June 22, 2018 Practice Points

New Rules for Self-Authenticating Electronic Evidence

Federal Rules of Evidence 902(13) and (14) make it easier to authenticate electronic data

by Andrew Toft

The Federal Rules of Evidence were amended effective December 1, 2017 to make it easier to authenticate data from electronic sources. The new rules describe a process for authenticating records “generated by an electronic process or system,” such as a printout from a webpage, or a document retrieved from files stored in a personal computer. They also provide for using a “process of digital identification” such as hash values to authenticate that electronic data is what it purports to be.

Rule 902 lists “items of evidence that are self-authenticating” and “require no extrinsic evidence of authenticity in order to be admitted.” Amendments effective December 1, 2017 added two new items of evidence to this list.

Rule 902(13) provides for the self-authentication of: “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).”

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