mail address identifying the sender is not sufficient, by itself, to authenticate an e-mail message. Due to the potential for unauthorized e-mail transmissions, testimony of an individual with personal knowledge of the transmission is necessary to ensure trustworthiness of the document. United States v. Siddiqui, 235 F. 3d 1318, 1322-23 (11th Cir. 2000). See also United States v. Safavian, 435 F. Supp. 2d 36,40 (D.D.C. 2006).

A Maryland magistrate judge offered the following guidance on the admissibility of Electronically Stored Information (ESI), stating five evidence rules to consider whenever ESI is offered as evidence:

(1) Is the ESI relevant under Federal Rule of Evidence 401?

(2) If relevant, is the ESI authentic under Federal Rule of Evidence 901(a)?

(3) If the ESI is offered for its substantive truth, is it hearsay under Federal Rule of Evidence 801? If so, is it covered by an exception to the hearsay rule?

(4) Is the ESI the “best evidence”?

(5) Is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance?

Lorraine v. Markel American Insurance Company, 2007 WL 130073 (D. Md. May 4, 2007).

The court proceeded to evaluate admissibility of various types of ESI including e-mail, digital photographs, text messages, chatroom logs, computer animation and simulations, computer-stored data and records, and internet website postings. This series of articles will address the court’s analysis and will explore the various approaches toward the admissibility of ESI as evidence at trial and summary judgment hearings.

In California, communications between an attorney and a designated expert witness become discoverable upon designation of that expert. Generally, opposing counsel will attach a document demand to the deposition notice which includes a request for all correspondence between the expert and the designating attorney. In recent years, these requests often include a specific request for e-mail correspondence.

A Tennessee court recently addressed the issue of e-mail correspondence between attorneys and experts in Univ. of Pittsburg v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007). In that case, plaintiff’s counsel instructed expert witnesses to delete e-mail correspondence. Although the court did not grant defendant’s request for sanctions, the court held that plaintiff’s counsel acted improperly in instructing the experts to destroy the e-mails, which defendant requested several times during the course of discovery.

E-mail communication is often less formal than other types of correspondence. Mistakes can occur at the click of a button and many of us have sent an e-mail to the wrong recipient or failed to edit a crucial piece of information from the body before hitting “send.” In certain industries, experts are less familiar with e-mail and may assume that a deleted message will not come back to haunt them. A medical expert, who was less familiar with e-mail correspondence, once asked me whether an e-mail could be traced to him if he didn’t sign his name at the end of his message, not realizing that his e-mail address would easily identify him. That expert’s statement alerted me to the fact that electronic communication is still uncharted territory for some individuals. Experts may not regularly check e-mail and oftentimes servers will block e-mails with large attachments such as deposition transcripts. It is therefore essential to discuss e-mail correspondence with your potential expert witness at the inception of the retention and to remind him or her that they may be obligated to produce e-mails in response to a document demand.

An expert who is employed by the client and has participated in any litigation strategy discussions should only be designated after very careful consideration. A California appeals court, for instance, has held that the attorney client privilege may not necessarily be asserted to prevent questioning of an expert witness into the subjects of conversations between counsel and the expert related to the lawsuit.

Trial can be a stressful experience for all involved. Many attorneys and paralegals are not familiar with using a laptop together with a projector and may be intimidated at first. The following list is a collection of tips, tricks and shortcuts to transform you from attorney to audio-visual master (or at least keep your blood pressure down during your presentation):

• PRACTICE! Work out any issues with your equipment and/or software before you set foot in the courtroom. Run through your presentation to make sure you have the requisite documents and nothing is misspelled or missing. Communication is essential if another person is controlling the laptop while you are across the room. A “dress rehearsal” with the Audio-Visual technician, paralegal or second chair attorney will make you both more comfortable because you will know what to expect (at least to some degree). Part of your practice should include setting up and dismantling your equipment so you can determine how much set up time you will need during trial.

• LET IT GO. You will be tempted to tinker with an uncooperative projector or to struggle with a frozen laptop in the middle of trial. Stop and take a deep breath. If it is a simple issue to fix, give it a try. If you cannot pull up the document or program, calmly notify lead counsel of the situation and move on without causing a commotion. Make sure you have hard copies of exhibits and deposition transcripts so you can still obtain the information or present the exhibit to a witness.

• BACK IT UP. It seems my laptop goes haywire when I need it most. Buy an external hard drive and a thumb drive so you have some external backup system for trial. I recommend keeping a spare laptop with the complete file saved on it so that the projector can be quickly transferred if one of the laptops stops functioning.

• TAKE SHORTCUTS. This is a matter of preference, but I find keyboard shortcuts to be extremely helpful when I need to quickly open, close or enlarge a document. The following

Microsoft shortcuts may assist you in your next trial:

Word, Adobe Acrobat, PowerPoint

CTRL + O: Open file
CTRL + W: Close file
CTRL + Z: Undo
CTRL + C: Cut
CTRL + V: Paste

PowerPoint

F5: Start slide show from beginning
Shift + F5: Start slide show from current slide
Slide Number+Enter: Takes you to a specific slide no matter where you are in the presentation (in presentation mode)
CTRL + L: Hide pointer (in presentation mode)
CRTL + A: Reveal pointer (in presentation mode)
B: Black out screen (in presentation mode); press again to return to slideshow.
W: White out screen (in presentation mode); press again to return to slideshow.

Adobe Acrobat

ALT + T + Z + Z: Activates Marquee Zoom so you can select text with your mouse and enlarge it on the screen.
CTRL + 0: Zooms out to show the full page of a document on the screen

Windows

ALT+TAB: Allows you to toggle between windows without using a mouse. Hit the TAB key to select the desired window

• CREATE AN EXHIBIT KEY. Locating an electronic document in a time crunch can be made easier by numbering PDF documents and providing a short description after the document number, like this:

When you are presenting documents, it is sometimes inconvenient to have to open the search window in mid-presentation and scroll through the listed documents. A printed exhibit key, like the sample below, can make it even easier to find your documents.

Likewise, it can be helpful to print out a sheet of your slides for a PowerPoint presentation so you can quickly identify the slide numbers if you wish to skip around in your presentation (e.g. use the Slide Number + Enter function to move from the 5th slide to the 2nd slide and back.

Remember that even seasoned techies face faulty wires, testy computers and projectors that simply refuse to focus. While technical issues are sometimes unavoidable, familiarity with your equipment, software and exhibits is the best insurance against presentation mishaps during trial.

Your ability to show electronic presentations of graphics to jurors varies by courtroom. Attorneys should consult the local rules, as well as the courtroom clerk regarding use of such items at trial. For example, Los Angeles Local Rule 8.74 states:

A graphic device, such as a chart, summary or model, which is not in evidence and isto be used for illustration only in argument shall be shown to adversaries before commencement of the argument. Upon request by an adversary, it shall remain available for reference and be marked for identification.

Thus, even if you do not plan to admit the document or presentation into evidence, your judge may require that you allow opposing counsel to view the item before you show it to the jury. Furthermore, opposing counsel may be able to attack the item or use it to his or her benefit later in the case, all important considerations when preparing a presentation or graphic.

Many courtrooms, notably the U.S. District Court, Central District of California in Orange County, California, make certain presentation devices available to attorneys. Equipment may be rented with advance reservation in the Los Angeles Superior Court Central District Mosk Courthouse. Other courtrooms have been slower to update their electronic presentation capabilities. Some courtrooms may not even have internet connections. It is imperative that attorneys contact the courtroom assistant and determine what is available, including items such as the following:

• Chalkboards/Whiteboards (and related accessories)
• The number of outlets in the courtroom and whether they are accessible
• Is wireless internet access available in the courtroom?
• Is there a projection screen and/or blank wall?
• Does the courtroom have any presentation equipment (such as an LCD screen) that requires special wires or software for connectivity?
• Do the attorneys need to bring any additional tables and stands for a projector?
• Does the court have its own Elmo presentation device?
• Does the court have its own speakers for presenting audio?

In addition to calling the court, the attorney will benefit from visiting the courtroom before trial to evaluate any space restrictions and determine the appropriate location for presentation devices. If time permits, observing the court’s current trial can also give attorneys a feel for how the court treats trial technology as well as how other attorneys using the technology.

Litigators are increasingly incorporating technology into the courtroom. Particularly in document-heavy cases, presenting electronic documents and files to the jury can be more efficient than using paper exhibits, and can provide jurors with useful and more interesting visuals. This series of blog entries will explore the exciting area of trial technology, from software to attorneys’ personal experiences using technology in the courtroom.