The Quiet Amendment: How E-Discovery Practitioners Benefit from Upcoming Changes to FRE Rule 902

by Exterro, Inc.
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A year and a half ago, the world of e-discovery was abuzz with Federal Rules amendment talk. And rightly so – the changes then greatly affected the process, particularly with Reasonableness (Rule 37) and Proportionality (Rule 26). So when I first heard there was a new amendment coming up this year (this time with the Federal Rules of Evidence), I was surprised that not much was being said about it.

Under the proposed amendment to FRE 902, which will take effect December 1, 2017, parties may authenticate electronically stored information using hash values, system registries, and other electronic means without requiring the testimony of an expert witness.

Under the current rule, there are only a limited number of document types that are self-authenticating and require no extrinsic evidence of authenticity to be admissible at trial. These are:

  • Government documents
  • Certified copies of public records
  • Newspapers
  • Certified business records

To dig deeper into what this means and how it might benefit those of us working in e-discovery, I asked Robert Cruz, Director of Information Governance, Actiance:

“The upcoming amendment is significant in that it raises the bar on what courts will interpret as defensible practices used for the collection of social media.  We hear that more firms are beginning to see social media appear as subject to e-discovery requests – yet the practices employed by firms for this task continue to be dominated by rudimentary approaches such as screen scraping, attempting to build connectors to native content sources, and some even resorting to taking cell phone photos of social media sites in an attempt to capture what may be posted at a specific point in time.  The results of these methods have produced a consistent theme: questions surrounding the authenticity of those sources.”

Cruz continues, “What also is surfacing, is the unique challenge that social media creates further complicating the collection and review of those rich communication sources, namely, the fact that social media often contains dynamic, living conversations, which can be altered or deleted between the time they are created and when they are collected for eDiscovery. Simply scraping a screen does nothing other than capture a single point-in-time view of what may have been an important conversation.  Attempting to understand what might have been communicated in social media through the use of these methods of collection ultimately adds to discovery expense in having to re-assemble social conversations – but also increases the risk that the collection may have missed an important component that may have changed was missed.”

So how will this benefit e-discovery teams? Cruz says, “It will increase the premium of methods which provide a full forensically-sound capture of these content sources. Firms will now see greater benefit in utilizing technology and services that provides a complete binary record, hash value, and preservation of metadata of social media posts – not just to be considered ‘self-authenticating’, but also to show that all components of those social conversations have been captured – in spite of how they may have continued to grow or evolve over time. This, ultimately, will provide greater defensibility and lower e-discovery risks associated with non-email content sources.”

Greater defensibility and lower risks, along with the streamlining of process and possibly cost-savings, are exactly what today’s e-discovery teams are looking for. So, understanding this new amendment could prove useful. For an easy overview, check out Exterro’s latest visual guide!

Exterro's Rule 902 Visual Guide

[View source.]

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Exterro, Inc.
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