Electronic evidence may be self-authenticating in new Federal Rule of Evidence
New changes to the Federal Rules of Evidence, set to become effective on December 1, 2017, will impact how e-discovery and electronic evidence are authenticated. By adding this subset of evidence to Rule 902, the rule on self-authenticating documents, the advisory committee seeks to streamline the admission of e-documents where the foundation is not at issue. Through authentication by a "qualified person," electronic evidence will be given a presumption of validity which the party opposing its admission must carry the burden. Importantly, however, a "qualified person" must use best practices for the collection, authentication, and verification of the evidence collected. In other words, the authentication of the evidence would likely need to be provided by a computer forensics expert in order to properly identify the so-called "hash value." As the advisory committee notes, the "hash value" is a number "that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file." While the committee appears to seek a streamlined approached to admission of the documents as self-authenticating, the process will definitely turn the focus on to the "qualified person" providing the authentication. Consequently, attorneys and parties must ensure that forensic experts are hired and consulted when electronic evidence is to be introduced. What remains to be seen is whether this new rule will fulfill its aim: to streamline an already expensive process that can be cumbersome to parties.
To read the full text of the rules submitted to Congress from the Supreme Court of the United States, see http://www.uscourts.gov/sites/default/files/2017-04-27-congressional_package_rev._4-25_final_final_with_signed_letters_and_orders_0.pdf.