Strategic Implications of Amendments to the Federal Rules of Evidence

Alerts / January 26, 2018

On December 1, 2017, the Federal Rules of Evidence were amended to add new rules addressing the self-authentication of evidence generated by electronic processes or systems [Fed. R. Evid. 902(13)] and self-authentication of data copied from an electronic device, storage medium or file [Fed. R. Evid. 902(14)]. The intent of these amendments is to streamline authentication of electronic evidence through a written pretrial certification intended to eliminate the need for the proponent of the evidence to call a forensic technician (or other sponsoring witness) to testify about his or her background, qualifications and process of conducting a digital forensic examination. These amendments focus on authenticity only, and a proponent of the evidence must still be prepared to overcome other hurdles to admissibility, including hearsay and relevance.

These new authentication rules have the potential to make the use of electronic evidence much smoother at trial. Where a party will not stipulate to authenticity in advance, the time and resources saved could be exponential; no longer will you have to prepare a witness for trial, and there is a real possibility of fewer disputes between opposing parties. However, the new rules will require those involved in collecting and preserving evidence to have protocols that maintain the information the Rules require in the certification. Thus, it will be imperative that organizations, law firms, and vendors employ preservation and collection policies that capture and transfer the required data, including maintaining each piece of data’s unique identifier (referred to as a “hash value”). These amendments do not prevent the parties from stipulating to authenticity, even without a certification. Nevertheless, they may incentivize parties to more aggressively challenge authenticity when it is apparent that an opponent is unable to make the pretrial certification envisioned by the amendments. Here are some sample certifications for both Rule 902(13) and Rule 902(14).

Authorship credit: Carey S. Busen and Gilbert S. Ketelas.

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