The New Rules of Federal Evidence Have Arrived
December 06, 2017
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. 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.
 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.
 However, this necessarily presupposes that practitioners in the federal courts will understand what a 902(14) compliant collection means.