Two recent rule changes from the Advisory Committee on Evidence, which were approved and will take effect on December 1, 2017, are designed to assist with authentication of electronic evidence. The first new rule, Rule 902(13), provides a certification process for digital information produced by a computer system or process, which is somewhat analogous to Rule 902(11)’s provision for the certification of business records. The other new rule, Rule 902(14), governs the self-authentication of copies of electronic information, permitting the authentication of a file by using its hash value, which is a unique identifier establishing that an electronic copy of a piece of data is digitally equivalent to the original, thus eliminating the need for further authentication by witness testimony, and eliminating any ensuing legal battles on the authenticity of the data.
Attorneys must, however, remember that ascertaining the authenticity of digital evidence is only the first step in determining admissibility. But these new rules will assist the administration of justice by eliminating the need for disputes over technology and between technologists, at least where the collection of evidence was properly certified.
WHAT TO CONSIDER
When evaluating the cost-benefit of the rule changes it is important to keep in mind that you can no longer rely on the client to self-collect its ESI. Rather you must bring in a “qualified person” to make or supervise the collection and properly prepare for litigation. For more information, listen to Diane Kilcoyne's webinar presented at American University Washington College of Law. ESI Group provides complete e-discovery counsel, data management and processing required to prove your case. Contact us for more information on our services.