Legal Considerations for Electronic Evidence, Part 3: Applying the Rules of Authenticity

This post is the third 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 a case  in which both parties submitted emails as evidence to support their claims, but the judge found that neither 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.

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.“

The last post dealt with relevance and gave an overview of the Federal Rules of Evidence that apply to establishing authenticity.  This post will illustrate how those rules apply specifically to four sorts of electronic evidence: E-mail, Website Postings, Messages & Chat Room Content, and Digital Photographs.  A fifth form, Computer Stored Records and Data, while straightforward, is more involved and will be the subject of the next post.

–Sarah

Authenticity: Review

The following summarizes  from the previous post, “Legal Considerations for Electronic Evidence, Part 2: Relevance and Authenticity.”  Read that post for an detailed outline of the Federal Rules of Evidence that apply to establishing the authenticity and admissibility of electronic documents in US courts.

Authenticity entails a process for establishing that a document is indeed what it is represented to be. As stated in Lorraine v. Markel,  the  party presenting electronic documentation as evidence  has to provide sufficient support 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 minimum standard is that the proponent 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 shadow of doubt.

In order to accomplish this, counsel needs to draw from  several Federal Rules of Evidence and issues of precedent or procedure in order to establish authenticity–specifically, Rule 901(b) sub-rules 1, 3, 4, 7 and 9, Rule 902, and Rule 201 (see the previous post for discussion of these rules).  This post will deal with how these rules get applied concretely to the following forms of electronic evidence:

1. E-mail
2. Webpages and website postings (e.g. comments on blogs or bulletin boards)
3. text messages and chat room content
4. Digital photographs (and by extension, video)

Authenticating E-mail:

According to Judge Grimm, the principle issue relating the authentication of e-mail is confirming authorship.  The concern here is forgery–essentially, logging into someone else’s e-mail account and writing in that person’s name would be the same as writing a letter on company letterhead and forging the president’s signature. Judge Grimm draws from a variety of cases illustrating that the main concerns for both traditional and electronic evidence are analogous and thus establish precedent for extending current Federal Rules of Evidence (FED. R. EVID.) 901 (b) (1 & 4) and 902 (7 & 11) in order to prove the admissibility of e-mail as a form of evidence.

FED. R. EVID. 901 (b) provides a number of ways to authenticate a document through witness testimony, distinctive characteristics of the document itself (e.g. content that clearly identifies or relates to the legitimate author), and by verifying the process of production for the document–namely that the computer and e-mail address used belongs to the author of the e-mail and that the proper e-mail program generated the document in question.   FED. R. EVID. 902, on the other hand, allows for a document to authenticate itself through characteristics of the document itself in a process called “self-authentication”.  That is to say, the document contains identifying information (e.g, official seals, the signature of a notary public, official letterhead, etc.) that verifies its document’s origin, though a witness must be called to attest to the authenticity of these sorts of characteristics. Thus:

The most frequent ways to authenticate e-mail evidence are 901 (b)(1) (person with personal knowledge), 901 (b)(3) (expert testimony or comparison with authnticated exemplar), 901 (b)(4) (distinctive charcteristics, including circumstantial evidence), 902 (7) (trade inscriptions), and 902 (11) (certified copies of business record (Lorraine v. Markel, pp 40).

Note that none of the standards for evidence under rules 901 (b) an 902 require any form of metadata or standard presentation of information.  The usefulness and validity of the material as evidence is determined by authoritative witness who can attest to content and to processes of production, or through characteristics of a document that are uniquely related to the business or agency that produces it.  That said, this latter “self-authentication”  information could very well be standard information such as date stamps, ID codes, and official seals that serve as metadata.  However, in looking closely the rule itself, the court frequently still requires an expert witness to confirm the authenticity of the self-same “self-authenticating” characteristics.  In sum, even in cases when a document contains self-authenticating information, a witness is still needed to verify that information.

Authenticating Internet Website Postings:

When it comes to authenticating content of a website, the primary concern that Judge Grimm cites is that, often, a third party other than the webpage author is responsible for the content that is posted.  This situation requires establishing that the website owner is nevertheless responsible for the content that appears on its pages.  Thus:

[i]n applying [the authentication standard] to website evidence, there are three questions that must be answered explicitly or implicitly.  (1) What was actually on the website? (2) Does the exhibit or testimony accurately reflect it? (3) If so, is it attributable to the owner of the site? (Joseph at 21, also SALTZBURG at §901.02[12], as cited in Lorraine v. Markel, pp 42).

Other factors that the court will consider in accepting website material as evidence include:

• the length of time data were posted on the website
• that others report seeing the material on the site
• that the material is available on the website for the court to verify
• that the data are of the sort normally posted to the website
• whether or not the site owner has published the same data elsewhere
• whether or not others have published the same data on other sites and attributed the site in question as the source (Joseph at 22, as cited in Lorraine v. Markel, pp 42).

These are questions that counsel needs to consider when determining a method for authentication of website material.   According to Judge Grimm, the rules that most likely to apply to establishing the authenticity of webpage data are: 901(b)(1), which calls for a witness with personal knowledge of the webpage; 9o1(b)(3), which calls for expert testimony as to workings of the website; 901(b)(4), which allows distinctive characteristics of the website and content to authenticate the material; 901(b)(7), which applies to public records–if the material comes from a government webpage, then it is public record and thus authentic; 901(b)(9) evidence that the systems and processes responsible for publishing web content produce a reliable result, and 902(5), which applies to official publications–if the material is recognized as web material from a valid source, it’s authentic.

Authenticating Messages & Chat Room Content:

The issues delineated above for authenticating websites also apply to instant messaging and chat room content: “…the fact that chat room messages are posted by third parties, often using ‘screen names’ means that it cannot be assumed that the content found in chat rooms was posted with the knowledge or authority of the website host” (SALTZBURG at § 901.02[12] as cited in Lorraine v. Markel, pp 43).    Thus the foundational requirements for establishing the authenticity of chats are as follows (Ibid):

• evidence that the individual in question used a particular screen name when chatting
• when arranging a meeting via chat using the screen name in question, the individual in question showed up for the meeting
• the individual in question identifies him- or herself as the person using the screen name in question
• evidence from the hard drive of the person’s computer showing use of the screen name

Drawing from a variety of cases, Grimm concludes that he “…the rules most likely to be used to authenticate chat room and text messages, alone or in combination, appear to be 901(b)(1) (witness with personal knowledge) and 901(b)(4) (circumstantial evidence of distinctive characteristics)” (In Re F.P. A Minor,878 A. 2d at 93-94 as cited in Lorraine v. Markel, p 43).  Once again, authentication here depends on personal knowledge presented by witnesses and the content of the documents (or text transcripts) themselves rather than any standard of metadata or means of storage and distribution.  The implication for preservation of this sort of material, then, is that care needs to be taken to determine that important contextual information about programs, content, and individuals involved needs to be saved alongside of the text and chat room content.

Authenticating Digital Photographs:

The single largest issue facing the authentication of digital photos is a fear that they can be more easily manipulated than traditional photos. According to Judge Grimm, “Digital photographs present unique authentication problems because they are a form of electronically produced evidence that may be manipulated and altered.  Indeed, unlike photographs made from film, digital photographs may be ‘enhanced'” (Lorraine v. Markel, pp 52-53.  Specifically items can be removed or added to images, or constituents of the photograph can be highlighted or enhanced–all quite easily through digital photographic editing software.  However, the fear of alteration is not unique to digital photography, even if it may be somewhat easier.  Therefore, the same procedures apply to authenticating both types of photograph.  Specifically, through witnesses who can either attest to the scene depicted, or explain processes of conversion and alteration of photographs through editing, whether analog or digital (Lorraine v. Markel, pp 53-54).  In the case of digital editing, Grimm cites a commentator who suggests an eight-step foundation process for establishing the authenticity of the digitized version of a film photo via a witness who (Lorraine v. Markel, pp 55):

1. is an expert in digital photography
2. can testify to the process for creating a digital photograph and explain how visual information is presented (e.g.density of pixles) as well has how a computer can manipulate this information
3. testifies to the validity of the process
4. can state that research into enhancement technology is adequate to support claims about the image
5. can testify that the software used to manipulate the photo was developed from sound research
6. has received a film photograph
7. digitized the film photograph using the proper process and then enhanced the digital copy using the correct procedure
8. can identify the trial exhibit as the product of the conversion and/or enhancement work s/he conducted

In Sum…

In sum, in all of the cases of electronic evidence discussed above, there is ample precedent for treating it as we would paper documentation, though the electronic nature of the documentation may require further steps to be taken to establish its authenticity.  Fortunately, the Federal Rules of Evidence that already exist can easily be extended to address the special issues related to electronic documentation.  However, the interesting point from an archiving and preservation perspective is that, though metadata can be very important in establishing the authenticity of a document, metadata alone are not enough.  The court still needs witnesses to attest to documentation types, practices, contents, and authorship.  Understanding this can help us think about the sorts of minimal standard data we might want to collect when cataloging and archiving electronic human rights material so that it can stand up to the test of the courts and serve as evidence in future cases.