A Primer on Federal Rule of Evidence 902
What does Self-Authentication of Electronically Stored Information mean? – A primer on FRE 902
With the goal making evidentiary authentication easier for certain kinds of electronic evidence, amendments to the Federal Rules of Evidence went into effect on December 1, 2017. In particular, Rule 902(13) and (14) created two additional categories of self-authenticating evidence, that is digital evidence.
Why did they amend the rules?
In order for evidence to be admissible, the proponent of that evidence must provide evidence of authenticity “sufficient to support a finding that the item is what the proponent claims it is.” See Rule 901(a). Prior to the amendments, electronic evidence could only be authenticated under Rule 901 by calling a witness to testify to authenticity. This was very inefficient and likely added unnecessary costs to litigation. Indeed, the Advisory Committee found that “the types of electronic evidence covered by the two proposed rules are rarely the subject of a legitimate authenticity dispute, but it is often the case that the proponent is nonetheless forced to produce an authentication witness, incurring expense and inconvenience — and often, at the last minute, opposing counsel ends up stipulating to authenticity in any event.”
What are the new rules after the amendment?
FRE902((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).
FRE902(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).
On December 1, 2017, FRE902 (13) and (14) added two additional categories of evidence that can be self-authenticating. In other words, these two categories of electronic information can be authenticated with no extrinsic evidence besides the certification of a qualified person.
The Committee Notes provides the following example. Where data from an electronic device is submitted as evidence, it can be authenticated by “a certification of a qualified person” that proffered item is identical to the original. This can be achieved by using technology such as a “hash value”. “A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical.” Thus, ESI can be self-authenticated where “identical hash values for the original and copy reliably attest to the fact that they are exact duplicates.”
Is self-authenticated evidence automatically admissible?
No. While evidence may be authentic, the Rule 902 amendments do not change the standard for admissibility. The Committee notes provides an example:
“The opponent remains free to object to admissibility of the proffered item on other grounds—including hearsay, relevance, or in criminal cases the right to confrontation. For example, assume that a plaintiff in a defamation case offers what purports to be a printout of a webpage on which a defamatory statement was made. Plaintiff offers a certification under this Rule in which a qualified person describes the process by which the web page was retrieved. Even if that certification sufficiently establishes that the webpage is authentic, defendant remains free to object that the statement on the webpage was not placed there by defendant. Similarly, a certification authenticating a computer output, such as a spreadsheet, does not preclude an objection that the information produced is unreliable—the authentication establishes only that the output came from the computer.”
What’s the bottom line?
The new amendments do not change the standards for authentication of electronic evidence and the opponent is free to object to the admissibility of evidence notwithstanding its authenticity. See Committee Notes. However, the new rule does provide some clarity for attorneys seeking to admit ESI into evidence: preserving data using forensically sound procedures through a qualified digital forensic examiner can eliminate unnecessary costs and burden.
Where can I learn more?
For a comprehensive and detailed exposition regarding the admissibility of evidence, refer to Best Practices for Authenticating Digital Evidence by Judge Paul W. Grimm http://fbasd.org/uploads/misc_files/01-authenticatingdigitalevidence.pdf Judge Grimm discusses the requirements for authentication for ESI from emails, text messages, chat programs, websites and social media.
Kinny Chan is the Chief Executive Officer for Precision Discovery. He enjoys taking complex challenges and explaining them in simple and understandable terms. He is inspired by the intersection between technology, business and the law.