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Are you facing a mountain of electronic discovery and wondering if you can get it into evidence? Take heart: A recent 101-page opinion out of Baltimore, issued in a case involving a small maritime insurance dispute, tells you how. The opinion, written by U.S. Magistrate Judge Paul Grimm, is a road map to how to use the fruits of electronic discovery as evidence at trial. But be careful. For all of Grimm’s step-by-step directions, he includes a detour through electronically generated information that could be a highway to nowhere. And whether you agree with his conclusions or not, you are almost certain to see Grimm’s opinion in future disputes about the admissibility of electronic information at trial. Although the case ( Lorraine v. Market American Insurance) began as a $15,000 insurance dispute when lightning struck a yacht anchored in the Chesapeake Bay, Grimm’s May 4 opinion veered off on an entirely different tack to give lawyers a clear, step-by-step framework for understanding how electronic evidence fits — or does not fit — into courtroom evidence. The Lorraine opinion is important. Grimm provides an evidentiary manual of how to use documents that people create and store in computers as evidence at trial. In other words, this opinion will turn out to be a great study guide for corporate counsel confronting electronic evidence at trial. Because the object of electronic discovery is supposedly to gather evidence for trial, Grimm’s observations also shed important light on questions of e-discovery. LOOK WHO’S TALKING Perhaps the more important — and interesting — aspect of Grimm’s opinion is his conclusion that information he describes as “electronically generated” is completely outside the hearsay rule. The hearsay rule is among the best known and important of the gate-keeping rules to screen evidence before it reaches the jury. Under the hearsay rule, a statement made outside of court may not be offered into evidence for its truth unless the statement falls within one or more specific exceptions (for example, when the statements are contained in business records, made by employees or agents, or made against the speaker’s interests). Hearsay evidence is excluded at trial because there is no opportunity to cross-examine its creator to determine how reliable the evidence is. By electronically generated information, Grimm means information a computer creates itself. Electronically generated information can take a variety of forms. Grimm cites as an example the report a fax machine prints whenever a fax is sent. Another example (but which he does not cite) is “metadata.” Metadata is information “created” by the computer that records (often without the user’s knowledge and often without the user ever seeing it) what has happened to a particular document, such as who created the document, when it was created, who viewed it, and who changed it. Treating electronically generated information as outside the hearsay rule has consequences. If electronically generated information is outside the hearsay rule, it can be used for a number of purposes at trial. And if that is so, then electronically generated information becomes an even more valuable discovery target. When Grimm excluded electronically generated information such as fax reports and metadata from the hearsay rule, it was not because he concluded it was somehow inherently more reliable than other evidence. Instead, he said it can’t be considered hearsay because it’s a statement “made” by a computer instead of by a human, and the hearsay rule applies only to humans who make statements. Grimm reasoned that when a fax machine issues a report saying a fax was sent, it is the fax machine that is the “declarant.” Using the same logic, when a computer collects and exports metadata information about when a file was created, who created it, and who changed it, it is a computer doing the talking. Because the rules of evidence say a hearsay declarant must be human, Grimm concluded, information created by a computer simply could not qualify as hearsay. And this is where Grimm makes his detour. When he concluded that a fax machine or computer is the “declarant” of electronically generated information, Grimm surprisingly didn’t answer an important question: Can fax machines and computers really be “witnesses”? The rules of evidence require witnesses to have personal knowledge of the events they describe — or the testimony is not evidence — and, obviously, a computer simply cannot have personal knowledge. Even if we ignore the personal knowledge problem and treat a fax machine or a computer as a witness, why should the fax machine or computer’s “statements” be attributed to its owner? A computer isn’t the owner’s employee or its agent: both terms apply only to humans — which was Grimm’s reason for excluding electronically generated information from the hearsay rule in the first place. Besides, if a computer is really following a software programmer’s instructions when it makes its “statement,” why should those statements be attributed to a user or owner who had nothing to do with the programming? Some courts may accept Grimm’s analysis at face value, and you must be prepared for that. But other courts may consider it a dead end that leaves all of this electronically generated information in the middle of nowhere. After all, if computers can’t be witnesses, then their “statements” most likely aren’t evidence and may not be admissible at all. In short, treating computers as declarants and putting their “statements” outside of the hearsay rule may be an evidentiary cul-de-sac. SOME WAY OUT OF HERE The only way out of a cul-de-sac is a U-turn, and here it might save the day. Recall that it is Grimm’s decision to treat machines as the declarants of electronically generated information that creates this problem. If a human declarant were actually at the heart of this electronically generated information, then it could easily be analyzed under the hearsay rule. And conveniently, there really is a human “declarant” behind electronically generated information. Consider a fax report. The fax report is a statement that a fax containing a certain number of pages was sent to a certain number at a certain time. It is a human’s statement because it was a human who wrote the software program that spells out the exact conditions under which the fax report will be printed and what it will say. When a fax report is created, it is the software programmer’s statement that those predetermined conditions have been met. Of course, the programmer does not actually witness any faxes being sent, but that does not matter under the hearsay rule. The hearsay rule does not require that a declarant actually witness the events described in her declaration to be considered a “declarant” under the rule. In fact, one reason we do not allow hearsay testimony is that the declarant is not available for cross-examination about what she observed (if anything). Once the information is treated as hearsay, Grimm’s opinion lays out the circumstances in which it might be admitted as evidence. For example, did the producing corporation maintain the fax report as a business record? If so, it might qualify for an exception under the hearsay rule. But whatever the answer to that particular question, at least it affords a well-recognized and well-tested framework for dealing with such evidence. There is even an advantage to treating fax reports and other electronically generated information as hearsay. Under Grimm’s approach, a fax report qualifies as evidence of when a fax was sent, even if the clock on the machine is blinking “12:00″ and was never properly set. But if treated as hearsay, the fax report would most likely be allowed into evidence under the business records exception. And if the fax machine’s owner used fax reports as business records, we can more safely assume that the business made sure that the machine’s clock was accurately set. These concerns are not merely academic. They go directly to the rising costs of litigation. Last year’s amendments to the discovery rules opened the floodgates of electronic discovery, which can be expensive and time-consuming. Yet the changes did not address whether any of the resulting discovery materials were actually admissible at trial. To be sure, parties may seek discovery of materials that are not admissible. But courts are charged with weighing the burdens and benefits of discovery. If a party seeks discovery of electronically generated information such as metadata, which may not be evidence at all — or at best, hearsay — the courts might do well to consider such discovery unjustified, particularly considering that the desired information might be found through more traditional and less burdensome means. But whether electronically generated information is evidence at all or hearsay, Grimm’s opinion has given corporate counsel and their trial lawyers much to think about as they prepare to prove their cases with electronic information. Lawyers may ignore this opinion at their peril and hope that lightning strikes for them — but as Grimm observed, “counsel would be wise not to test their luck unnecessarily. If it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied.”
Bradford E. Biegon is of counsel at Washington, D.C.’s Spriggs & Hollingsworth.

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