Streamlining the Admissibility of ESI: Amendments to Federal Rule of Evidence 902
On December 1, 2017, amendments to Federal Rule of Evidence 902 became effective, streamlining the process of authenticating electronically stored information and admitting it into evidence.
F.R.E. 902 sets out various types of evidence that are “self-authenticating”—evidence that needs no extrinsic proof of authenticity to be admitted. Typically that extrinsic proof comes in the form of a witness who can verify the evidence through testimony. Examples of self-authenticating evidence under the prior version Rule 902 include public documents and records that are sealed, signed or otherwise certified; official publications; newspapers and periodicals; and certain types of certified business records.
The new provisions of F.R.E. 902 bring the rule into the digital age, adding two categories of self-authenticating evidence for electronically stored information:
(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 these new sections of Rule 902, instead of using witness testimony to authenticate records generated by an electronic system, or data copied from electronic devices or files, the party offering the evidence may provide a certification from a person with knowledge that the evidence is authentic. The proponent of the evidence must present the certification in advance of trial, with reasonable written notice, so the opposing party can decide if legitimate grounds exist to challenge to the authenticity of the evidence.
Examples of the types of evidence that fall under Rule 902(13)—records generated by an “electronic process or system that produces an accurate result”—include operating system logs and registries, system-generated metadata, and automated geolocation data. For a helpful exploration of some hypothetical use cases of the new Rule 902(13), I recommend this thoughtful article by John M. Haried in the winter 2016 issue of Judicature.
To rely on Rule 902(14) to introduce copies of data authenticated by a process of “digital identification,” parties typically will use certification of hash values. As the comments to the rule explain:
Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by “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, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original.
Although hash value is the most common method used today for verifying the authenticity of a copy, the rule’s commentary recognizes that changes in technology may give rise to other methodologies. The rule is therefore flexible enough to allow certifications through other reliable means of identification that become available with future technology.
The amendments to Rule 902 are intended to save litigants time and money—and preserve valuable court resources—by creating a more efficient method of introducing electronic evidence when there is no genuine dispute about its authenticity. At DiscoverReady, we focus on reducing the cost and burden of litigation, and on behalf of our clients, we welcome these amendments to F.R.E. 902.