In May, a federal judge in Maryland issued a 101-page opinion in Lorraine v. Markel American Insurance Company, which is noteworthy for its discussion of admissibility issues relating to electronic evidence including the court’s rejection of unauthenticated emails submitted in support of the parties’ cross-motions for summary judgment. Lorraine v. Markel American Insurance Company, 2007 WL 1300739 (D. Md. May 4, 2007). Given the fact that product liability litigation, like any other litigation involving corporate parties, increasingly involves and even turns on electronic evidence such as emails and website downloads, the Lorraine opinion, which contains pertinent and practical information for parties interested in getting in or keeping out electronic evidence, is a must-read.
The substantive legal issues in the Lorraine case were relatively straightforward: the suit arose as the result of a dispute between yacht owners and their insurance carrier over entitlement to insurance proceeds after the yacht was struck by lightning. The yacht owners filed suit merely to determine whether they were entitled to $14,100 under their insurance policy, the amount they had been awarded by an arbitrator, or $36,000, the amount the owners believed they should have been awarded. Judge Paul W. Grimm’s lengthy opinion did not deal with complex insurance coverage issues, but rather, came about because the judge found that the parties had failed to authenticate evidence in the form of electronically stored information (“ESI”) that each had relied upon in support of its motions for summary judgment. Noting that “very little has been written… about what is required to [e]nsure that ESI obtained during discovery is admissible” in discovery or at trial. Id., *4. Judge Grimm, a scholar who has devoted considerable time to writing and lecturing on treatment of electronic evidence, went on to discuss the various evidentiary “hurdles” that must be cleared in order for electronic evidence to be admitted. Id., *5. The opinion covers the evidentiary rules dealing with relevance, authentication, hearsay, original writings and prejudice, making it a worthwhile read for anyone who has struggled with the treatment of electronic evidence. However, because the ultimate denial of summary judgment was based on the judge’s finding that the parties failed to authenticate the evidence upon which they relied, this article will focus on the methods and requirements for authenticating various forms of electronic evidence.
The Federal Rules of Evidence
Calling the inability to get evidence admitted because of a failure to authenticate it largely a “self-inflicted injury,” Id., *9, the court noted that Federal Rule of Evidence 901, which sets forth the requirement that evidence be authenticated before admission, requires the proponent to make only a minimal showing. Specifically, Rule 901(a) provides that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). However, Judge Grimm acknowledged that authentication of electronically stored evidence may require a greater level of scrutiny than that which is normally applied when authenticating hard copy documents. Lorraine at *9.
Rule 901(b) gives 10 “examples” of methods for authenticating evidence. Id.,*11. Judge Grimm recognized that not all 10 examples are applicable to electronic evidence, and focused instead on five that might be, including:
- Rule 901(b)(1). Allows a party to authenticate electronic evidence via witness testimony, if there is a witness who can present facts known particularly to that witness to establish that the electronic evidence is what it is purported to be. Judge Grimm noted that with electronic information, it is necessary for the witness to provide specific facts about the process by which the electronically stored information was created, acquired, maintained, and preserved without alteration or change, or the way by which it is produced is the result of a system or process that does so (as opposed to boiler plate, conclusive restatement system the elements to the business record or public record exceptions to the hearsay rule. Id.,*12.
- Rule 901(b)(3). Allows a party to authenticate evidence by having the factfinder or an expert compare the proffered evidence with evidence that has already been authenticated.
- Rule 901(b)(4). Allows a party to authenticate evidence by demonstrating its distinctive characteristics, such as appearance, content or patterns, which, in conjunction with circumstances, show that the evidence is what it is purported to be. Judge Grimm noted that this is perhaps the most frequently used method for authenticating email and other electronic records, which can have distinctive content such as hash values and metadata. Id., *13.
- Rule 901(b)(7). Allows a party to authenticate evidence by demonstrating that it has been recorded with a public office or is a public record. Fed R. Evid. 901(b)(7). Records authenticated under Rule 901(b)(7) do not require a showing that they are accurate, nor that the computer system that was used to generate or used to store them is capable of producing a reliable result. Id., *16; United States v. Meienberg, 263 F 3d at 1181.
- Rule 901(b)(9). Allows a party to present evidence of the process or system used to produce the proffered evidence and show that the process or system produces an accurate result. Not surprisingly, Judge Grimm found this option “particularly useful” when attempting to authenticate electronic evidence stored in or generated by computers. Id., *16. Turning to Rule 902, Judge Grimm indicated that of the 12 options available for accomplishing authentication without reference to extrinsic evidence, three may be particularly useful with electronic evidence:
- Rule 902(5). Allows a party to authenticate evidence by showing it to be an official publication. Judge Grimm pointed out that this Rule does not automatically confer admissibility on all official publications, as a court may be required to determine whether the purported official publication qualifies as public record under Federal Rule of Evidence 803(8). Id., *19 (internal citations omitted). However, because official publications are so frequently posted on government agency websites, the effect of this Rule and Rule 803(8) is to make it fairly easy to get this type of evidence admitted.
- Rule 902(7). Allows a party to authenticate evidence by reference to inscriptions, signs, tags or labels affixed in the course of business and indicating ownership, control or origin. This may permit a party to authenticate emails easily, if the emails contain information identifying the sender or his or her company, etc.
- Rule 902(11). Works in conjunction with Rule 803(6) to permit a party to authenticate records kept in the normal course of business. After analyzing each of the methods above, Judge Grimm pointed out that there are additional means for clearing the authentication hurdle that should not be forgotten, such as a stipulation from opposing parties, judicial notice, or even seeking a presumption of authenticity and shifting the burden to the opponent to disprove genuineness. Lorraine, *20–22 (internal citations omitted).
After looking at available authentication methods, Judge Grimm analyzed authentication issues relating to multiple forms of electronic information, including email, website posting, text messages, chatroom content, computer- stored records and data, computer animations and simulations, and digital photographs. While litigants may well be faced with the need to authenticate each of these types of information in the course of their practice, space does not permit a review of each of them here. Because emails and website postings are arguably the most likely types of electronic information litigants today will deal with, these two types will be discussed.
Noting that email is the most ubiquitous form of electronically stored information, Judge Grimm acknowledged that email can be important in demonstrating state of mind, motive and intent. Id., *22. And as anyone who has represented a corporate entity in litigation in this century knows, email is sometimes the only available record of a party’s activities and thought processes (for better or worse) at a point in time.
Judge Grimm noted that there are many ways to authenticate email evidence under both Rule 901 and 902. Options under Rule 901(b) include presenting testimony about the email from someone with personal knowledge of it, See Fed. R. Evid. 901(b) (1); presenting expert testimony or comparing the email with a previouslyauthenticated email, See Fed. R. Evid.
901(b) (3); or by showing that the email’s appearance, contents, substance or other characteristics, taken in conjunction with circumstantial evidence, prove that it is what it is claimed to be, See Fed. R. Evid. 901(b) (4). Rule 902 permits authentication without reference to extrinsic sources where the proffered information is a public record, official publication, or a certified record of a regularly conducted business activity, among others, See Fed. R. Evid. 902. As recognized in Lorraine, several other courts have dealt with authentication of emails. In U.S. v. Siddiqui, the Eleventh Circuit found that an email from the defendant had been properly authenticated under Rule 901(b)(4), based on a number of factors. This included the fact that the email in question bore the defendant’s email address, which was the same address used in an email that the defendant’s own counsel had introduced in a deposition; a witness testified that they had replied to the email and/or discussed it over the telephone with the defendant; the email contained a nickname that the defendant was known by; and the email contained sufficient detail about the defendant’s activities that it was clear he had authored the email. U.S. v. Siddiqui, 235 F.3d 1318, 1322–23 (11th Cir. 2000).
In DirecTV, Inc. v. Murray, 307 F.Supp.2d 764 (D. S.C. 2004), the court for the District of South Carolina found that a party had properly authenticated emails using an affidavit pursuant to Rule 902(11), stating that the e-mails were kept in the normal course of business and were created at or near the time of the matters described in them. Id., 307 F.Supp.2d at 772–773. Importantly, the DirecTV court also noted the synergy between Rule 902(11) and the business-records exception to the hearsay rule set forth in Federal Rule of Evidence 803(6). The court noted that “Rule 902(11) was designed to work in tandem with [the 2001] amendment to Rule 803(6) to allow proponents of business records to qualify them for admittance with an affidavit or similar written statement rather than the live testimony of a qualified witness.” Id., 307 F.Supp.2d at 773. This synergy proved critical in U.S. v. Safavian, where the district court refused to allow the government to introduce certain emails into evidence, finding that the emails had not been authenticated pursuant to Rule 902(11) because the government did not seek to admit the emails pursuant to the business-records exception to the hearsay rule. U.S. v. Safavian, 435 F.Supp.2d 36, 39 (D.C. Cir. 2006). While more and more courts are addressing authentication issues surrounding emails, not surprisingly, there is not yet an extensive body of caselaw on the topic. The Lorraine opinion discusses some of the cases, as does a recent Pennsylvania opinion, In Re: F.P., a Minor. See In Re: F.P., a Minor, 878 A.2d 91 (2005). In Re: F.P. acknowledges the relatively few opinions dealing with authentication issues related to email, but does point the reader to a number of opinions from other jurisdictions, making it and the noted cases worthwhile reading for anyone concerned with ensuring that emails are admitted into evidence (or for anyone attempting to keep them out, for that matter). Id., 878 A.2d at 95, fn. 8.
The Lorraine opinion and other recent cases indicate that website postings may be particularly tricky to authenticate. Noting the possibility that persons other than the sponsor or owner of a website may be able to place content on the site, Judge Grimm cautioned that a party proffering websitebased information may be required to offer proof that the organization hosting the website actually posted the statements, or authorized them to be posted. Lorraine at *23. Several other opinions lend support to this idea. In U.S. v. Jackson, the Seventh Circuit affirmed the lower court’s exclusion of website postings on a number of grounds, including lack of authentication. U.S. v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000). The court held that the defendant, the party who proffered the evidence, needed to demonstrate that the postings actually were made by the website owner or operator, as opposed to having been “slipped onto the…web sites by [defendant], who was a skilled computer user.” Id. In U.S. v. Croft, the Seventh Circuit found that web postings that might otherwise qualify as business records would nonetheless be inadmissible “if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” U.S. v. Croft, 750 F.2d 1354, 1367 (7th Cir.1984). And in Wady v. Provident Life and Accident Insurance Co., a California district court sustained a defendant’s objection and excluded pages purportedly taken from the defendant’s website on the basis that plaintiff’s witness, who allegedly obtained the pages, had no personal knowledge of who maintained the website, who authored the documents, or the accuracy of their contents. Wady v. Provident Life and Accident Insurance Co. of America, 216 F.Supp.2d 1060, 1064–65 (C.D. Cal. 2002).
These examples should make obvious the potential pitfalls associated with trying to authenticate information taken from websites. However, some of the methods discussed in Rules 901 and 902 can be used to avoid these traps when trying to introduce website evidence. These include presenting the testimony of a witness with personal knowledge of the website, such as an owner or webmaster, See Fed. R. Evid. 901(b)(1); see also In re Homestore. com, Inc. Sec.Litig., 347 F.Supp.2d 769, 782 (C.D. Cal. 2004); allowing the jury or an expert witness to compare the website’s purported content with content already authenticated, See Fed. R. Evid. 901(b)(3); presenting evidence that the posting’s appearance, contents, or other characteristics, along with the circumstantial evidence, prove that it is what it is claimed to be, See Fed. R. Evid. 901(b)(4); demonstrating that the web posting is of a public record, See Fed. R. Evid. 901(b)(7); or presenting evidence of the system or process used to create the posting and showing it to be accurate, See Fed. R. Evid. 901(b) (9). Website postings may also be capable of self-authentication under Rule 902(5), where they are demonstrated to be “official publications” of a public authority, See Fed. R. Evid. 902(5).
While working with electronic information may be relatively new for many litigants, and 100-page opinions on the topic are enough to strike fear into their hearts, at the end of the day, what litigants should take away from the Lorraine opinion is that treatment of ESI is really not all that different from traditional forms of evidence. Indeed, at least one court has cautioned against developing a new body of law to deal with ESI, believing that it can be adequately addressed under existing evidentiary rules on a case-by case basis. In Re F.P., a Minor, 878 A.2d 91, 95 (Pa. Super. 2005). The Lorraine opinion makes clear that a number of options are available for authenticating the information and starting down the road to having it admitted into evidence. Judge Grimm also offers a roadmap and some sound advice, noting that: [t]o prepare properly to address authentication issues associated with electronically generated or stored evidence, a lawyer must identify each category of electronic evidence to be introduced. Then, he or she should determine what courts have required [in order] to authenticate this type of evidence, and carefully evaluate the methods of authentication identified in Rules 901 and 902, as well as consider requesting a stipulation from opposing counsel, or filing a request for admission of the genuineness of the evidence under Rule 36 of the Federal Rules of Civil Procedure. With this analysis in mind, the lawyer then can plan which method or methods of authentication will be most effective, and prepare the necessary formulation, whether through testimony, affidavit, admission or stipulation. The proffering attorney needs to be specific in presenting the authenticating facts and, if authenticity is challenged, should cite authority to support the method selected. Lorraine at *32.
Clearly, this practical advice applies to any attempt to authenticate evidence, electronic or otherwise. By following it, parties should be able to avoid the “self-inflicted injury” caused by failure to authenticate evidence.