You’ve got a case headed to trial in a few short months, and among your exhibits are a number of copies of web pages. You know you need to authenticate them to get them into evidence at trial (and also know your judge is skeptical about websites being digitally manipulated). In an unexpected about-face, opposing counsel won’t stipulate that the web pages are authentic, and while you could try to find a witness to testify to the authenticity, you’re not sure who fits the bill and if the client will be willing to pay for the expense. Do you have a problem on your hands? As of December 1, 2017, probably not – thanks to two amendments to the Federal Rules of Evidence (“FRE”).
For several years now, it has been an ongoing goal to adapt the federal rules to the ever-expanding proliferation of ESI in litigation. FRE 902 is the latest rule to be adapted with this goal in mind. FRE 902 governs evidence that is “self-authenticating,” meaning items of evidence that do not require any extrinsic evidence of authenticity in order to be admitted into evidence at trial (barring hearsay or another basis for exclusion). The items covered by this rule include, for example, sealed and signed U.S. public documents1, certified copies of public records2, and newspapers and periodicals3. Certain types of electronically stored information, or “ESI,” are scheduled to join this group and also be covered by FRE 902 on December 1, 2017.
Specifically, two new sections have been proposed for Rule 902, to be numbered FRE 902(13) and 902(14). The intent of both rules is to remove the current requirement to provide extrinsic evidence of authenticity at trial in order to admit certified records generated by an electronic system or certified data copied from electronic devices or files, unless the parties have a dispute about authenticity of particular documents.
Here is the text of the new rules:
Rule 902(13): Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).
Rule 902(14): Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).
While they may sound complicated, the intent of the new rules is actually very simple. Essentially, FRE 902(13) and (14) will allow parties to authenticate certain types of ESI without needing to offer any testimony as to foundation. Specifically, the following ESI will no longer need foundation-related testimony at trial: (1) A record generated by an electronic process or system that produces an accurate result, as shown by an appropriate certification4; or (2) data copied from an electronic device, storage medium, or electronic file, if authenticated by a process of digital identification, as demonstrated by an appropriate certification.5
The types of evidence that would fall under these rules could include, for example, GPS data, cell phone photos, text messages, and other electronic evidence, if the proponent introduced an authentication certificate, pursuant to FRE 902(13), showing that the ESI was obtained from systems that produced reliable results. FRE 902(14) will allow, among other things, self-authentication of forensic copies of web pages, text messages, or emails, certifying that they are the same as the originals.
Logistically, these rules would require the proponent of the ESI to present a certification sufficient to establish the authenticity of the evidence, reasonably far in advance of trial, at which point the opposing party would have to determine whether it could actually make a real challenge to the authenticity of the evidence. This certification would need to be made by a qualified person (someone who would otherwise be able to testify at trial regarding authenticity) and, for the tech-savvy reader, would likely be performed by checking the hash values for the original documents and the copies to ensure they are identical, unless and until future technology provided new methods of identification. If the opposing party did not timely object to the certification, then no authenticating witness would be necessary at trial. The intent of the committee is to encourage parties to litigation to determine in advance of trial whether either intends to challenge the authenticity of any ESI, to appropriately tailor their trial preparation and streamline the trial itself.
In light of these amendments, it would behoove parties to litigation to make sure, in cases where large quantities of ESI could play a significant role at a potential trial, to collect such ESI using forensically sound methods, including employing specialists in appropriate cases and in any event ensuring that the methods used track the hash values of the documents. The clearer the records about what collection practices were utilized, and the more proactive counsel can be about giving notice to the opposing party and obtaining the appropriate certification in advance of trial, the more time and expense will be saved. Ideally, these amendments will result in smoother trial preparation, fewer witnesses, and shorter trials.