Navigating Evidence Challenges in Complex Multi-District Litigation

Authentication objections are now routine
Electronic communications face hearsay challenges
Personal knowledge requirements may be narrowly interpreted

The Evolving Landscape of Trial Evidence

In recent years, trial attorneys have observed a significant shift in how evidence is handled in complex multi-district litigation (MDL). What was once a straightforward process has evolved into what some practitioners describe as a deliberate strategy to “gum up the works” through increasingly obstreperous tactics around document admissibility.

The Authentication Challenge

One of the most common obstacles plaintiffs’ attorneys face involves authentication objections. Even when documents come directly from a defendant’s files, defense teams now routinely object to authenticity, a hurdle that was rarely an issue in the past. This trend has become particularly problematic with third-party documents, which may contain crucial evidence but are subject to heightened scrutiny.

Authentication fundamentally addresses a simple question: What is this document? For example, establishing that an email was sent from one person to another on a specific date. While this may seem straightforward, experienced trial attorneys report seeing objections to materials as basic as videos published on a company’s channels (website?). Policy documentation surrounding a party’s electronic systems and Chain of Custody documentation from collection of such systems may be helpful in overcoming these challenges.

Hearsay Issues in the Digital Age

The emergence of electronic communications has complicated the application of hearsay exceptions, particularly the business records exception. Unlike traditional business documents from earlier decades, emails and other electronic communications may not automatically qualify as business records.

For an email to qualify under the business records exception, legal teams must demonstrate that creating such records was a regular business practice, not just that email was used to conduct business. Company policies and IT protocols may be helpful in overcoming hearsay challenges for electronic records. Notably, courts have taken a nuanced approach, often distinguishing between casual workplace conversations and formal business communications.

The Personal Knowledge Controversy

Perhaps the most challenging obstacle involves objections based on Federal Rule of Evidence 602 regarding personal knowledge. Defense teams increasingly take the position that witnesses cannot testify about documents they didn’t personally author or receive, even when the documents concern matters within their professional responsibilities.

This narrow interpretation creates significant problems, especially when questioning higher-level witnesses about activities within their departments. Plaintiffs’ attorneys have found success by establishing the witness’s knowledge of the subject matter rather than focusing on the document itself.

Effective strategies include:

Establishing a link between the witness’s role and the document’s subject matter
Demonstrating that a witness’s lack of awareness of critical information is itself relevant
Using hypothetical questions (e.g., “If you had known X, would that have affected your actions?”)
Exploring professional profiles on platforms like LinkedIn, where witnesses often describe themselves as experts in relevant areas
Reviewing personnel files, where employees typically detail their areas of responsibility and achievements

Practical Considerations for Litigators

Many judges grow frustrated with excessive objections that slow discovery or trial proceedings, particularly when they concern routine authentication matters. However, the burden often falls disproportionately on plaintiffs, who must overcome these obstacles while also bearing the burden of proof.

Special masters can play a crucial role in resolving these disputes efficiently, particularly when they become familiar with recurring patterns of obstruction. Additionally, legal teams should consider addressing these issues early and proactively in ESI and deposition protocols rather than waiting until trial.

As litigation tactics evolve, so too must the approaches of trial attorneys. Understanding these challenges and developing strategic responses are essential for effectively presenting evidence in today’s complex litigation environment

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When you work with ILS, our team of eDiscovery experts will assist you in early discovery negotiations designed to prevent these costly delaying tactics, support your motion practice, testify by affidavit and in court, attend discovery-related depositions with you, and help create a strategic discovery plan to litigate your case most effectively. Our consulting team is a well-known, trusted partner that never backs down from advocating for our clients’ positions. We will help ensure that your ESI protocols are designed for Plaintiffs’ interests and that you receive the defense data you need to win your case.

Passionate, experienced attorneys and technical experts provide battle-tested strategic support and testimony from the outset as eDiscovery challenges and issues arise throughout the case.
ILS consultants are available for ESI negotiations, meet-and-confers, motion support, testimony, and strategic guidance.
As exclusive providers to the Plaintiffs’ Bar, our experience, insights and skillfully utilized toolbox will save you time and money, helping you obtain the evidence defendants want to deny you.