IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JACK R. LORRAINE AND, :
BEVERLY MACK :
Plaintiffs :
:
v. :        CIVIL ACTION NO. PWG-06-1893
:
MARKEL AMERICAN :
INSURANCE COMPANY :
Defendants

Excerpt:

Thus, when a lawyer analyzes the admissibility of electronic evidence, he or she should
consider whether it would unfairly prejudice the party against whom it is offered, confuse or mislead
the jury, unduly delay the trial of the case, or interject collateral matters into the case . If a lawyer is
offering electronic evidence, particularly computer animations, that may draw a Rule 403 objection,
he or she must be prepared to demonstrate why any prejudice is not unfair, when measured against the
probative value of the evidence. In this case, counsel did not address whether Rule 403 was implicated
with respect to the electronic evidence attached to their summary judgment memoranda.

Conclusion

In this case the failure of counsel collectively to establish the authenticity of their exhibits,
resolve potential hearsay issues, comply with the original writing rule, and demonstrate the absence
of unfair prejudice rendered their exhibits inadmissible, resulting in the dismissal, without prejudice,
of their cross motions for summary judgment. The discussion above highlights the fact that there are
five distinct but interrelated evidentiary issues that govern whether electronic evidence will be
admitted into evidence at trial or accepted as an exhibit in summary judgment practice. Although each
of these rules may not apply to every exhibit offered, as was the case here, each still must be
considered in evaluating how to secure the admissibility of electronic evidence to support claims and
defenses. Because it can be expected that electronic evidence will constitute much, if not most, of the
evidence used in future motions practice or at trial, counsel should know how to get it right on the first
try. The Court hopes that the explanation provided in this memorandum order will assist in that
endeavor.63

May 4, 2007

/S/
PAUL W. GRIMM
CHIEF UNITED STATES MAGISTRATE JUDGE

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