New Rules Tackle Authentication of Electronic Data

by Proskauer - Minding Your Business
Contact

[author: Carl Mazurek, Law Clerk]

On December 1, 2017, two amendments to the Federal Rules of Evidence came into effect that impact how courts authenticate digital evidence. The addition of two categories to Rule 902’s list of self-authenticating documents seeks to streamline the introduction of digital evidence by avoiding costly delays that often serve little purpose. In doing so, it promises greater efficiency to those who adapt their practices to the new requirements.

Rule 902(13) waives the requirement of external authentication for “records generated by an electronic process or system,” provided that the accuracy of the process or system is certified by a person who meets the qualification requirements of 902(11) or (12). Examples of such records provided by the Advisory Committee include an operating system’s automated log of all USB devices connected to the computer, or a phone software’s machine-generated record of the time, date, and GPS coordinates of each picture taken.

Rule 902(14) provides that “certified data copied from an electronic device, storage medium, or file” will likewise be self-authenticating, again on the condition that such data is certified by a person qualified according to the standard of 902(11) or (12). This rule relies on documents’ digital fingerprints that can be matched to confirm that a copy is identical to the original.

In proposing the amendments, the Advisory Committee pointed to the fact that evidence of the type covered by 902(13) and (14) was rarely the subject of a legitimate authenticity dispute; more often, a party would wait until its opponent had incurred the expense and inconvenience of producing an authentication expert before either stipulating to authenticity, or failing to challenge the authentication testimony presented. By drawing on the procedures in place for business records and allowing authentication based on certification, the new rules “essentially leave the burden of going forward on authenticity questions to the opponent of the evidence.”

The amendments point to a number of best practices that parties should adopt in order to take advantage of the simplified authentication process for electronic information. Firstly, a specialist should be retained who can testify to the accuracy of the electronic process (in the case of 902(13)) or to the identity of digital fingerprints for the documents in question (in the case of 902(14)). In addition, both provisions specify the format of the information that is covered: 902(13) requires records generated by an automated process (not, for example, information manually entered by an individual), while 902(14) encompasses only files that are exact duplicates of each other, and would therefore exclude a document whose format had been changed (for example, from a word to an image document). It is therefore vital to implement file collection, transfer, and storage policies that ensure the relevant data is preserved.

The new rules represent a significant change in how electronic evidence is treated. For parties that take appropriate measures, however, they promise to save time and resources, and promote greater certainty.

[View source.]

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.

© Proskauer - Minding Your Business | Attorney Advertising

Written by:

Proskauer - Minding Your Business
Contact
more
less

Proskauer - Minding Your Business 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.