Lorraine v. Markel American Insurance Co., 2007; Insurance Dispute (E-Discovery)

Lorraine v. Markel American Insurance Co. was a lawsuit over insurance coverage for a boat damaged by lightning. The insurance company paid a claim for damage, but later Lorraine found additional damage and claimed an additional $36,000 to fix the boat. The matter went to arbitration, and the arbiter gave Lorraine an award of $14,000. Lorraine filed this action claiming the arbiter did not have authority to reduce the amount, but could only determine if the damage occurred as a result of the lightning. Both parties filed motions for summary judgment (to end the case in their favor) and attached copies of e-mails.
In this case, Judge Grimm goes to great lengths to discuss the differences between the Federal Rules of Civil Procedure and Federal Rules of Evidence. The case is a primer on how proffered ESI can also be admissible into evidence at the trial. It doesn’t do any good to have it if you can’t use it.
Lessons learned from Lorraine v. Markel American Insurance Co. are
Because both sides in this case failed to offer e-evidence to support their motions, Judge Grimm denied a motion for summary judgment.
ESI that is discoverable might not be admissible. Authentication is key to admissibility.
There is very little case law on admissibility of ESI but best practices applied to e-discovery can be applied to admissibility in court.
A comprehensive document retention policy can help ensure admissibility under the self-authentication rules of FRE 901 or as an exception to the hearsay rule under Rule 803(6).
tmp1B5-7_thumbYou can help yourself by implementing a comprehensive document retention policy. For e-discovery issues the importance can’t be understated. You could establish arguments under the safe harbor rule and admissibility rules. Just because it is discoverable does not mean it will be admitted in court.

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