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FRE 902 Amendments Go Live in Celebration of E-Discovery Day

Created on November 29, 2017


E-Discovery Market Analyst at Exterro

FRE 902 Amendments Go Live in Celebration of E-Discovery Day

Whether or not they intended to give us all an E-Discovery Day gift or not, the federal court system has done just that. Adopted by the Supreme Court earlier this year, Federal Rules of Evidence provisions (13) and (14) will go into effect on the third annual E-Discovery Day, December 1, 2017. So what impact will these amendments have on e-discovery practitioners? Let’s dig a little deeper to see whether this is a gift that will see everyday use or if it will end up in the spare bedroom closet for future re-gifting.

FRE 902 governs types of evidence that are self-authenticating. It covers government documents, certified public or business records, and newspapers, relieving attorneys of the need to authenticate these types of documents in court with expert testimony. Effective December 1st, two categories of electronically stored information will qualify as self-authenticating as well. In the past, attorneys needed to call qualified witnesses to authenticate ESI, but provisions (13) and (14) make it easier for litigators to authenticate ESI.

(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).

(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).

Provision (13) covers machine-generated information, like Windows Registry files, automatically created location data, or the result of forensic laboratory tests. Provision (14) provides broader authentication to copied ESI as long as its hash value--the file’s unique digital fingerprint--is identical.

It’s important to note that these provisions don’t change the baseline response to the question of “is this ESI authentic?” Rather they simplify the process of authentication, streamlining the litigation process and conserving valuable resources. But that change means a lot for e-discovery practitioners. First of all, it saves time and money. There’s no more need for in-court testimony by forensic technicians. It speeds up court proceedings and eliminates the need for travel for trials.

Additionally, it reinforces the value of using defensible technology and processes. Robert Cruz, Director of Information Governance at Actiance, explains that more than ever before, “Firms will now see greater benefit in utilizing technology and services that provide a complete binary record, hash value, and preservation of metadata… This ultimately will provide greater defensibility and lower e-discovery risks associated with non-email content sources.”

To find out more about current issues in e-discovery, sign up for any of the webcasts happening on E-Discovery Day this Friday, December 1st!