The Sedona Conference Commentary on ESI Evidence & Admissibility
The Sedona Conference · Second edition, October 2020; published in The Sedona Conference Journal, Volume 22 (2021). The first edition dates from March 2008 · 2020
Access and status
Cost
Free
Free to read or download at source. No account, no purchase.
Status
Current
Current as at the verification date below. Standards and tools both move — confirm at source before you rely on it.
What it is
A consensus commentary on getting electronically stored information into evidence — authentication, hearsay, best evidence, and the certification routes — rewritten for the second edition to take account of Rules 902(13) and 902(14).
Who it is for, and when
This is the most practical single document on admitting digital evidence in a US civil case, and the right thing to read before drafting an authentication stipulation or a 902(13)/(14) certificate. Examiners should read the authentication discussion to see how their acquisition records get used at trial. Lawyers should read it alongside the rule text rather than instead of it.
What it does not cover
It is not binding and no court has adopted it; it is US-focused and does not address criminal admissibility in any depth. It explains the legal framework, not how to acquire or examine the evidence. The PDF requires a free Sedona Conference account.
Go to the source
Open at thesedonaconference.org (opens in a new tab)https://thesedonaconference.org/publication/Commentary_on_ESI_Evidence_and_Admissibility
Details
- Type
- Standard or guidance
- Written for
- Lawyers and courtsWorking examinerLawyers and courts, Working examiner
- Publisher
- The Sedona Conference
- Version verified
- Second edition, October 2020; published in The Sedona Conference Journal, Volume 22 (2021). The first edition dates from March 2008
- Year
- 2020
- Topics
- legal-admissibility, authentication, evidence-handling, ediscovery, us-federal
- Checked at source
- Standards are revised. Confirm the current revision with the publisher before citing this.
Related entries
A roughly 1,500-page updated treatise covering discovery and admission of electronic evidence against federal and state rules and case law, in eight chapters, with companion Best Practices Guides including an information technology primer for lawyers.
A law review article by a federal judge who writes extensively on digital evidence, the Reporter to the Advisory Committee on Evidence Rules, and a leading evidence practitioner, written as Rules 902(13) and 902(14) were being adopted. It works through the authentication routes for electronic evidence and explains what the new self-authentication provisions were designed to do.
Two subsections of Rule 902 that let a party authenticate electronic evidence by written certification instead of live testimony: 902(13) covers a record generated by an electronic process or system that produces an accurate result, and 902(14) covers data copied from an electronic device, storage medium, or file when authenticated by a process of digital identification. Both borrow the certification and pretrial notice machinery of Rule 902(11).
The federal sanctions rule for lost ESI. It applies only where information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it and it cannot be restored or replaced through additional discovery, and it reserves the severe measures — adverse inference, dismissal, default — for a finding that the party acted with intent to deprive another party of the information's use.
An illustration of sufficient authentication: "Evidence describing a process or system and showing that it produces an accurate result." It is the route by which the output of software, an acquisition tool, or an automated system is authenticated through testimony about the tool rather than about the document.