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  • Amendments to Federal Rules of Evidence Effect ESI Authentication

    On December 1, new amendments to Federal Rules of Evidence 803(16) and 902 went into effect that are designed to change the way that electronically stored information (“ESI”) is authenticated in federal court. These amendments were made in response to growing concerns over a potential evidentiary loophole for ESI that has been stored for a number of years, as well as addressing the costly and tedious nature of authenticating ESI. The amendments are meant to close this loophole as well as streamline the process for authenticating ESI.

    Traditionally, FRE 803(16) has been referred to as “the ancient documents” exception. This rule acts as an exception to the rule against hearsay by allowing documents to be entered into evidence for their truth so long as the documents are at least 20 years old. The stated rationale for the exception is based on the belief that the older a document is the more reliable it is. However, recently, there have been concerns that the rule could be used to admit large amounts of potentially unreliable ESI.

    To eliminate the concerns about the ancient document exception being used to admit ESI, Congress amended FRE 803(16) to now only include “[a] statement in a document that was prepared before January 1, 1998, and whose authenticity is established.” This means that any documents, including ESI, created after January 1, 1998, can no longer be admitted into evidence under the ancient document hearsay exception. The decision to make this date the cut-off point was reached due to the “exponential development and growth of electronic information since 1998.”

    However, this amendment has drawn criticism due to its seemingly arbitrary nature. While it is true that the use of ESI has grown significantly in the past 20 years, the use of computers and the internet was already significant prior to 1998. Thus, the amendment does nothing to address the problems associated with admitting ESI created prior to 1998. Critics have also noted that this amendment not only implicates ESI but also physical documents created after January 1, 1998. This could have profound effects in cases, such as those involving latent diseases and environmental change, where the use of old physical documents is especially prevalent.

    While the amendment to FRE 803(16) puts a limit on the admissibility of ESI, the amendments to FRE 902 are supposed make it easier to get ESI into federal court. Generally, FRE 902 deals with “evidence that is self-authenticating” meaning that these types of evidence do not require additional outside evidence of authenticity to be admitted at trial. Previously, ESI was not considered to be “self-authenticating” which forced litigators to incur the cost of having to bring an expert witness to court to confirm its authenticity. Now, the amendments to FRE 902 eliminate this requirement for certain types of ESI.

    Under FRE 902(13) “[a] record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person” is now considered self-authenticating. For example, this rule could be used to prove what time a USB drive was connected to a computer or to introduce pictures taken on a cell phone.

    FRE 902(14) states that ESI is self-authenticating if it is “[d]ata copied from an electronic device, storage medium or file, [and] if authenticated by a process of digital identification, as shown by a certification of a qualified person.” This section can be used to authenticate evidence taken from any electronic data source such as a cell phone or computer.

    While the amendments to FRE 902 do provide ways to make authenticating ESI in court easier, there are still hurdles to deal with. Even though a party no longer needs to bring an expert witness to trial to authenticate the types of ESI covered under the rule, they must still obtain a written certification that authenticates the evidence. Because of the technical nature in which ESI is held, the information that is required to be included in the certification is often complicated. Further, those looking to introduce evidence under this rule, must ensure that all of the necessary technical data is available in order to properly authenticate the evidence.

    Because almost all documentation is now digitally stored, institutions are highly encouraged to familiarize themselves with these new rules as well as ensure that there are effective protocols in place to protect ESI and the related data needed to authenticate it. Updates will be provided for any future amendments to these rules.

    If you, or your institution, have any questions concerning electronically stored information or production of same, please contact Cynthia A. Augello at 516-357-3753 or via email at caugello@cullenanddykman.com.

    Thank you to Ryan Soebke, a law clerk with Cullen and Dykman LLP, for his assistance with this blog.