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.

The Federal Rules are undergoing more changes!  And, effective December 1, 2017, there will be two new Federal Rules of Evidence (Rules 902[13], [14]) that will directly impact e-discovery in the federal courts.  These Rule changes are critical because, as aptly put by recently retired Magistrate Judge John Facciola, “[t]he Federal Rules of Evidence were…established to create uniformity in evidence law by providing guidance for every evidentiary problem that could be reasonably expected to occur at trial…But, as our tangible world has grown increasingly virtual, so too has the evidence,…[which] the [existing federal] rules are ill-designed to accommodate.”  Thus, the new rules deal directly with e-discovery and forensic collection processes and the authentication of same in federal litigation. The proposed Rules are designed to bridge this gap and demonstrate an important step toward updating the FRE to be more in sync with the increasingly digital world in which we live.

Specifically, Rule 902(13) provides for a certification process for ESI, produced by a computer system or computer process (analogous to Rule 902[11]’s certification of business records).

And, FRE 902(14) provides that electronic data recovered “by a process of digital identification” is to be self-authenticating, thereby not routinely necessitating the trial testimony of a forensic or technical expert where best practices are employed, as certified through a written affidavit by a “qualified person.”   Here, the authentication of the file would be established using the file’s hash value (i.e., the digital fingerprint).

Familiarity with the proposed changes are important for a number of reasons.

First, although the Rules aren’t expected to take effect for almost a year, ESI collected in a Rule 902(14) compliant manner any time prior to the Rule’s effective date (i.e., today) can be subject to the new Rule’s provisions once the Rule goes into effect. This is important, because digital evidence is routinely collected well in advance of trial.  So, practitioners need to understand and account for Rule 902(14) immediately given that electronic evidence that is collected today may not be used at trial until sometime after December 1, 2017.

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

For anyone who has interest in reading a very educating and comprehensive Law Review article about the proposed Rule 902(13) and (14), check out, “Law of the Foal:  Careful Steps Towards Digital Competence in Proposed Rules 902(13) and 902 (14),” 1 GEO. L. TECH. REV. 6 (2016), written by Hon. John M. Facciola & Lindsey Barrett.