Forsheit 2010 (†618)Forsheit, Tanya L. "E-Discovery Involving Cloud Facilities" Computer and Internet Lawyer 27:12 (December 2010), p.1-7.
- best evidence (p.6): Like any other litigant purporting to introduce ESI as evidence, a litigant introducing cloud data must be able to demonstrate that the ESI [electronically stored information] is relevant and authentic, that it is not precluded by the hearsay rule (or fits within one of its exceptions) or the best evidence rule, and that its probative value is not substantially outweighed by the danger of unfair prejudice. As noted by the court in Lorraine : Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. Litigants may find a number of these evidentiary hurdles particularly challenging when it comes to cloud data, especially authenticity and hearsay. The proponent of even an email, blog post, IM, tweet, or other communication that resides only in the cloud may need to secure declarations, deposition testimony, or even live testimony of the author(s), the recipient(s), the data custodian, and/or the cloud provider itself. The same analysis must be considered for each and every such communication. (†1409)