After two long years collecting hundreds of gigabytes of e-mail, data base reports, and social media posts from countries in Europe, Asia, and South America, such as France, South Korea, Argentina, Canada, Australia, and El Salvador, the day of trial has arrived. The trial team has obtained the data at great cost, in dollars as well as person-hours, but is finally ready for trial. First-chair counsel, second-chair counsel, and four paralegals file into the courtroom, not with bankers boxes full of documents as in earlier times, but with laptops, tablet computers, and a data projector. Following opening statements, the first witness takes the stand. After a few questions about the existence of e-mails written by executives of the defendant multinational corporation, a paralegal moves to the projector, as she rehearsed many times, to flip on the switch that will project the e-mails for the jury. She hears, “Objection!” followed immediately by, “Sustained.” Counsel asks for a sidebar. Instead, the judge asks the court officer to take the jury out. She then notes that these e-mails, the production of which she had ruled upon previously, were created outside the U.S. Who will testify to their authenticity? What was the chain of custody—were they altered in some fashion in the office or between the client’s servers and counsel’s laptop? How, exactly, do the e-mails fit into an exception to the hearsay rule? Business records? What is the “business” of this foreign facility that requires the use of e-mail on a regular basis? Counsel asks for a continuance to respond to those questions. “Denied!” the judge says.
Kenneth N. Rashbaum, Matthew F. Knouff & Dominique Murray,
Admissibility of Non-U.S. Electronic Evidence,
Rich. J.L. & Tech
Available at: http://scholarship.richmond.edu/jolt/vol18/iss3/3