Here’s Another Sedona Conference Commentary, This Time on ESI Evidence & Admissibility: eDiscovery Best Practices

Yet another story I’ve been meaning to cover.  Earlier this month, The Sedona Conference® (TSC) and its Working Group 1 on Electronic Document Retention & Production (WG1) announced publication of the Final Post-Public-Comment Version of The Sedona Conference Commentary on ESI Evidence & Admissibility, Second Edition.

With the increasing digitization of information in society, more relevant evidence is being sourced from electronically stored information (ESI), which means that successful litigators must understand how to get ESI admitted into evidence, not to mention understand how to preserve or gather it for discovery. As U.S. District Judge Paul W. Grimm noted in the case Lorraine v. Markel American Insurance Co., “it makes little sense to go to all the bother and expense” of electronic discovery only to have that evidence excluded when it really matters. This Commentary focuses specifically on that concern.

The First Edition of this Commentary was published in 2008. This Second Edition provides updated guidance that reflects the advances in technology and the 2017 and 2019 amendments to the Federal Rules of Evidence, in particular Rules 803(16), 807, and 902(13) and (14). For example, the changes to Rule 803(16) address authentication of digital information that has been stored for more than 20 years, eliminating the concern that factual assertions made in massive volumes of ESI will be admissible for the truth simply because of their age. The new subsections (13) and (14) to Rule 902 provide for streamlined authentication of ESI and potentially eliminate the need to call a witness at trial to authenticate the evidence.


This 141 page PDF Commentary is divided into three parts. First, there is a survey of the application of existing evidentiary rules and case law addressing the authenticity of ESI. Second, there are discussions about new issues and pitfalls, such as ephemeral data, blockchain, and artificial intelligence, looming on the horizon. Finally, there is practical guidance on admissibility and the use of ESI in depositions and in court.  There are also four Appendices: Summary Federal Rules of Evidence 901 and 902 Rules for Authentication, Committee Note on Rule 807, 12 V.S.A § 1913. Blockchain enabling and Checklist of Potential Authentication Methods.

You can download a copy of the Commentary here (login required, which is free).

So, what do you think?  Is your organization up on the latest rule changes regarding the Federal Rules of Evidence?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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