Two proposed amendments to Federal Rule of Evidence 902 could have a significant impact on the collection of electronically stored information (ESI) and its admission at trial. While these amendments were aimed at reducing the necessity of live testimony from multiple witnesses at trial for the sole purpose of authenticating electronic evidence, they also provide a framework for standardizing ESI collection and means for resolving authentication issues prior to trial.
The current version of Rule 902 stipulates that certain types of documents are self-authenticating and require no extrinsic evidence of authenticity to be admissible at trial. Among these categories of documents are government documents, certified copies of public records, newspapers, and certified business records.1 The new additions to Rule 902, paragraphs (13) and (14), allow for authentication of electronic evidence by an affidavit of a “qualified person” who can certify in writing that the document was obtained within the requirements of Rule 902(11) and (12).
The new Rule 902(13) covers records “generated by an electronic process or system that produces an accurate result,” such as a system registry report showing that a device was connected to a computer, or showing how smartphone software obtains GPS coordinates.2
Rule 902(14) covers records “copied from an electronic device, storage medium, or file” (including email and other user-created records) that can be authenticated using a document’s hash values.3 A document’s hash value is represented by an alphanumeric sequence of characters unique to that document (its “digital fingerprint”) such that, if an original and copy have the same hash value, there is a very high probability that the documents are identical. For purposes of authentication, hashing “provides exactly the proof that Rule 902 requires: that the document is what the attorney states that it is.”4 Hash values are not the only method by which such certification can be made. As the Advisory Committee on Evidence notes, “[t]he rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.”5
While 902(13) and (14) are scheduled to become effective on December 1, 2017, they may already be influencing decisions about how to collect electronic data. Most data collected today will not need to be introduced at any trial or hearing until after the amendments take effect, so parties that wish to take advantage of the new authentication rules should ensure that their collection method tracks digital fingerprints on any new collection.6 As courts become familiar with the reliability of forensic technology, and as the volume of digital evidence continues to grow, collecting and duplicating electronic records in a manner that facilitates authentication under FRE 902(13) or (14) is increasingly useful. This, in turn, increases the importance of using knowledgeable e-discovery practitioners and forensic professionals to help ensure that best practices are followed in the collection and duplication of electronic data. Lawyers can facilitate the future authentication of electronic evidence by following forensic collection procedures, and this can significantly reduce the likelihood or effectiveness of costly challenges to electronic evidence, or the need to have extra authentication witnesses present at evidentiary hearings or trials.
To learn more, join Reed Smith and X1 on Tuesday, March 14, for the CLE webinar, “The New Amendment to FRE 902: How Will It Impact Data Preservation and Collection?” To register for this webinar, please contact Webinar Requests.
- Fed. R. Evid. 902
- Fed. R. Evid. 902(13) (Proposed Amendment 2016)
- Fed. R. Evid. 902(14) (Proposed Amendment 2016)
- “Law of the Foal: Careful Steps Towards Digital Competence in Proposed Rules 902(13) and 902(14),” 1 Geo. L. Tech. Rev. 6 (2016)
- Fed. R. Evid. 902(14) (Proposed Amendment 2016) – Advisory Committee’s note to 2016 amendment
- John Patzakis, Esq., “Federal Evidence Rule 902(14) is Immediately Applicable for ESI Collections”, eDiscovery Law & Tech Blog (Jan. 4, 2017), blog.x1discovery.com
Client Alert 2017-074