Historical ESI Highlights – Part IX – Lorraine v. Markel Am. Ins. Co.

Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), fills 67 pages on Westlaw.  In the Complaint, the plaintiff sought $36,000 plus interest, attorneys’ fees, and costs.[1] The Counterclaim sought to enforce a $14,100 arbitration award.[2] The decision is a treatise on admissibility of ESI, stating:

Although cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence. Because there is a need for guidance to the bar regarding this subject, this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case. It is my hope that it will provide a helpful starting place for understanding the challenges associated with the admissibility of electronic evidence.

Id. at 537.

The Hon. Paul W. Grimm denied cross-motions for summary judgment and wrote that: “It is difficult for the Court to provide the appropriate background to the underlying arbitration in this case because, as will be discussed in greater detail below, neither party has proffered any admissible evidence to support the facts set forth in their respective motions.”

The Court explained:

Very little has been written… 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 e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

241 F.R.D. at 537-38 (emphasis added).

The decision went on to carefully analyze “a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of evidence.”  Id. at 538.  It proceeds to explain the trial court’s gatekeeper role and the various issues presented by each “flavor.”

Lorraine was the first, and has been described as “the most[,] comprehensive single opinion regarding the admissibility of ESI….”  Hon. Paul W. Grimm, et. al., “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L. Rev. 357, 360 (2009).

It has also been called the “godfather of all cases,”  Linda Greene, “Mining Metadata: The Gold Standard for Authenticating Social Media Evidence in Illinois,” 68 DePaul L. Rev. 103, 112 (2018), and a “landmark case,”  Abraham Oxner, “A New Age of Authentication,” 23 J. Tech. L. & Pol’y 229, 234 (2019).

The ground-breaking decision remains a textbook resource today. For example:

This case is seen as an exhaustive guide to the admissibility of social media evidence in trials, and the case features a lengthy section on authenticating such evidence during the course of trial. The opinion was written by Judge Paul Grimm, who is considered to be the leading jurist on the admissibility of social media evidence. In it, Judge Grimm identified several useful tools for authenticating such evidence, including using the distinctive characteristics of specific posting habits to show that a user has a habit of posting in a certain way. This specific characteristics approach has since been used in a number of other federal cases where social media content made up a significant portion of the available evidence.

Maximilian Bungert, “Do It for the Snap: Different Methods of Authenticating Snapchat Evidence for Criminal Prosecutions,” U. Ill. J.L. Tech. & Pol’y, Spring 2021, at 121, 132–33.

History is important.

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[1] 2006 WL 2836885.

[2] 2006 WL 5229809; 241 F.R.D. at 534.