If the parties have not agreed to stipulate to all or a portion of the exhibits for the trial, the attorney is responsible for ensuring that all exhibits are properly introduced and received into the record. Fed. R. Evid. 1002-1004.
∅ Offer copies of all documents to the judge (master, referee, etc.), the court reporter, other counsel, other parties.
∅ Authenticate the document.
Attorney: Let me show you what has been marked for identification as Exhibit 10. Do you recognize this document?
A: Please state the circumstances when you first saw Exhibit 10.
W: I retrieved it from the hard drive of the family computer.
A: Do you have unrestricted access to the family computer?
A: Did you make any changes whatsoever to the document before you printed it out?
A: Could you describe the contents of the document?
W: Yes. It is an e-mail from Jane Doe to my husband.
A: I would like to enter this document into the record as Exhibit 10.
∅ Objections to authentication. If you don't want a document to be introduced, you may object to authentication.
A: Let me show you what has been marked for identification as Exhibit 10. Did you prepare this document?
W: No, but I printed it out of the family computer.
A: Do you know how this document was originally created on the computer?
W: No. All I did was print it out.
A: So you have no way of knowing how this document was created on the computer?
A: Were you present when the document was created?
A: Your Honor, I object to the introduction of this document. The respondent has failed to adequately authenticate this document. This witness has no personal knowledge of the creation of this document and cannot vouch for its accuracy.
∅ Sample cases on authentication
- Stafford v. Stafford, 641 A.2d 348 (Vt. 1993). The wife found on the family computer a file called "My List," which was an inventory and description of the husband's sexual encounters with numerous women. The wife testified she found it on the family computer and that it was similar to a notebook she had discovered in the husband's handwriting giving similar accounts. The notebook disappeared. "Plaintiff's testimony of the source of the document as a file in the family computer was sufficient to identify what it was."
- In re Marriage of DeLarco, 313 Ill. App.3d 107, 728 N.E.2d 1278 (2000). Testimony of wife's attorney concerning his firm's billing software and procedures for review of records produced by it established adequate foundation under business records exception to hearsay rule for admission of computer-stored billing records in connection with wife's petition for contribution to her attorney's fees in dissolution action.
- Fenje v. Feld, 2003 U.S. Dist. LEXIS 24387 (N.D. Ill., Dec. 8, 2003). Authentication of e-mail "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). Court noted that e-mail may be authenticated as from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; comparison of content to other evidence; or statements or other communications from the purported author acknowledging the e-mail.
- Etzion v. Etzion, 7 Misc.3d 940, 96 N.Y.S.2d 844 (Sup. Ct. 2005). In matrimonial action, wife moved by order to show cause for order permitting her to examine data on husband's personal and business computers. Court held that wife was entitled to copy data from husband's computers and to examine nonprivileged business records found therein.
Laura Morgan is a family law consultant in Charlottesville, Virginia, and a member of the Family Advocate Editorial Board.
Published in Family Advocate, Volume 29, No. 3, Winter 2007. © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.