Although receiving far less attention than the 2015 amendments to the Federal Rules of Civil Procedure, proposed changes to federal evidence rules addressing electronically stored information (ESI) became effective December 1, 2017. Specifically, amendments to F.R.E. 803(16)(the ancient document exception to hearsay) and F.R.E. 902 (regarding authentication of electronic evidence).
In this article, we examine proposed changes to Rule 902 permitting “self authentication” of certain electronic evidence and ESI. (Changes to Rule 803(16) are addressed in a different article).
Can I Get a Witness?
As every good trial lawyer knows, to offer evidence at trial, it must be established that the evidence is authentic. That is, establishing that the evidence is what it purports to be. To prove the authenticity of evidence, witnesses are often called to verify the evidence. (Think of the police officer called to testify that the gun shown at trial was the one he found at the crime scene).
However, for certain evidence, a witness is not always needed. Under Evidence Rule 902 some evidence is “self authenticating” such as certified public records and product labels.
But, Do I Really Need a Witness?
The expense and hassle of calling a witness to authenticate electronic evidence is often unnecessary because an adversary either stipulates to authenticity before the witness is called or does not object to the witness testimony once it is presented. Acknowledging this is often the case, last year the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed two additions to Rule 902 to permit authentication of certain ESI without the testimony of a witness.
Both the Supreme Court and Congress approved the proposed rule changes and added two new sections to Rule 902:
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(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).
(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).
Under the new sections, instead of producing a witness to verify evidence copied from a website, or to establish that an email message is unaltered, the party offering the evidence may offer a certification from a person with knowledge that the evidence is authentic.
For example, computer files may be verified by their “hash values“–strings of numbers and letters assigned to electronic data by a computer algorithm and sometimes colloquially referred to as a file’s “digital fingerprint.” If the hash value for the file used at trial matches the hash value of the original file, that indicates it has not been altered.
Under the new Rule 902(14) self-authentication of ESI is permitted with a certification from a “qualified person” that the hash value of evidence was checked against the original and it was identical. However, committee notes also point out that the 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.”
The Committee also made clear that even though ESI is self authenticating, it still remains susceptible to other evidentiary objections such as hearsay and relevance.
The amended rules and the letter sent by the Supreme Court to Congress for approval may be found here.