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Rule 2-504.3 – Computer-Generated Evidence

May 13, 2021 | Civil Prodcedure, Maryland

(a) Definition–Computer-Generated Evidence. “Computer-generated evidence means (1) a computer-generated aural, visual, or other sensory depiction of an event or thing and (2) a conclusion in aural, visual, or other sensory form formulated by a computer program or model. The term does not encompass photographs merely because they were taken by a camera that contains a computer; documents merely because they were generated on a word or text processor; business, personal, or other records or documents admissible under Rule 5-803(b) merely because they were generated by computer; or summary evidence admissible under Rule 5-1006, spread sheets, or other documents merely presenting or graphically depicting data taken directly from business, public, or other records admissible under Rules 5-802.1 through 5-804.
(b) Notice.

(1) Except as provided in subsection (b)(2) of this Rule, any party who intends to use computer-generated evidence at trial for any purpose shall file a written notice within the time provided in the scheduling order or no later than 90 days before trial if there is no scheduling order that:

(A) contains a descriptive summary of the computer-generated evidence the party intends to use, including (i) a statement as to whether the computer-generated evidence intended to be used is in the category described in subsection (a)(1) or subsection (a)(2) of this Rule, (ii) a description of the subject matter of the computer-generated evidence, and (iii) a statement of what the computer-generated evidence purports to prove or illustrate; and
(B) is accompanied by a written undertaking that the party will take all steps necessary to (i) make available any equipment or other facility needed to present the evidence in court, (ii) preserve the computer-generated evidence and furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and (iii) comply with any request by an appellate court for presentation of the computer-generated evidence to that court.
(2) Any party who intends to use computer-generated evidence at trial for purposes of impeachment or rebuttal shall file, as soon as practicable, the notice required by subsection (b)(1) of this Rule, except that the notice is not required if computer-generated evidence prepared by or on behalf of a party-opponent will be used by a party only for impeachment of other evidence introduced by that party-opponent. In addition, the notice is not required if computer-generated evidence prepared by or on behalf of a party-opponent will be used only as a statement by a party-opponent admissible under Rule 5-803(a).
(c) Required Disclosure; Additional Discovery. Within five days after service of a notice under section (b) of this Rule, the proponent shall make the computer-generated evidence available to any party. Notwithstanding any provision of the scheduling order to the contrary, the filing of a notice of intention to use computer-generated evidence entitles any other party to a reasonable period of time to discover any relevant information needed to oppose the use of the computer-generated evidence before the court holds the hearing provided for in section (e) of this Rule.
(d) Objection. Not later than 60 days after service of a notice under section (b) of this Rule, a party may file any then-available objection that the party has to the use at trial of the computer-generated evidence and shall file any objection that is based upon an assertion that the computer-generated evidence does not meet the requirements of Rule 5-901(b)(9). An objection based on the alleged failure to meet the requirements of Rule 5-901(b)(9) is waived if not so filed, unless the court for good cause orders otherwise.
(e) Hearing and Order. If an objection is filed under section (d) of this Rule, the court shall hold a pretrial hearing on the objection. If the hearing is an evidentiary hearing, the court may appoint an expert to assist the court in ruling on the objection and may assess against one or more parties the reasonable fees and expenses of the expert. In ruling on the objection, the court may require modification of the computer-generated evidence and may impose conditions relating to its use at trial. The court’s ruling on the objection shall control the subsequent course of the action. If the court rules that the computer-generated evidence may be used at trial, when it is used, (1) any party may, but need not, present any admissible evidence that was presented at the hearing on the objection, and (2) the party objecting to the evidence is not required to re-state an objection made in writing or at the hearing in order to preserve that objection for appeal. If the court excludes or restricts the use of computer-generated evidence, the proponent need not make a subsequent offer of proof in order to preserve that ruling for appeal.
(f) Preservation of Computer-Generated Evidence. A party who offers or uses computer-generated evidence at any proceeding shall preserve the computer-generated evidence, furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and present the computer-generated evidence to an appellate court if the court so requests.

Committee note: This section requires the proponent of computer- generated evidence to reduce the computer-generated evidence to a medium that allows review on appeal. The medium used will depend upon the nature of the computer-generated evidence and the technology available for preservation of that computer-generated evidence. No special arrangements are needed for preservation of computer-generated evidence that is presented on paper or through spoken words. Ordinarily, the use of technology that is in common use by the general public at the time of the hearing or trial will suffice for preservation of other computer- generated evidence. However, when the computer-generated evidence involves the creation of a three-dimensional image or is perceived through a sense other than sight or hearing, the proponent of the computer-generated evidence must make other arrangements for preservation of the computer-generated evidence and any subsequent presentation of it that may be required by an appellate court.

Md. R. Civ. P. Cir. Ct. 2-504.3

This Rule is new.

Adopted Feb. 10, 1998, eff. July 1, 1998. Amended Sept. 10, 2009, eff. Oct. 1, 2009.

HISTORICAL NOTES

2009 Orders

The September 10, 2009, order, in section (f), substituted “A party who offers or uses for “The party offering and in the Committee note, in the fourth sentence, deleted “standard VHS videotape or equivalent.

For the shortening or extension of time periods set forth in this Rule, see Rule 1-204.