Recent revisions to the Federal Rules of Civil Procedure have focused on the discovery and production of electronically stored information. As alluring as the promise of discovering a smoking-gun e-mail is, such an e-mail only becomes useful in litigation if it can surmount a series of evidentiary hurdles that all too often receive only scant attention and, in many cases, are overlooked entirely.
The latter was the case in Lorraine v. Markel American Ins. Co.[FOOTNOTE 1] On the night of May 17, 2004, lightning struck Jack Lorraine’s yacht, Chessie, as it sat at anchor in Chesapeake Bay. Chessie’s hull sustained serious damage, which ultimately led to Lorraine and his insurance company, Markel, contesting the scope of an arbitration agreement into which both had earlier entered.
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