IST Discover-E White Paper:

FRE 902 Amendments:

What You Need to Know

At IST Discover-E, we have years of experience helping our clients with their eDiscovery needs along with full scale legal support management systems. We are expert in creating and customizing eDiscovery processes that best fit our client’s needs and expectations. Our model is uniquely transparent, easy to understand and effective in aiding our clients get the decision they want for their clients.

Two amendments to Federal Rule of Evidence 902 (FRE 902) that became effective 12/1/17 have a significant impact on the collection of electronically stored information (ESI) and its admission at trial.  Rule 902, paragraphs (13) and (14), allow for authentication of electronic evidence by an affidavit of a “qualified person” who can certify in writing that the document was obtained within the requirements of Rule 902(11) and (12).

In particular, FRE 902(14) is the single most important legal development directly impacting ESI collection practices to date.  All eDiscovery and computer forensics professionals have a professional responsibility to keep current with key legal and technological developments in the field. There is no question FRE 902(14) is such a development, and all those involved in ESI preservation and collection from both a technical, legal and managerial perspective need to be fully briefed on the law.

Here is the text of the new rules:

 

902 (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).

902 (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 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).

 

While they may sound complicated, the intent of the new rules is actually very simple. Essentially, FRE 902(13) and (14) will allow parties to authenticate certain types of ESI without needing to offer any testimony as to foundation. Any attorney should look at this as a good move because this will reduce the amount of data that would fall prey to spoliation and is simply taking an already existing best practice and enforcing it.

The types of evidence that would fall under these rules could include GPS data, cell phone photos, text messages, and other electronic evidence, if the proponent introduced an authentication certificate, pursuant to FRE 902(13).  FRE 902(14) will allow, among other things, self-authentication of forensic copies of web pages, text messages, or emails, certifying that they are the same as the originals. Logistically, these rules would require the proponent of the ESI to present a certification sufficient to establish the authenticity of the evidence, at which point the opposing party would have to determine whether it could actually make a real challenge to the authenticity of the evidence. If the opposing party did not timely object to the certification, then no authenticating witness would be necessary at trial.

In light of these amendments, it would behoove parties to litigation to make sure, in cases where large quantities of ESI could play a significant role at a potential trial, to collect such ESI using forensically sound methods, including employing specialists in appropriate cases.  The clearer the records about what collection practices were utilized, and the more proactive counsel can be about giving notice to the opposing party and obtaining the appropriate certification in advance of trial, the more time and expense will be saved.

 

Ideally, these amendments will result in smoother trial preparation, fewer witnesses, and shorter trials.

 

IST Discover-E has leveraged industry best practices of leading data collection and forensics partners for the past five years.  We recognize that the most critical aspect of collections is ensuring that the data is admissible in a court of law.  Our collections and forensics partners will be the foundation that our clients entire case could reside upon – we take this very seriously and only partner with the best.

IST Discover-E understands that every matter is unique, which is why we offer and develop a wide range of eDiscovery solutions fulfilling both your and your client’s requirements in all 50 states.  The best part about partnering with IST is our customer-centric approach to all services provided.  From collections through production and review, we are with you every step of the way and our consultative expertise will provide you with the tools you need to handle eDiscovery matters competently and confidently.

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