Legal Considerations for Electronic Evidence, Part 2: Relevance and Authenticity
This post is the second in a series discussing a legal opinion that focuses on means for establishing electronic documentation as evidence for legal proceedings in the United States legal system. The opinion was written in response to an insurance arbitration case concerning coverage for lightning damage to the plaintiffs’ yacht. Both parties to the case (the yacht owners and the insurance company) submitted emails as evidence to support their claims, but the judge found that neither party had taken sufficient steps to establish the admissibility of electronic evidence and dismissed both sides’ motions without prejudice so that they could do the necessary foot work and resubmit. At the same time, the judge took advantage of writing the opinion to pull together a comprehensive review of extant precedent on the submission of electronic evidence in order to create a resource for future counsel relying on electronic documents as a source of evidence. The judge writes concerning five issues that must all be addressed when submitting electronic evidence–just as would be done for paper evidence. Those issues are: relevance, authenticity, hearsay, original or duplicate documentation, and unfair prejudice. This post will deal with relevance and then begin to deal with authenticity. However, Authenticity is a very complex issue, so there will be at least two posts dealing with it.
The discussions posted here are based on commentary presented in the Memorandum Opinion for the case “Jack R. Lorraine and Beverly Mack, Plaintiffs v. Markel American Insurance Company, Defendants. Civil Action No. PWG-06-1893,” heard in the United States District Court for the District of Maryland. The opinion was written by Paul W. Grimm, Chief United States Magistrate. For an overview of the case, please see the post “Legal Considerations for Electronic Documentation in the U.S.“
Issue 1: Relevance
Relevance refers to whether or not a piece of evidence has any direct bearing on the case at hand in terms of contributing to the ability to prove or disprove facts of the case. According to Judge Grimm, relevance is the first thing to be established for any potential piece of evidence, including an electronic document. Following Federal Rule for Evidence (FED. R. EVID) 401:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probably than it would be without evidence. The question of relevance is thus different from whether evidence is sufficient to prove a point (Lorraine v. Markel, p. 13).
Given that this standard must be met for establishing the relevance of any sort of evidence, regardless of origin or format, it isn’t at all difficult to figure out how this rule applies to electronic evidence, or “electronically stored information” (ESI). As indicated in the quoted material above, at the bare minimum, counsel has to demonstrate that the documentation they wish to submit has some bearing on the facts of the case–this is largely established through content and origin of the document. Once relevance has been established the next step is to establish the authenticity of the documentation in question.
Issue 2: Authenticity: The Lay of the Land
Authenticity simply means that a document is indeed what it is represented to be. In fact, this aspect of establishing a document as evidence is closely related to relevance–if the document is not what it is purported to be, then it is not relevant to the case. At the very least, the party putting forth the document (the “proponent”) has to provide sufficient evidence such that, “[t]he Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so” (United States v. Safavian as cited in Lorraine v. Markel, p. 17). In other words, at the very least, the proponent needs to establish the overwhelming likelihood that a document is what it is supposed to be, s/he is not required to establish its authenticity beyond all shadows of doubt.
Establishing authenticity seems straight forward on the surface of things, but the legal rules and protocols surrounding it are involved and complex. In fact, out of the 101 page opinion that Judge Grimm wrote to cover the five key issues related to establishing the admissibility of electronic documentation into evidence, the section on authenticity accounts for 40 pages (Lorraine v. Markel, Pp. 16-56). There are several Federal Rules of Evidence and issues of precedent or procedure that apply to establishing authenticity, but this and subsequent posts will only focus on those that relate most directly to questions of interest for archiving and preservation, namely challenges related to establishing authenticity and the role of metadata in establishing the same.
Key types of evidence to be authenticated
The question of establishing authenticity applies to all forms of electronically produced document or communication, but from the perspective of human rights work, I will draw out those forms that are most directly relevant to legal action and archiving vis-a-vis human rights electronic documentation. Future posts will work through the issues associated with authenticating these forms in detail. The forms in question are:
- Webpages and website postings (e.g. comments on blogs or bulletin boards)
- text messages and chat room content
- Computer stored records and data
- Digital photographs (and by extension, video)
Clearly, there are other forms of digital and electronic documentation or communication that exist–e.g. audio recordings, mashups, Twitter tweets, Facebook posts–but those listed are the types focused on in Lorraine v. Markel, largely because in 2007 (when the opinion was written), Web 2.0 had not taken off to the extent that it has now. However, as we will see in working through the issues and rules related to the five document types listed, the considerations will be the same for new social media text sources and it is likely that Federal Rules of Evidence are being extended to accommodate them as sources of evidence even as we speak.
Key procedures for establishing authenticity
As Judge Grimm notes in his opinion, the world of technology is quickly changing, making it very difficult for there to be any standard of evidence that applies across all instances of electronic documentation. Metadata associated with computer programs, media platforms, and the like are an important source for authenticating a document, but due to the changing nature of the technology world, the court cannot expect metadata standards, nor can judges or juries–as technology lay folk–be expected to be up to speed on the latest iterations of metadata practices. Thus it is incumbent upon counsel (lawyers for the plaintiff and defendant) to use multiple means of establishing the relevance and authenticity of any given piece of electronic information.
Fortunately, the current Federal Rules of Evidence extend nicely to address issues related to electronic documentation, thus allowing counsel to extend rules and judges to find those extensions to be valid. As a result, a body of precedent already exists demonstrating that if a piece of electronic evidence stands up to the rigors of discovery and foundation, then it serves as evidence just as paper documentation, phone calls, or even reported conversations do. And since there is no standard of metadata or presentation for any of these more traditional forms of evidence, the court expects no such standard for electronic evidence, either. Instead, counsel are expected to use a combination the following means of establishing the authenticity of electronic evidence (see Lorraine v. Markel p. 21–listing only those items that apply specifically to electronic evidence. See the full text in the opinion for a complete list of rules for evidence under FED. R. EVID. 901(b)):
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is waht it is claimed to be.
(3) Comparison by trier [jury] or expert witness. Comparison by the trier of fact or by expert witnesses with specimens that have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(9) Process or system. Evidence describing a process or system used to produce a result showing that the process or system produces an accurate result.
In addition to FED. R. EVID. 901, two other Federal Rules come into play–902 and 201.
Rule 902 allows for authentication of evidence through extrinsic evidence in a process called “self-authentication.” Essentially, the nature of the document itself, the way it has been identified and recorded, and the process by which it was recorded are sufficient to ensure that the document is what it purports to be. Such self-authenticating indicators include (Lorraine v Markel p. 31-32):
- public documents (foreign or domestic) carrying a seal of certification
- public documentation (foreign or domestic) without a seal, but vouched for under seal by an authority able to identify the document
- Foreign documents executed and/or attested by authorized individual
- certified copies of public records (foreign or domestic)
- official publications
- news papers or periodicals
- trade inscriptions–signs, tags, or labels affixed by home offices
- documents acknowledged by a notary public
- commercial paper related to documents, e.g., signatures
- documents declared by Act of Congress to be authentic
- certified domestic records of regularly conducted activity accompanied by declaration of such written and sealed by authority
- certified foreign records of regularly conducted activity accompanied by declaration of such written and sealed by authority
Rule 201 allows for the authentication of evidence through judicial notice of adjudicative facts that are either generally known within the jurisdiction of the court or for which accuracy can be determined by sources that “cannot reasonably be questioned” (Lorraine v. Markel, p. 38 citing FED. R. EVID. 201(b); WEINSTEIN 201.12). Essentially, in this sort of authentication, if the judge recognizes the ubiquity of a form or practice of documentation as common in his or her jurisdiction, then the documentation is acceptable as evidence.
The three rules and their associated sub-rules above were all originally written in a world of paper documentation, however, as we will see as future posts work through examples of their application, they can be easily extended to electronic documentation, allowing for their authentication even in the absence of good metadata or solid knowledge of the opperations of programs and platforms. As Judge Grimm summarizes the situation:
The above discussion underscores the need for counsel to be creative in identifying methods of authenticating electronic evidence when the facts support a conclusion that the evidence is reliable, accurate, and authentic, regardless of whether there is a particular example in Rules 901 and 902 that fit.
In short, counsel need to recognize that no single approach to authentication will serve all cases and classes of electronic evidence because of the wide diversity of documentary types that exist. Understanding how rules of evidence transform electronic documents into admissible evidence has important implications for thinking about producing, archiving, and preserving electronic documentation of human rights issues. In a context that increasingly calls for standards and best practices, we recognize that courts of law have no expectation of standardized formats, metadata, or archiving practices. Such standards serve as one part of a larger set of supporting evidence for establishing a document as evidence. The standards do not stand alone.