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.