New Federal Rules of Evidence 902(13) and 902(14)

by Foley & Lardner LLP
Contact

You’ve got a case headed to trial in a few short months, and among your exhibits are a number of copies of web pages. You know you need to authenticate them to get them into evidence at trial (and also know your judge is skeptical about websites being digitally manipulated). In an unexpected about-face, opposing counsel won’t stipulate that the web pages are authentic, and while you could try to find a witness to testify to the authenticity, you’re not sure who fits the bill and if the client will be willing to pay for the expense. Do you have a problem on your hands? As of December 1, 2017, probably not – thanks to two amendments to the Federal Rules of Evidence (“FRE”).

For several years now, it has been an ongoing goal to adapt the federal rules to the ever-expanding proliferation of ESI in litigation. FRE 902 is the latest rule to be adapted with this goal in mind. FRE 902 governs evidence that is “self-authenticating,” meaning items of evidence that do not require any extrinsic evidence of authenticity in order to be admitted into evidence at trial (barring hearsay or another basis for exclusion). The items covered by this rule include, for example, sealed and signed U.S. public documents1, certified copies of public records2, and newspapers and periodicals3. Certain types of electronically stored information, or “ESI,” are scheduled to join this group and also be covered by FRE 902 on December 1, 2017.

Specifically, two new sections have been proposed for Rule 902, to be numbered FRE 902(13) and 902(14). The intent of both rules is to remove the current requirement to provide extrinsic evidence of authenticity at trial in order to admit certified records generated by an electronic system or certified data copied from electronic devices or files, unless the parties have a dispute about authenticity of particular documents.

Here is the text of 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).

While they may sound complicated, the intent of the new rules is actually very simple. Essentially, FRE 902(13) and (14) will allow parties to authenticate certain types of ESI without needing to offer any testimony as to foundation. Specifically, the following ESI will no longer need foundation-related testimony at trial: (1) A record generated by an electronic process or system that produces an accurate result, as shown by an appropriate certification4; or (2) data copied from an electronic device, storage medium, or electronic file, if authenticated by a process of digital identification, as demonstrated by an appropriate certification.5

The types of evidence that would fall under these rules could include, for example, GPS data, cell phone photos, text messages, and other electronic evidence, if the proponent introduced an authentication certificate, pursuant to FRE 902(13), showing that the ESI was obtained from systems that produced reliable results. FRE 902(14) will allow, among other things, self-authentication of forensic copies of web pages, text messages, or emails, certifying that they are the same as the originals.

Logistically, these rules would require the proponent of the ESI to present a certification sufficient to establish the authenticity of the evidence, reasonably far in advance of trial, at which point the opposing party would have to determine whether it could actually make a real challenge to the authenticity of the evidence. This certification would need to be made by a qualified person (someone who would otherwise be able to testify at trial regarding authenticity) and, for the tech-savvy reader, would likely be performed by checking the hash values for the original documents and the copies to ensure they are identical, unless and until future technology provided new methods of identification. If the opposing party did not timely object to the certification, then no authenticating witness would be necessary at trial. The intent of the committee is to encourage parties to litigation to determine in advance of trial whether either intends to challenge the authenticity of any ESI, to appropriately tailor their trial preparation and streamline the trial itself.

In light of these amendments, it would behoove parties to litigation to make sure, in cases where large quantities of ESI could play a significant role at a potential trial, to collect such ESI using forensically sound methods, including employing specialists in appropriate cases and in any event ensuring that the methods used track the hash values of the documents. The clearer the records about what collection practices were utilized, and the more proactive counsel can be about giving notice to the opposing party and obtaining the appropriate certification in advance of trial, the more time and expense will be saved. Ideally, these amendments will result in smoother trial preparation, fewer witnesses, and shorter trials.


1 Fed. R. Evid. 902(1)

2 Fed. R. Evid. 902(4)

3 Fed. R. Evid. 902(6)

4 Fed. R. Evid. 902(13)(proposed)

5 Fed. R. Evid. 902(4)(proposed)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP
Contact
more
less

Foley & Lardner LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.