In part 1 of this multi-part post, I introduced the concept of Fact Crashing™. This is the acceleration of dispute resolution through the prioritization of data-based evidence.
This data-based evidence is not emails (although emails may contribute to it). We are talking about ambient, contextual, and transactional data. This is what makes up most databases, most log files, most cell-phone records, most text-messages. This is the data glue that holds our digital lives, and our activities, together.
I described Fact Crashing™. Today I will start to share the 9 principles of Fact Crashing™.
Principle 1: Data is Evidence, and is Discoverable.
While this seems obvious to some, it’s not obvious to all. The Federal Rules of Civil Procedure (“FRCP”) Rule 34, which sets the standards for the production of documents in Federal Court, contains a laundry list of items subject to production, inspection, copying, testing, or sampling.
This list includes “Data Compilations” (FRCP 34(a)(1)(A)). The committee notes from 1970 amendments discuss printouts of computer data. Fast forward 25 years, and the committee notes from the 2006 amendments (the “E-Discovery Amendments”) confirms that Rule 34(a) is amended to put ESI on equal footing with paper discovery, and that this means “all current types of computer-based information”. Further, the amendments were intended to be flexible enough to encompass future changes and developments.
At the same time, the Federal Rules of Evidence, especially FRE 902, contains language specific to the “authenticity of electronic evidence” and the authentication of data copied from an electronic device, storage medium, or an electronic file.
There are numerous other references to data (“facts or data”) in the federal rules of evidence including rules FRE 101 (“Scope; Definitions”), FRE 702 (“Testimony of Expert Witnesses”), FRE 703 (“Bases of an Expert’s Opinion Testimony”), FRE 705 (“Disclosing the Facts or Data Underlying an Expert’s Opinion”).
If this were not sufficient, we have a rich history of jurisprudence, and we are fortunate enough to have the Sedona Conference who has published multiple guidance papers and their own principles related to e-discovery in general, and database discovery specifically. Most interestingly, I meet the occasional person who accepts that e-mails are discoverable, but databases are not. To that person, I have the following fun fact: e-mail systems are databases.
So, Principle 1 is “Data is Evidence, and is Discoverable”. Just to be clear. Once we accept that, the rest is (mostly) easy.
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