The second in a three-part series identifying the witnesses whose depositions are commonly taken in cases where electronically stored information will shape settlement or trial outcomes.

Electronically stored information, a critical category of evidence in nearly all non-trivial legal disputes, is usable only to the extent that it can be located, authenticated, and described with foundational evidence that ensures admissibility at trial. Typically, counsel will secure deposition support for ESI from five categories of witnesses: Rule 30(b)(6) witnesses, party electronic document custodians, non-party electronic document custodians, forensic experts, and former employees.

A 2018 survey of litigators, conducted by Bloomberg Law, found that that the need to manage ESI was the leading reason why attorneys are conducting more depositions than prior years.

A prior post discussed the significance of the Rule 30(b)(6) witness, the party-designated individual prepared to discuss all aspects of the party’s information technology operations. Rule 30(b)(6) witnesses provide the best evidence on where relevant ESI may be found, and on what efforts the party has made to locate and preserve such evidence.

This post will examine the role of two other important witnesses — party electronic document custodians and non-party electronic document custodians – whose role it is to authenticate ESI and to provide a sound foundation for admissibility at trial.

Pretrial discovery of electronically stored information will not promote settlement or persuade judges or juries unless that evidence is ultimately admissible at trial. Even after counsel has learned the extent of relevant ESI through Rule 30(b)(6) depositions and interrogatories, and has obtained ESI via document requests, the problem of admissibility remains to be solved.

Before it will be allowed into evidence, ESI faces evidentiary challenges for authenticity, hearsay, and relevance. For this reason, the discovery of important ESI via document requests and Rule 30(b)(6) depositions — particularly hearsay or matters outside the direct knowledge of the deponent — should lead counsel to consider additional depositions designed to guarantee the admissibility of that testimony. In many cases, this means deposing the electronic document custodian.

As magistrate judge Paul W. Grimm observed in Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), a landmark e-discovery opinion,

It makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.

The Opponent’s Electronic Document Custodian

Recent amendments to Federal Rule of Evidence Rule 902 have substantially eased the task of authenticating ESI for use at trial by creating two classes of “self-authenticating” electronic evidence. These are for “records generated by an electronic process or system” (Rule 902(13)) and for “data copied from an electronic device, storage medium or file” (Rule 902(14)). A pretrial certification from a qualified individual will be necessary to authenticate these types of ESI.

In all other cases, ESI will have to be authenticated either through admissions or deposition testimony from the relevant ESI custodian indicating that the ESI in question is, in fact, what it purports to be.

Deposition testimony from the opponent organization’s ESI custodian may also be necessary if the proponent is attempting to overcome hearsay objections by arguing that the ESI meets an exception to the hearsay rule (e.g., the business records exception) or is in fact not hearsay at all.

Non-Party Electronic Document Custodians

Due to the distributed nature of computer networks and the prevalence of outsourcing of critical data processing and storage needs, relevant ESI will frequently be in possession of non-parties to the litigation. Social media websites, telecommunications companies, and internet service providers are just a few of the many non-parties in possession of relevant and discoverable ESI in business litigation.

Federal and most state laws permit discovery from non-parties, even across state laws. Many states have adopted the Uniform Interstate Depositions and Discovery Act, a potent tool for enforcing out-of-state document requests. At the federal level, Rule 45 of the Federal Rules of Civil Procedure explicitly provides a right to discover ESI in possession of non-parties, and it does so nearly to the same extent as e-discovery is authorized between parties under Rules 26 and 34.

For these reasons, subpoenas for ESI and supporting deposition testimony from non-party ESI custodians have become commonplace in civil litigation.

Conclusion

The custodian of electronically stored information can give authoritative testimony explaining the circumstances under which ESI was created, how it is processed and stored, and whether or not it has been altered in any way before being offered into evidence at trial. For this reason, deposition testimony from the custodian of ESI is critical to overcoming evidentiary challenges to the admission of ESI at trial.

Part Three: Deposing Forensic Experts and Former Employees Regarding ESI


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