Is Electronically Stored Information (ESI) Relevant? (part 2 of a series on this topic)Oct 25, 2017
In the first blog in this series, I discussed how to overcome hearsay when attempting to introduce electronically stored information (ESI). This blog discusses the second issue: relevance.
When seeking to introduce ESI, the concept of relevancy has no different or higher significance than with any other evidence. Relevant evidence, including ESI, is 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.
Therefore, for each separate piece of ESI you seek to admit, make sure you are able to articulate all grounds why the ESI may be relevant. Be prepared to list several reasons why the ESI is relevant, as the more reasons you give the Court to accept your argument, the better chance you have to succeed. As with any ruling, if your argument is not successful, make sure to request that the Court articulate why it denied each of your relevancy arguments for each piece of evidence. All too often, attorneys allow the Court to merely deny the argument without requiring them to articulate detailed reasons for its ruling. That only hurts the chances of success during appeal.
As a practice tip, relevancy for the discovery phase is much broader than relevancy for admission at trial. During the discovery phase, the evidence only needs to be reasonably calculated to lead to the discovery of admissible evidence. Getting the Court to approve a request for discovery allows you to get information that may be quite helpful during settlement, even if you don’t think it will be admitted as evidence at trial.