This is Part 3 in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1 and here to read Part 2]..

After you have assessed the discovery needs and issues in a given matter, and you have implemented appropriate preservation mechanisms, an advisable next step is to analyze and understand your client’s electronic information systems and the ways in which that data is stored.

Because each organization implements its own combination of hardware (enterprise servers, local desktops, departmental servers, hand-held devices) and software (the Microsoft Suite, Salesforce Business, Zoho One), this may be a good time to consult with a technical expert.  Indeed, if the client has an in-house IT team, it is critical to coordinate efforts with that team.  They will be able to educate you on what data exists, where it resides, and for what period of time.  This information will allow the attorney to assess the ESI that exists in the context of the legal scope and likely discovery obligations.  It may also be worth the expense of retaining a third-party vendor depending on the circumstances of the case, and the client’s in-house abilities.  If you don’t fully understand the systems in place, the way in which data is stored in those systems, and for how long, you run the risk of overlooking sources of potentially relevant ESI.  You also run the risk of committing to your adversary to produce data that, for example, has not existed for the last 6 months because of the client’s auto-deletion policy.

Have questions?  Please contact me at kcole@farrellfritz.com.

Earlier this year, I wrote about the then-proposed changes to the Federal Rules, and how those changes (if implemented), could impact electronic discovery. (February 15, 2017 blog)  Well, the time has come — effective December 1, 2017, the amendments to Federal Rule of Evidence 902 “Evidence That is Self Authenticating” went live.

As the title suggests, Federal Rule of Evidence (“FRE”) 902 applies to evidence that is self-authenticating (i.e., sealed and signed public documents, certified copies of public records, newspapers).  Because such documents are deemed “self-authenticating,” attorneys do not need to go through the authentication process in court with qualified expert testimony.  Effective December 1st, two new categories of documents will qualify as self-authenticating, too.

Specifically, 902(13) and (14) are the newly added provisions – each of which apply to electronically stored documents.

Subsection 13 provides:

(13) Certified Records Generated by an Electronic Process or System. 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).

And, subsection (14) provides:

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital FEDERAL RULES OF EVIDENCE 3 identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

Subsection (13) applies to machine-generated information (i.e., produced by a computer system or computer process) and is analogous to Rule 902(11)’s certification of business records.  Subsection (14) applies more broadly to copied/replicated ESI provided the copy retains a hash value that is identical to the original.[1] Subsection 14, thus, effectively dispenses with the costly need for trial testimony of a forensic or technical expert where best practices are employed, as certified through a written affidavit by a “qualified person.”

While neither subsection (13) nor (14) dispense with the need to demonstrate authenticity, the new provisions drastically simplify the process.  Indeed, the expectation is that the new Rules will provide a streamlined and efficient process to establish a foundation for ESI collected in a Rule 902(14) compliant manner. This will increase predictability by eliminating surprise challenges, and will encourage the use of ESI practitioners by allowing written certifications in the place of expensive and time-intensive in-person testimony.  Indeed, the ability to eliminate foundational testimony will undeniably result in significant cost savings to one’s client and help promote judicial efficiency.[2]

[1] Recall, a file’s hash value is often likened to its fingerprint – a unique identifier attributable to the contents of a file being processed through a cryptographic algorithm, which results in a unique numerical value – the hash value – being produced that identifies the contents of the file.

[2]  However, this necessarily presupposes that practitioners in the federal courts will understand what a 902(14) compliant collection means.