1 LSBA "Uncorked: A CLE Adventure in California 's Wine Country" ESI: Electronically Stored Information - Securing, Safeguarding, Submitting and Screwups (Spoliation) March 24, 2014 Sonoma, California Brooke Barnett Bernal The Long Law Firm Baton Rouge, LA Michael A. Patterson The Long Law Firm Baton Rouge, LA Edward J. Walters, Jr. Walters, Papillion, Thomas, Cullens Baton Rouge, LA
2 S. Brooke Barnett Ms. Barnett is a partner with the Long Law Firm and joined the firm in Her practice areas primarily include construction litigation, business litigation, professional liability, professional malpractice defense of accountants, architects and engineers and business transactions. Ms. Barnett-Bernal was born in Richmond, Virginia. Ms. Barnett-Bernal has also lived in Tulsa, Oklahoma and Natchitoches, Louisiana, where she attended high school. She moved to Baton Rouge to attend Louisiana State University, where she graduated summa cum laude with a Bachelor of Arts degree in 2003 and a Bachelor of Science degree in Ms. Barnett-Bernal double majored in Spanish and International Trade and Finance. Ms. Barnett-Bernal graduated in May 2007 from Louisiana State University s Paul M. Hebert Law Center, earning a Juris Doctorate degree and a Bachelor of Civil Law degree. Ms. Barnett is fluent in Spanish.
3 MICHAEL A. PATTERSON is a graduate of the LSU Law Center and is the senior litigation partner with Long Law Firm in Baton Rouge, Louisiana. He received the Certificate and LLM in Dispute Resolution from Pepperdine University. He is the managing member of The Patterson Resolution Group which provides mediation and arbitration services throughout the State of Louisiana in complex legal matters. He serves on the adjunct faculty of the LSU Law Center and, along with Ed Walters, teaches a course in trial advocacy and evidence. He is the author of many legal articles and is the chapter author of Louisiana Trial Procedure, Hearsay. He is a past president of the Louisiana State Bar Association and the Baton Rouge Bar Association. He is past Chairman of the Louisiana Supreme Court Committee on Bar Admissions. He received the LSU Law Center Distinguished Achievement Award in 2013.
4 Edward J. Walters, Jr., a partner in the Baton Rouge law firm of Walters, Papillion, Thomas, Cullens, received his B.S. from LSU in 1969 and his J.D. from the LSU Law Center in He has practiced in the Baton Rouge area for over 38 years representing plaintiffs in personal injury cases. He is Board Certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Trial Advocates and is a Fellow of the American College of Trial Lawyers and the International Academy of Trial Lawyers. He is an Adjunct professor of law at the LSU Law Center where he and Mike Patterson jointly teach a trial skills course entitled "Advanced Trial and Evidence Seminar." He is a frequent lecturer and writer on litigation, evidence, ethics and professionalism topics and has been the editor of the Baton Rouge Bar Association's monthly magazine Around the Bar for over 28 years.
5 TABLE OF CONTENTS PART I LEGAL FRAMEWORK 1 Duty to Preserve Evidence 4 What to Do When Notice is Received 5 Document Retention Policy 8 PART II SUBMITTING: GETTING IT IN AND KEEPING IT OUT 9 Back to Basics 9 Relevance and Unfair Prejudice 10 Authentication 11 Rule The Easy Way 14 Judicial Notice? 15 Isn't It Hearsay 15 Business Records 16 Original Writings Rule Authenticating 19 Web Pages 21 Two Cases Going Different Directions 21 Facebook Postings 24 My Space Postings 25 Back to Basics Again 26 PART III SCREWUPS (SPOILATION) 27 Introduction 27 Federal Law 27
6 The Courts Inherent Authority 28 Factors For Spoliation Sanctions 29 Level of Mental Culpability 31 Rule 37 of the Federal Rules of Civil Procedure 36 State Law 38 CONCLUSION 40 ATTACHMENT: A-Litigation Hold Policy B-Document Retention Policy
7 1. LEGAL FRAMEWORK. State Law. In Louisiana, a party may serve on another party requests to produce "designated documents or electronically stored information." La. Code of Civ. Proc. art 1461 "A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the party from whom discovery is sought shall show that the information is not reasonably accessible because of undue burden or cost. If the showing is made the court may nonetheless order discovery from such sources if the requesting party shows good cause." La. Code Civ. Proc. art. 1462(B)(2) "If the request does not specify the form or forms for producing information, including electronically stored information, a responding party shall produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. When electronically stored information is produced, the responding party shall identify the specific means for electronically accessing the information." La. Code Civ. Proc. art. 1462(C). Federal Law. Fed. R. Civ. P. 34 allows a party to request the production of any designated documents or electronically stored information. Fed. R. Civ. P. 34(a)(l)(A). A response may state an objection to the requested form for producing electronically stored information. If there is an objection to the requested form the party responding must state the form or forms it intends to use. Fed. R. Civ. P. 34(b)(2)(D) Documents including electronically stored information which are produced "must be produced as they are kept in the usual course of business or must be organized and labeled to correspond to the categories in the request." Fed R. Civ. P. 34(b)(2)(E)(i). "If a request does not 1
8 specify a form for producing electronically stored information a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms... A party need not produce the same electronically stored information in more than one form." Fed. R. Civ. P. 34(b)(2)(E)(ii-iii). Fed. R. Civ. P. 34 allows a requesting party to enter upon the property of the responding party to "...inspect, measure, survey, photograph, test or sample the property or any designated object or operation on it." Fed. R. Civ. P. 34(a)(2) In Louisiana, La. Code Civ. Proc. arts and 1462(E) provides that the responding party must be given the opportunity to produce the requested ESI from its computer. Fed. R. Civ. P. 26(b)(2)(B) specifically provides that a responding party does not need to produce ESI from sources that the "party identifies as not reasonably accessible because of undue burden or cost." Comment A to the 2007 amendment to La. CCP art state in part, "This authorization does not require a responding party to produce electronically stored information from sources that are shown not to be reasonably accessible because of undue burden or cost. When the responding party presents a valid objection to production on this basis the court may consider production under more convenient and less burdensome conditions and with an allocation of the cost of production between the parties." In La. Workers' Comp. Corp. v. Quality Exterior Serv., LLC, (La. App. 1st Cir. 5/2/12) 925 So.3d 1034, the Court had before it the issue of when the requesting party sought ESI relating to a specific insurance policy year to be produced in native format, LWCC objected to the production in the native format alleging that such production would be unduly burdensome. LWCC's objection was based upon its assertion that the steps necessary to provide the information in the form requested would require a review of the earliest backup data which was effective January 2005 which was located on a 2005 year end back up tape. It further 2
9 contended that it no longer possessed the necessary software and hardware to access the information contained on the 2005 year end back up tape. The Court of Appeal, in reversing the ruling of the trial court, ordered LWCC to produce the requested information finding the explanation for failure to produce not persuasive. A series of related opinions from the federal court in the Southern District of New York answered many of the questions on production of ESL In the first of these cases, Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309(S.D.N.Y. 2003), a discovery dispute arose in a gender discrimination case when the plaintiff sought "[a]ll documents concerning any communication by or between UBS employees concerning plaintiff." Id. at 312 (quoting Plaintiff s First Request for Production of Documents). The term document included electronic or computerized data compilations. Apparently the employer had never searched responsive s on any of its back-up tapes. The employer stated that the cost of producing s on backups would be prohibitive. The Court stated Fed. R. Civ. P. 26(b)(2) imposes a "proportionality test" on the scope of discovery. The court observed that the presumption under the federal rule is that the responding party must bear the expense of complying with the request, but that a party may request the court to issue a protective order, protecting it from undue burden or expense. The court noted the solution to this dilemma of cost associated with retrieving information is to consider "cost shifting," that is to force the requesting party rather than the answering party to bear the cost of discovery. The court cites to the case of Rowe Entm 't v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y 2002), favorably commenting on the eight (8) factors to be used to determine whether discovery costs should be shifted. The eight (8) factors cited are: 1. The specificity of the discovery request; 2. The likelihood of discovery of critical information; 3
10 3. The availability of such information from other sources; 4. The purposes for which the responding party maintains the requested data; 5. The relative benefits to the parties of obtaining the information; 6. The total cost associated with production; 7. The relative ability of each party to control costs and its incentive to do so; 8. The resources available to each party. The court noted that "cost shifting"... should be considered only when electronic discovery imposes an undue- burden or expense on the responding party." The court proceeded to modify the Rowe test, finding it to be incomplete. The court developed a new seven (7) test factor based on the modification to Rowe. The seven (7) factors adopted were: 1. The extent to which the request is specifically tailored to discover relevant information; 2. The availability of such information from other sources; 3. The total cost of production compared to the amount in controversy; 4. The total cost of production compared to the resources available to each party; 5. The relative ability of each party to control costs and its incentive to do so; 6. The importance of the issues at stake in the litigation; 7. The relative benefits to the party of obtaining information. The next case in the series Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280( 2003), the court applied its modified Rowe formula and determined that the shifting of one-fourth of the estimated $166,000 necessary to restore and search the back up tapes was appropriate. 2. THE DUTY TO PRESERVE EVIDENCE "The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation. If a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence." Silvestri v. Gen. Motors Corp., 271 F.3d 583,591(4 1 Cir. 2001) (citing Kronish v. U.S., 150F.3d 112, 126 (2 d Cir. 1998)). h 4
11 Silvestri was involved in a car accident where an air bag did not deploy during the accident. Silvestri and his attorney failed to preserve the vehicle which was subsequently repaired and sold by the owner's insurer. The court found that the failure to preserve warranted that the manufacturer, General Motors which was prejudiced to the point where the only appropriate sanction was dismissal of the claim. Two questions must be asked when considering the duty to preserve. When does the duty begin and what evidence must be preserved? The American Bar Association's Civil Discovery Standard, Standard No. 10, "Preservation of Documents" states in part, "When a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced the lawyer should inform the client of its duty to preserve potential and relevant documents and of the possible consequences for failure to do so." The question is really no longer whether there is a duty to preserve electronically stored information, the real question is what is the scope of this duty? In Zubulake, the court stated, "[O]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible back-up tapes, (e.g. those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy. On the other hand, if back-up tapes are accessible (i.e. actively used for information retrieval), then such tapes would likely be subject to the litigation hold." 220 F.R.D. 212,219 The American Law Institute's Restatement of the Law Governing Lawyers, 118, "Falsifying or Destroying Evidence" states, "[a] lawyer may not destroy or obstruct another 5
12 party's access to documentary or other evidence when doing so would violate a court order or other legal requirements, or counsel or assist a client to do so." 2 The Restatement goes on to add "[i]t is presumptively lawful to act pursuant to an established document retention destruction program that conforms to existing law and is consistently followed, absent a supervening obligation such as a subpoena or other lawful demand for or order relating to the material." Id.at comment c. "Counsel and client must act to preserve evidence as soon as they are on notice of its relevance to current or future litigation." Michael C. Miller & Jeffrey M. Theodore, Keeping The Nightmares At Bay, 40 Litigation 14, (2013). 3. WHAT TO DO WHEN NOTICE IS RECEIVED? A party has to preserve evidence when it has "notice that the evidence is relevant to the litigation or when a party should have known that the evidence may be relevant to future litigation" 3 The events which can constitute a trigger to institute the obligation of preservation and a legal hold may start with a discussion with key employees to hold on to specific files and data until it is determine that further action is necessary. Be alert to what documents may be in line for routine document destruction. The Sedona Conference produced a commentary on legal holds which included four (4) guidelines which are produced below: Guideline 1 A reasonable anticipation of litigation arises when an organization is on notice of a credible probability that it will become involved in litigation, seriously contemplates initiating litigation, or when it takes specific actions to commence litigation. Guideline 2 Adopting and consistently following a policy or practice governing an organization's preservation obligation is one factor that may demonstrate reasonableness and good faith. 2 American Law Institute, RESTATEMENT (THIRD) OF THE LAW: THE LAW GOVERNING LAWYERS 118(2)(2000). 3 Eckhardt v. Bank of America, N.A., No. 3:06CV512-H, 2008, WL , at *S(W.D.N.C. May 6, 2008) 6
13 Guideline 3 Adopting a process for reporting information relating to a probable threat of litigation to a responsible decision maker may assist in demonstrating reasonableness and good faith. Guideline 4 Determining whether litigation is or should be reasonably anticipated should be based on a good faith and reasonable evaluation of relevant facts and circumstances. Sedona identifies a series of factors pertinent to the issue of whether litigation should be reasonably anticipated. They include: The nature and specificity of the complaint or threat; The party making the claim; The position of the party making the claim; The business relationship between the accused and the accusing party; Whether the threat is direct, implied or inferred; Whether the party making the claim is known to be aggressive or litigious; Whether a party who could assert a claim is aware of the claim; The strength, scope and value of a potential claim; The likelihood that data relating to a claim will be lost or destroyed; The significance of the data to the known or reasonably anticipated issues; Whether the company has learned of similar claims; The experience of the industry; Whether the relevant records are being retained for some other reason; and Press and/or industry coverage of the issue directly pertaining to the client, or of complaints brought against someone similarly situated in the industry. Sedona Conference Commentary on Legal Holds: The Trigger & The Process, 201O(Excerpts) Once the decision is made that a preservation obligation exists the next question is what to preserve and how to preserve it. Here is a checklist for a legal hold policy: 1. Notification should be issued in written form; 2. Issue the notification in a timely manner; 3. Identify and focus on key players; 4. Obtain affirmative custodial responses and continue to monitor compliance; 5. Include clear direct instructions for compliance to custodians; 6. Periodically reissue hold so that the obligation is fresh in employee's minds; 7. Counsel must supervise the employees preservation efforts and compliance; 8. Suspending automatic deletion and preserving back up media should be undertaken when warranted as part of the overall mix of preservation steps. Legal Hold and Data Preservation Best Practices, Implementing and Managing the Legal Hold, December
14 Monitor progress and establish a process which is re-evaluated as the dispute evolves. Determine when the dispute is over. Once the dispute is terminated, normal destruction procedures can be re-implemented. The hold needs to allow clients and employees to clearly determine what documents they need to preserve. The lawyer's job is not simply to issue a litigation hold, but to take affirmative steps to monitor and ensure compliance. It is recommended that counsel speak with key employees that are most likely to have relevant information. If necessary, it is a good practice to obtain signed acknowledgements from key employees of their obligation to preserve documents. (See attached Sample) 4. DOCUMENT RETENTION POLICY Document retention policies have been around forever but its been noted in recent studies "3...that 93% of all documents" originate in an electronic format. Andrew R. Lee, "Keep or Toss? Document Retention Policies in the Digital Era, 55 La. Bar Journal 240 (2007). The fact that many electronically stored and created documents never make it to hard copies presents businesses with serious questions of how long should you retain and store the material. Should you store it indefinitely with its' attendant costs or destroy and risk a claim of spoliation. "A records management program establishes a system whereby the company deliberately designates the records that it will maintain, the period of time for maintenance of such records, and the procedure for their destruction. The goals of such a program are to retain only those documents that are necessary to comply with the law and that benefit the company (and for only that long) and to maintain securely the materials that must be kept for legitimate reasons." Id at 242. In accordance with that, an effective program should accomplish the following: 1. Identify those documents that must be maintained in accordance with the law; 2. Identify those documents that the business must keep to effectively function; 8
15 3. Track the company's maintenance efforts; 4. Create a schedule for the systematic destruction of records in accordance with the above guidelines; 5. Effectively destroy the documents that are scheduled for elimination under the program; 6. Monitor and audit the company's execution of the program. See attached Sample Document Retention Policy. Submitting: Getting It In and Keeping It Out As we are all aware, the rules of evidence were written for a time when we only dealt with paper documents and tangible things. Those days are long-gone, but, since the rules have not changed, how do we get our electronically stored information (ESI) into evidence? How do we keep theirs out? Back to Basics When it comes to determining what foundation is necessary to admit electronic evidence, we should first go back to basics: Is it relevant? Is it what it purports to be? Is it hearsay? Is there an exception? Does it violate the original writings rule? Does its prejudicial effect outweigh its probative value? Questions concerning ESI' s relevancy and unfair prejudice are much the same as in other types of evidence, but issues concerning authenticity, the original writings rule and hearsay are the most problematic. Much of our discussion will be based on the Federal Rules of Evidence, which, as we all know, are extremely similar to the Louisiana Code of Evidence. Where meaningful differences arise between the Federal Rules and the Louisiana Code of Evidence, those differences will be pointed out. 9
16 The Federal Rules of Civil Procedure were amended in 2006 to accommodate the discovery of electronically stored information (ESI). The rule amendments reflected the reality that the evidence in virtually every piece of civil litigation now involves some information stored in electronic form. In response to the new discovery rules, practitioners learned how to use the new discovery rules. What was largely neglected, however, was an equally important question: once you've gone to the trouble and expense of obtaining that extremely damaging , web page, Facebook posting, Myspace posting, instant message, text message, or blog post, how do you get it into evidence at trial or in response to a summary judgment motion? There are five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence: Relevance (Fed. R. Evid. 401) Authenticity (Fed. R. Evid. 901 and 902) Hearsay (Fed. R. Evid. 801, 803, 804, 807) Original Writing, a.k.a. Best Evidence Rule (Fed. R. Evid ) Unfair Prejudice (Fed. R. Evid. 403) Relevance and Unfair Prejudice Let's start with the easy ones. A determination of relevance or unfair prejudice of ESI is no different than that determination when analyzing other types of evidence. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid
17 The court may also exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid 403 Authentication In order to properly authenticate a document the lawyer must provide evidence sufficient to support a finding that the information in question is in fact what its proponent claims it to be. Fed. R. Evid 901 Seems simple enough, doesn't it? Just prove it is what you say it is. While there is a paucity of Louisiana jurisprudence on this issue, and not much more elsewhere, there is one leading repeatedly-cited 100 page exegesis from Maryland. In Lorraine v. Markel Ins. Co, 241 F. R. D. 534 (D. Md. 2007) the court was faced with divining what steps are necessary to introduce copies of correspondence. The beginning paragraph of the judge's discussion of the admissibility of ESI sets the framework: Be careful what you ask for, the saying goes, because you might actually get it. For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information ("ESI"). The adoption of a series of amendments to the Federal Rules of Civil Procedure relating to the discovery of ESI in December of 2006 has only heightened, not lessened, this discussion. Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes "such facts as would be admissible in evidence" for use in summary judgment practice. FED. R.CIV.P. 56(e). This is unfortunate, because considering the significant costs associated with discovery of ESI, 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 process is complicated by the fact that ESI comes in multiple evidentiary "flavors," including , website ESI, internet postings, digital photographs, and computergenerated documents and data files. 1 1
18 The big issue with ESI is usually its authenticity. Fed.R Evid. 901(a) defines authenticity: "the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, a party seeking to admit an exhibit need only make a prima fade showing that it is what he or she claims it to be. The Manual for Complex Litigation highlights some of the unique concerns about the accuracy and authenticity of ESI: Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions. The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling. The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy. The judge should therefore consider the accuracy and reliability of computerized evidence, including any necessary discovery during pretrial proceedings, so that challenges to the evidence are not made for the first time at trial. Manual for Complex Litigation (4th ed. 2000) The extent of the showing necessary to authenticate a piece of electronic evidence will depend on the nature of the evidence and its evidentiary purpose. It appears that the courts are not calling out for "new" rules to handle ESI, but are using the existing rules but with more scrutiny when dealing with ESL In In Re Vee Vinhnee, 336 B.R. 437 (B. A. P. 9th Cir. 2005) the court addressed the authentication of ESI and stated, "Authenticating a paperless electronic record, in principle, poses the same issue as for a paper record, the only difference being the format in which the record is maintained.... The paperless electronic record involves a difference in the format of 1 2
19 the record that presents more complicated variations on the authentication problem than for paper records. Ultimately, however, it all boils down to the same question of assurance that the record is what it purports to be." Rule 901(a) addresses the requirement to authenticate ESI, but Rule 902(b) attempts to set forth a non-exclusive list of examples of HOW to fulfill that requirement. The pertinent subparagraphs follow: (1) Testimony of witness with knowledge. A witness could testify that he recognizes a copy of an that he drafted or received. An authenticating witness need not have personal knowledge of the particular exhibit if he can attest to "the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change." Lorraine, 241 F.R.D. at 545 (3) Comparison by trier of fact or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. If one has been properly authenticated, a second could be authenticated through comparison with the first. See U S. v. Sa/avian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006). (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. Using circumstantial evidence, for example, the presence of a party's name and address could establish the authenticity of an . Some documents contain "metadata," such as a file's name, location, format, size, creator, time and date created, and modification history which could be a "signature" identifying the document and its creator. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. Custody may be established by a certificate of authenticity from the public office or through the testimony of the custodian or other witness with knowledge that the evidence is from a public office authorized by law to keep such records. Lorraine, 241 F.RD. at 548. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. A witness may explain the operation of the computer system or process as well the protocols for maintenance and testing to ensure reliability. Rule
20 In addition to the non-exclusive methods of authentication identified in Rule 901(b), Rule 902 identifies twelve methods by which documents, including electronic ones, may be authenticated without extrinsic evidence. 902 states that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following (only pertinent subheadings are included): (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority. (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control. (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C). Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record -and must make the record and certification available for inspection -so that the party has a fair opportunity to challenge them. The Easy Way The Federal Rules of Civil Procedure provide three ways to authenticate electronic evidence before trial. A party may use requests for admission to authenticate ESI in the discovery process. Fed. R. Civ. P. 36 (a)(l )(B). At a pre-trial conference, a party may propose stipulations about the authenticity of ESL Fed. R. Civ. P. 16(c)(2)(C). Finally, once a party makes its pre-trial disclosures under Fed. R. Civ. P. 26(a)(3) identifying each exhibit, the opposing party has fourteen days to serve and file objections to the admissibility of any exhibit. Most evidentiary objections not timely made are waived. These methods provide an opportunity to foreclose all of these authenticity objections, but this approach requires some anticipation and advanced planning. Judicial Notice? 1 4