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July 31, 2019 Practice Points

Four Ways to Authenticate Copies of Webpages and Other ESI Before Trial

If you think you need to hire an IT expert to testify in court, think again.

By Haidyn DiLorenzo and Kathryn Honecker

Electronically stored information (ESI) is all around us and quickly becoming the primary source of evidence offered at trial. Before the data is admitted into evidence at trial, however, Federal Rule of Evidence 901 requires you authenticate it by showing by a preponderance of the evidence that the item is what you claim it is. But how do you authenticate a copy of a Facebook post, text message, or webpage that you want to offer into evidence? If you think you need to hire an IT expert to testify in court, think again. The Federal Rules of Evidence provide at least four methods to authenticate ESI quickly and efficiently well before trial.

1.      “Self-Authenticate” by Certifying

To conserve the parties’ and the courts’ resources, the Federal Rules Advisory Committee amended Federal Rule of Evidence 902(13)–(14) to allow self-authentication for (a) “record[s] generated by an electronic process or system that produces an accurate result” and (b) forensic copies of ESI such as webpages, social media posts and profiles, emails, and text messages. The committee recognized that forensic and technical experts can easily ensure that copies of ESI are identical to their original sources by comparing their hash values, which are incredibly sensitive digital fingerprints that change drastically when a copy varies in the slightest way from the original source.

Nevertheless, to “self-authenticate” under Rule 902(13) or (14), you will still need to do three things:

a)      obtain a forensic or technical expert’s certification that the copy to be introduced is the same as the original;

b)      provide the opposing party with reasonable notice of your intent to offer the evidence; and

c)      make the evidence and certification available for the opposing party to inspect.

As such, you will not need to call a technical expert to testify at trial if you properly self-authenticate through Rule 902(13) or (14).

2.      Authenticate with Admissions

If you want an even easier and less-expensive method, you can try to authenticate ESI by asking the opposing party to admit to authentication through formal requests for admissions under Federal Rule of Evidence 36(a)(2), deposition testimony, or even stipulations. If the opposing party admits that the ESI copy in question is a true and accurate copy of the genuine original ESI, there will be no need for you to call a witness to testify to the same thing at trial.

3.      Request the Document from an Opposing Party

Another quick, easy way to meet the authentication requirement is to request that the opposing party produce the document in discovery. In American Federation of Musicians, the Ninth Circuit allowed email evidence where it included a key individual’s email address and signature and the objecting party produced it in discovery. The court held that this combination of factors would allow a reasonable juror to find that the email was authentic. Many district courts have reached the same conclusion. Even where a court does not find production dispositive as to authenticity, you can argue that the court should factor it in to its determination, ideally allowing the evidence to reach the fact-finder. Check your jurisdiction to see whether this factor is considered as dispositive or merely a plus factor.

4.      Authenticate ESI as an Ancient Document

Finally, if you are offering ESI that originates from an older document, you may be able to use the authentication shortcut provided for ancient documents in Federal Rule of Evidence 901(b)(8). Documents and data compilations originally prepared at least 20 years ago and found in an expected place under circumstances that do not arouse suspicion about their authenticity are self-authenticated. For example, an email message from January 1, 1998, that was found in an archived email account’s inbox would likely qualify as an ancient document. Additionally, the ancient document rule applies broadly to ESI, because the date is based on the date the information was originally recorded (i) electronically or (ii) on paper, even if scanned and saved as ESI less than 20 years ago. The reasoning behind this rule is that witnesses to authenticate these documents are often unavailable and that any fraud is unlikely to remain viable after this lapse of time.

As these methods show, you can significantly reduce the effort and resources you put into authenticating ESI by being familiar with the authentication rules and understanding how these four methods have been applied in your jurisdiction.

Haidyn DiLorenzo is a 3L law student at Sandra Day O’Connor College of Law, a legal intern at Rose Law Group pc., and a member of the Consumer Litigation Committee. Kathryn Honecker chairs the Class Action Department at Rose Law Group pc, in Scottsdale, Arizona, and cochairs the ABA Section of Litigation’s Consumer Litigation Committee.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).