• Richmond JOLT

Admissibility of Non-U.S. Electronic Evidence

In the early days of eDiscovery academia, admissibility was an often forgotten topic. It drifted alone in the CLE Sea filled with preservation “best practices” and statistics on how many Libraries of Congress the gazillion printed pages toiling within one GB of data could fill. Even today, the topical focus of many an eDiscovery article can seem repetitive even to the uninitiated. One area, which is sometimes overlooked for seemingly more adventurous topics (though admittedly is covered with increasing depth and frequency), is admissibility. Add the cross-border wrinkle into the mix and you have an even more novel blend.

This article will discuss the parameters for the admissibility of electronic information from outside the U.S. in the context of trials as well as motions that require the support of proof in admissible form. It will provide guidance to the practitioner and the court on the admissibility of various types of electronically stored information (“ESI”) that have been created, or are maintained, outside the borders of the United States. Section II will comprise a review of the rules for admission of evidence in U.S. Courts and their application to electronic evidence obtained abroad at various stages of the litigation lifecycle. Section III will discuss challenges to the use of non-U.S. ESI arising from conduct during pretrial discovery. Section IV will analyze the admissibility of non-U.S. ESI in motion practice. Section V will address authentication of specific categories of ESI encountered in cross-border matters such as e-mails, instant messages and chat logs, social media sites, Internet tracking information, and printouts of the same.

Source Publication: Richmond Journal of Law and Technology – Volume XVIII, Issue 3
Authors: Kenneth N. Rashbaum, Matthew F. Knouff, and Dominique Murray
Cite: Kenneth N. Rashbaum, Matthew F. Knouff & Dominique Murray, Admissibility of Non-U.S. Electronic Evidence, XVIII RICH. J. L. & TECH. 9 (2012), http://jolt.richmond.edu/v18i3/article9.pdf