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Prepare Now for Upcoming Amended Rule 902

Tuesday, July 11, 2017   (0 Comments)
Posted by: ACEDS Marketing Team
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Extract from Helen Geib's article "Prepare Now for Upcoming Amended Rule 902" posted on QDiscovery

Forthcoming amendments to the Federal Rules of Evidence directly address the admissibility of electronic evidence through the addition of two new subsections to Rule 902. In a nutshell, the amendments add ESI to the select list of categories of records that are self-authenticating. Now in the home stretch of the approval process, the amended Rule is expected to take effect on the scheduled date of December 1, 2017.

The amendments are expressly designed to streamline authentication of ESI, reduce cost and burden on the parties and eliminate unnecessary evidentiary disputes. Amended Rule 902 creates a mechanism to authenticate qualifying electronic evidence by written certification instead of live testimony, a sea change in evidentiary practice that offers significant benefits to counsel, clients and the court.

The time is now to prepare for amended Rule 902. Although December may seem far away, the extended timetable of civil litigation means that most ESI collected today will not be introduced into evidence until after the effective date, and thus will be subject to the new admissibility requirements. The starting point is to evaluate how data is being collected currently – and whether it will satisfy those requirements. Litigators will also want to consult with their eDiscovery and forensics service providers to create a strategic approach for collections moving forward.

Current Practice for Authenticating Electronic Evidence

Authentication, a critical element of admissibility of evidence at trial and in other evidentiary proceedings, is principally governed by Rule 901. The standard legal definition of “authentic” evidence is evidence that is what it purports to be. In layman’s terms, authentic documents and objects are genuine, not counterfeit or manipulated.

The norm set by Rule 901 is live testimony by a witness who has personal knowledge of the genuineness of the proffered evidence. In the case of an electronic record, a typical example is an email that on its face was sent from Smith to Jones on January 1, 2014. Smith can authenticate the email by testifying that it is an accurate copy of an email he sent to Jones on that date.

Under normal circumstances authentication is seldom contested. Most evidentiary challenges are made on other grounds, such as relevance, hearsay or undue prejudice. However, even though a challenge to authentication is unlikely, the proponent (the party seeking to have the record admitted into evidence) must still be prepared to lay the proper evidentiary foundation just in case.

This can be burdensome or difficult. For example, some witnesses are only needed to testify as to authentication. Calling someone to testify solely to authenticate a record is an inconvenience to the witness and unwelcome expense for the litigant. Even worse from the proponent’s perspective is a situation where there is no witness able or willing to testify; to illustrate using the email example, where Smith is a former employee who is hostile to the company and outside the court’s subpoena power.

Rule 902(13): Machine-Generated Evidence is Self-Authenticating

Rule 902 provides an alternative route to authenticating certain types of evidence. In its current form, the rule enumerates 12 categories of self-authenticating evidence. The classic examples of self-authenticating records are newspapers and government-issued documents, which carry an intrinsic presumption of authenticity. However, the category that is conceptually most similar to the new provisions is qualifying business records under 902(11). Specifically, these may be authenticated by witness certification (affidavit) instead of by live testimony.

Amended Rule 902 adds two new subsections specifically for electronic evidence. The first, 902(13), applies to “a record generated by an electronic process or system that produces an accurate result.” The text further incorporates by reference the procedural requirements of 902(11); this language is repeated verbatim in new subsection 902(14) and will be treated in detail below.

The essence of 902(13) is that it classes machine-generated evidence as self-authenticating. These are three common scenarios illustrating how a proponent could take advantage of the new rule:

  • The Windows Registry (part of the Windows operating system) stores data about devices connected to the computer using the USB port. Such data is frequently at issue in employment matters as it is relevant to determining if the employee transferred files from the computer to a USB flash drive or hard drive.
  • Many personal injury cases turn on location data. Relevant logs are auto-generated by a GPS device in a car or GPS app on a mobile device.
  • In the context of a criminal prosecution, 902(13) covers reports generated by forensic laboratory tests for the presence of illegal substances provided that the test is performed using validated equipment and processes (i.e., “that produces an accurate result”).

For further reading, several specific examples of the applicability of 902(13) are provided in a report by the Advisory Committee on Rules of Evidence (page 276, 303); the article further includes the full text of the amendments and Committee notes.

Read the full article here

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