12 Ave Maria L. Rev. 213 (2014)
Testable Reliability: A Modernized Approach to ESI Admissibility

handle is hein.journals/avemar12 and id is 227 raw text is: TESTABLE RELIABILITY: A MODERNIZED
Steven W. Tepplert
This Article examines the proposition that all digital data sought to be
introduced and admitted as evidence should be subject to a heightened
showing of reliability and testability. This objective could be reached by
either: (1) considering all digital data as hearsay pursuant to Federal Rule of
Evidence (FRE) 807; (2) creating a new evidence rule requiring such a
showing as a predicate to admissibility; or (3) the emergence of express
decisional authority. This Article also analyzes the inadequacy of the current
approaches to dealing with the hearsay exception used to offer computer-
generated information into evidence. The author proposes that until the FRE
are revised to reflect the highly mutable and untestable nature of digital
evidence, such evidence should be treated as hearsay and subject to
application of Rule 807, and in accordance with Rule 807, deemed
inadmissible unless an affirmative showing of reliability and testability is
successfully asserted.
Subject to certain exceptions not pertinent to this discussion (unfair
prejudice, confusion of the issues and the like), all relevant evidence is
generally considered admissible once a proper foundation has been laid
pursuant to Rule 901.
t Steven W. Teppler leads the Abbott Law Group's information governance and electronic discovery
practice. Steven's litigation practice focuses on electronic discovery, including production, preservation,
and spoliation issues. His experience includes federal and state court litigation matters both against, and
on behalf of, Fortune 500 companies, as well as probate and family law disputes where electronic
discovery is critically implicated. He has practiced law since 1981, is admitted to the bars of New York,
the District of Columbia, Florida, and Illinois and advises private and public sector clients about risk,
liability, and compliance issues unique to information governance (i.e., from instantiation through
management, preservation, and disposition). Steven is an adjunct professor at Ave Maria Law School,
teaching electronic discovery, and also lectures nationwide on evolving theories of information
governance and electronic discovery. Mr. Teppler is also a founding co-chair of the Florida Bar's
Business Law Section eDiscovery Committee, and is a co-drafter of the 2012 electronic discovery
amendments to the Florida Rules of Civil Procedure.

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