Self-Authenticating ESI: New Federal Rule of Evidence 902
In recent years, there has been an ongoing push to bring both the Federal Rules of Civil Procedure – and the Federal Rules of Evidence – into conformity with the fact that ESI now plays an outsized role in most civil litigation matters. Indeed, it is often the most important source of evidence both before and at trial.
And so, it was welcome news that Federal Rule of Evidence 902 – which deals with those categories of evidence that are considered to be “self-authenticating” – would be revised and expanded to include certain types of ESI. Attorneys would no longer need to spend the time or money required to provide extrinsic evidence of authenticity in order for these types of ESI to be admitted into evidence at trial or otherwise.
Here are 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).
Under these new subsections, an attorney would no longer need to produce a witness or expert to authenticate certain types of ESI. Instead, a written certification supplied by a person with sufficient technical knowledge that the evidence is authentic would be sufficient, subject to the notice provisions so that an opposing party has the time to decide whether to challenge the certification.
Examples of ESI that might fall under new Rule 902(13) include GPS data, cell phone tower data, data stored in a blockchain, operating system logs and registries, and other system-generated metadata. ESI that might now be covered under new Rule 902(14) include the myriad forensic copies of original data for which a digital hash value has been calculated and preserved. Proving that such copies – upon which almost all of the review and analysis is done in litigation and investigation matters – are authentic can now be accomplished by certification with notice.
The eDiscovery consulting practice at Level 2 Legal would welcome the chance to discuss various types of self-authenticating ESI, including how best to raise and negotiate same during Rule 26(f) and similar conferences. Knowledge of the revised rules, together with appropriate advance planning and negotiation, should make admitting such ESI into evidence a more seamless – and efficient – process.
Chris Schultz serves as executive vice president and general counsel of Level 2 Legal Solutions. In addition to serving as the chief legal officer, Chris helps coordinate all aspects of the company’s managed review and corporate compliance projects. He also leads engagement teams assisting clients with a full range of eDiscovery and litigation readiness projects. In addition, Chris is available to provide clients with expert testimony and special discovery master services. A dynamic speaker with more than five years of college-level teaching experience, Chris is a frequent presenter of continuing legal education and other seminars concerning eDiscovery.