Overcoming Authentication Hurdles to the Admission of Electronic by ncb12099


									Overcoming Authentication Hurdles
to the Admission of Electronic
By John D. Martin

       lectronically-stored information (ESI) has             Typical Authentication Issues with
       changed the landscape of civil litigation.             Electronic Evidence
       Approximately 92 percent of new informa-               Historically, many courts made authenticating
tion is created electronically, and at least 70 per-          electronic evidence a daunting—and sometimes
cent of all electronic files are never committed to           impossible—task. For example, some courts have
hard copy.1 The pervasiveness of ESI has promoted             required detailed evidence of the computer opera-
an immense amount of discussion regarding the                 tor’s competency and the mechanical operations
pretrial discovery and handling of this material.             of the machine.5 In a 1965 Nebraska case, the
However, “[v]ery little has been written . . . about          court did not admit electronic evidence until the
what is required to ensure that ESI obtained during           proponent submitted 141 pages of authentication
discovery is admissible into evidence at trial. . . .”2       information.6
   In Lorraine v. Markel American Insurance Co.,                 Modern courts subject ESI to the same authen-
Chief U.S. Magistrate Judge Paul W. Grimm                     tication requirements as most other types of evi-
authored a seminal opinion regarding the admis-               dence. Therefore, authentication generally requires
sion of ESI. Judge Grimm outlined five questions              a showing of reliability—or that the evidence is
a court admitting ESI should consider in order to             what the proponent claims it to be.7 Although
determine its evidentiary value:                              courts tend to analyze ESI under the same basic
                                                              rubric as other evidence, these same courts often
   (1) [I]s the ESI relevant as determined by Rule            require proponents of ESI to pay more attention
   401 (does it have any tendency to make some fact           to foundational requirements than proponents of
   that is of consequence to the litigation more or less
                                                              non-electronic evidence.8 As a result, attorneys
   probable than it otherwise would be); (2) if relevant
   under 401, is it authentic as required by Rule 901(a)      “often fail to meet even this minimal showing
   (can the proponent show that the ESI is what it pur-       when attempting to introduce ESI. . . .”9
   ports to be); (3) if the ESI is offered for its substan-      Under the federal rules, on which many states
   tive truth, is it hearsay as defined by Rule 801, and      base their rules of evidence, a proponent can help
   if so, is it covered by an applicable exception (Rules     ensure authentication by one of five essential
   803, 804 and 807); (4) is the form of the ESI that         means: the methods illustrated by the nonexclu-
   is being offered as evidence an original or duplicate
                                                              sive list in Rule of Evidence 901(b); the 12 self-
   under the original writing rule, or if not, is there
   admissible secondary evidence to prove the content         authentication methods under Rule of Evidence
   of the ESI (Rules 1001–1008); and (5) is the proba-        902; judicial notice under Rule of Evidence 201;
   tive value of the ESI substantially outweighed by          or admission, stipulation, or waiver under Rules of
   the danger of unfair prejudice or one of the other         Civil Procedure 16, 26, and 36.
   factors identified by Rule 403, such that it should be
   excluded despite its relevance?3                           Authentication Through Rule 901
                                                              Federal Rule of Evidence 901(b) offers a nonex-
   Of these steps, authentication can pose unique             haustive, nonexclusive list of 10 authentication
and formidable hurdles to a proponent attempt-                methods, and leaves open “room for growth and
ing to admit ESI. Courts vary widely on their                 development in this area of law.”10 Although
approach to ESI authentication, and laying a                  the rule envisions numerous potential means of
proper foundation for authentication of ESI often             authentication, three key methods deserve special
includes satisfying certain hearsay exceptions.               attention: testimony that the evidence is what it
Understanding these authentication issues is criti-           purports to be, description of the accuracy of a
cal for any civil attorney as ignorance will hardly           process or system, and identification of distinctive   John D. Martin
be accepted as a valid excuse. As Judge Grimm                 characteristics in conjunction with circumstantial     John D. Martin is a part-
noted, “[I]t makes little sense to go to all the              evidence.                                              ner with Nelson Mullins
bother and expense to get electronic information                 Witnesses with various types of knowledge           Riley & Scarborough in
only to have it excluded from evidence. . . .”4               may testify that ESI is what the attorney purports     Columbia, South Carolina.

www.abanet.org/litigation/committees/trialevidence                                                                   WINTER 2009      proof   13
                              it to be. A witness may testify from personal            and deleted by relatively novice computer users.
                              knowledge if they “participated in or observed           Digital signatures show that a person has viewed
                              the event reflected in the exhibit.”11 This could        an electronic document, but these signatures
                              include a person who drafted an email at issue           often do not indicate when a user created a file
                              or the webmaster of a website.12 When a witness          or whether an unauthorized individual used the
                              testifies on how the exhibit is normally made,           signature.18 Some storage systems can ensure that
                              “the authenticating witness [must] provide factual       information is not modified, but storage systems
                              specificity about the process by which the elec-         do not establish authenticity for the process that
                              tronically stored information is created, acquired,      placed the information there. Lastly, computer
                              maintained, and preserved . . . as opposed to . . .      forensics involves locating, examining, and ana-
                              conclusory statements. . . .”13                          lyzing ESI.19 Computer forensics can be expensive
                                 For ESI created by computers, Rule 901(b)             and admission will typically involve expert testi-
                              (9) allows authentication by describing a process        mony about the ESI at issue. A proffering attorney
                              and showing that the process generates accurate          should decide well before collecting ESI if a case
                              results. In re Vee Vinhnee, a Ninth Circuit bank-        will require strict forensic methodology.
              No single       ruptcy case, laid out an 11-step foundation for
                              these types of exhibits:                                 Authentication Through Rule 902
       checklist can             1. The business uses a computer
                                                                                       Evidence authenticated under one of the 12
                                                                                       proscribed methods in Federal Rule of Evidence
                                 2. The computer is reliable                           902 does not require sponsoring testimony.20
 encapsulate the                 3. The business has developed a procedure for         Electronic evidence is typically introduced as a
                              inserting data into the computer                         trade inscription or as a certified domestic record
 various nuances                 4. The procedure has built-in safeguards to           of regularly conducted activity.
                              ensure accuracy and identify errors                          Documents can be self-authenticated by labels
     that can impact             5. The business keeps the computer in a good          or tags, indicating ownership, affixed in the
                              state of repair                                          ordinary course of business.21 This method could
      a proponent’s              6. The witness had the computer readout cer-          implicate various types of electronic correspon-
                              tain data                                                dence. For example, business emails will often
              ability to         7. The witness used the proper procedures to          identify the employer or transmission’s origin.
                              obtain the readout                                       “The identification marker alone may be suffi-
authenticate ESI.                8. The computer was in working order at the           cient to authenticate an email. . . .”22
                              time the witness obtained the readout                        To authenticate a certified domestic record of
                                 9. The witness recognizes the exhibit as the          regularly conducted activity, a proponent must
                              readout                                                  establish all of the elements of the business record
                                                                                       exception to hearsay. “Thus, the most appropri-
                                 10. The witness explains how he or she recog-
                                                                                       ate way to view Rule 902(11) is as the functional
                              nizes the readout
                                                                                       equivalent of . . . Rule 803(6) because the decla-
                                 11. If the readout contains strange symbols or        ration permitted . . . serves the same purpose as
                              terms, the witness explains the meaning of the           authenticating testimony.”23 To authenticate ESI,
                              symbols or terms for the trier of fact14                 (1) a qualified custodian with sufficient knowledge
                              These requirements may be strict, but “the               of the record keeping system and personal knowl-
                              fact that one court [has used them] should put           edge must make the authenticating declaration;
                              prudent counsel on notice that they must pay             (2) the declaration must show that the record was
                              attention. . . .”15                                      made at or near the time of the occurrence; (3) the
                                  Perhaps the most common authentication               declaration must show that the record is kept in
                              method for ESI is Rule 901(b)(4), which allows           the course of regularly conducted business activity;
                              a proponent to authenticate ESI through “inter-          and (4) the declaration must establish that it is the
                              nal patterns, or other distinctive characteris-          regular practice of the business to keep records of
                              tics, taken in conjunction with circumstances.”16        regularly conducted activity.24
                              Authentication under this method can be accom-               Proponents asserting this authentication/hear-
                              plished, in part, through hashing, metadata, digi-       say hybrid need to be aware that courts have
                              tal signatures, storage, and forensics. A hash value     varied wildly in their approach to electronic
                              is a unique identifier for an electronic file, and can   business records. For example, in State of New
                              offer evidence that two files are identical. Still,      York v. Microsoft, a district court in the District
                              “[t]he reliability of hashing depends on a trust-        of Columbia found that an email written by an
                              worthy reference [file]. . . .”17 Metadata, or data      employee was not a business record because the
                              describing the history of an electronic document,        proponent did not show that the employer’s regu-
                              can show where a message originated or how it was        lar practice was to require employees to make and
                              handled. However, metadata can be manipulated            maintain emails.25 Conversely, in United States v.

14    proof     WINTER 2009                                                                      www.abanet.org/litigation/committees/trialevidence
Safavian, the same court overruled an opposing         tion.32 A simulation, on the other hand, is based
party’s authentication objection that an email         on scientific data entered into a computer that is
chain consisting of several emails lacked reli-        programmed to analyze the data.33 Courts general-
ability.26 The court ruled that although alteration    ly require a more stringent authentication require-
of emails farther down in the chain was possible,      ment for simulations than for animations.34
that argument went to the weight of the evidence           Understanding how to authenticate a specific
and not its authenticity.                              type of ESI is also important because it can impact
                                                       any applicable hearsay exception. Authenticating
Authentication by Judicial Notice                      ESI under Rule of Evidence 902(11) inherently
A court may take notice that certain ESI is authen-    satisfies the business record exception to hearsay. In
tic, thereby eliminating the need for a proponent      contrast, although ESI authenticated under Rule
to make a showing. Under Rule of Evidence              of Evidence 901 might be authentic, a proponent
201, parties may request judicial notice of evi-       may still have to show that the ESI is either not
dence generally known within the trial court’s         hearsay or fits an applicable exception. In U.S. v.
geographic jurisdiction or of evidence capable
                                                       Ferber, a district court in Massachusetts ruled that
of determination from sources whose accuracy is
                                                       an email, although authentic, was nonetheless
beyond reproach.27 For example, courts could take
                                                       inadmissible under the business record exception
judicial notice of how email works, the underly-
                                                       to hearsay.35 The court ultimately found that the
ing principles governing computer programs, the
                                                       email could be admitted under the present sense
capacity of certain types of computer equipment,
                                                       impression to hearsay.36
or the computer printout process.
                                                           A proffering attorney must also understand
Authentication by Admission,                           their specific jurisdiction’s approach to ESI.
Stipulation, and Waiver                                Even federal courts, operating under identical
In advance of trial, either party may use the          procedural and evidentiary rules, take different
Federal Rules of Civil Procedure to guarantee the      approaches to ESI authentication. This wide-
authenticity of its ESI. Rule of Civil Procedure       ranging approach prompted Judge Grimm to
36(a)(1)(B) allows either party to serve a written     caution that “[u]nless counsel knows what level
request to admit the genuineness of any electronic     of scrutiny will be required, it would be prudent
document.28 Similarly, Rule of Civil Procedure         to analyze electronic [evidence] . . . by the most
16(c)(2)(C) allows a court to obtain stipulations,     demanding standard.”37
after the pretrial conference, about the admissibil-       Utilizing the stipulation and waiver provisions
ity of ESI.29 Stipulations can also come by way of     of the Rules of Civil Procedure in advance of
a case management order. In Rojhani v. Meagher,        trial can eliminate jurisdictional uncertainty and
the Colorado Court of Appeals ruled that medi-         authentication issues for routine and undisputed
cal records should have been admitted because          types of evidence. If the parties are unable to
the parties had stipulated in a case management        reach agreement, a proponent may file a motion
order that all medical records met foundational        in limine in hopes of getting a ruling on disputed
requirements.30                                        authentication issues. For ESI that an opposing
   Waiver can also give rise to authentication.        party will dispute, it is important that the pro-
Rule of Civil Procedure 26(a)(3)(B) requires an        ponent anticipate how the opposing party will
opposing party to file an objection to any pretrial    attack and plan accordingly. For key evidence
disclosure of ESI within 14 days.31 An opposing        that must be admitted, the proponent should have
party who does not file within 14 days forfeits any    a back up plan—multiple witnesses and methods
authentication objection.                              for getting that information into evidence.
                                                           To determine which method of authentica-
Avoiding Authentication Problems                       tion will be most effective, advance planning and
No single checklist can encapsulate the various        understanding are pivotal. Further, the evidentiary
nuances that can impact a proponent’s ability to       rules do not limit a proponent to only one method
authenticate ESI. However, a proffering attorney       of authentication. “The proffering attorney needs
can help ensure that ESI will bypass the authen-       to be specific in presenting the authenticating
tication hurdle by understanding their evidence,       facts and, if authenticity is challenged, should cite
their jurisdiction, and by planning in advance.
                                                       authority to support the method[s] selected.”38
   Each type of ESI presents its own problems. A
proponent of ESI should understand the authen-         Endnotes
tication requirements of the specific type of ESI          1. John C. McMeekin II & Thao T. Pham, The Age of
at issue. For example, courts often differentiate      E-Discovery: Practice Pointers for Preserving and Producing
                                                       Electronic Documents, ABA Brief (Summer 2008) (citing Jack
between computer simulations and computer ani-         Harrison, New Federal Rules on E-Discovery, For the Defense
mations. If the purpose of the ESI is demonstra-       (Dec. 2006)).
tive, courts usually consider it to be an anima-                                       Continued on page 19

www.abanet.org/litigation/committees/trialevidence                                                                   WINTER 2009   proof   15

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