eDiscovery Day 2017 is Self-Authenticating

December 1 is “eDiscovery Day.” On this eDiscovery Day, two new Amendments to the Federal Rules of Evidence go into effect with the intention to make authenticating evidence easier.  These Amendments do not alter or eliminate any other methods to authenticate electronically stored information.

Below are the pending Amendments to the Federal Rules of Evidence on Self-Authentication:

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).

Proposed Federal Rules of Evidence 902(13) [Emphasis added].

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).

Proposed Federal Rules of Evidence 902(14) [Emphasis added].

What the new Amendments Mean for Authentication of ESI

Someone from an eDiscovery service provider stated to me that these Amendments prohibit parties from using screen shots of social media at trial, because the Federal Rules of Evidence now require forensic software to capture data on social media.

Nothing is further from the truth than those self-serving and predatory statements. The new Amendments do not eliminate any methods to authenticate evidence in court under Rule 901, but instead are to streamline the self-authentication process. Moreover, no Judge in any court will deny a TRO for a victim of domestic violence, because she took screen shots of threatening social media posts instead of retaining a forensic expert. The evidentiary lesson here is, if a Judge says a screen shot is admissible pursuant to the Rules of Evidence, then the screen shot is admissible.

The Advisory Committee Notes to both pending Rules are very similar in explaining the Amendments do not eliminate any options for authenticating electronic evidence. As explained in the Advisory Committee Notes to Rule 902(13), the goal of the Amendment is to provide a procedure for authenticating evidence without the testimony of a foundation witness. The Advisory Committee Notes go on state:

Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate.

A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial.

Proposed Rule 902(14) provides litigants an option to authenticate electronically stored information with hash vales. As the Committee Notes explain:

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.

Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate.

These two Amendments should be very helpful to attorneys going to trial with electronically stored information. The use of chain of custody audit logs from forensic software, plus a detailed affidavit, should help streamline the process for authenticating ESI. That being said, the Amendments to Rule 902 do not eliminate any methods for authenticating ESI pursuant to Rule 901 or overturn case law.

The New Rules Take Nothing Away

Back in 1999, a Federal Judge took aim at the electronic evidence from the web, stating it was “inherently untrustworthy” with “voodoo information” and all online content to be “one large catalyst for rumor, innuendo, and misinformation.” St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999).

Russian election trolls aside, we don’t live in that world anymore. Courts routinely authenticate screen shots of web content with Federal Rule of Evidence 901, holding that an affidavit with circumstantial indicia of authenticity, such as the URL, date of printing (or screen capture), or other identifying information, are sufficient for a reasonable juror to believe that the evidence is what they proponent claims they are. ForeWord Magazine, Inc. v. OverDrive, Inc., 2011 U.S. Dist. LEXIS 125373, at *8 (W.D. Mich. Oct. 31, 2011), [citations omitted].

Federal Rule of Evidence Rule 901 has been used to authenticate screen shots of text messages. United States v. Arnold, 696 F. App’x 903, 906-07 (10th Cir. 2017). Moreover, there are other cases when the authentication of screen shots of social media was not even questioned, instead focusing on relevance or hearsay issues of the proffered evidence. See, United States v. Lemons, 792 F.3d 941, 946 (8th Cir. 2015) or Camowraps, LLC v. Quantum Dig. Ventures LLC, 74 F. Supp. 3d 730, 736-37 (E.D. La. 2015).

The Amendments to Federal Rules of Evidence 902 are to make life easier with self-authenticating electronically stored information that has been defensibly collected. Attorneys still have every other option for authenticating ESI that they have had since the 1990s. At the end of the day, ESI is admissible if the Court says it is admissible. While complexity of cases can vary requiring more sophisticated collection technology, no Judge will cause injustice by saying forensic software is now required to authenticate ALL online information, when a screen shot could be the best option for a petitioner in jeopardy.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.