A Look at the Recent Amendments to the Federal Rules of Evidence

Without question, the rise of digital media has revolutionized our world. It is currently estimated that Facebook has 1.5 billion daily users, and 2.3 monthly users. In any given minute, there are an estimated 347,222 people scrolling through Instagram, and Twitter has approximately 326 million monthly active users. The average amount of time spent daily by users in total on social media is 116 minutes[1]. It goes without saying then, that in that time, amongst all of those users, a significant amount of content is created each and every day. It’s no wonder then, that in addition to revolutionizing our daily life, the way we communicate with each other, the way we purchase our goods, and the way we conduct business, the rise of digital media is also revolutionizing the practice of law.

Understandably, with the rapid proliferation of digital evidence and social media in particular, questions have arisen as to what is required to properly authenticate social media evidence that is collected. As anyone who has used social media likely understands, without the right protections, digital files can be easily deleted, edited, altered, and or even fabricated entirely. Thus, without question, authentication is important. The question is, how best to do that? The goal of most attorneys we’ve spoken with is to provide the best possible service to their clients in the most efficient and effective way possible. And the truth of the matter is that is ultimately inefficient and ineffective to remain stuck in the past, using antiquated, costly, and unnecessary methods of preserving and authenticating social media evidence. Methods like taking and printing screenshots, calling in outside witnesses, and gathering affidavit after affidavit to attempt to prove authenticity are outdated, inefficient, and costly.

Increasingly, courts are recognizing that as evidence collection evolves, our understanding of best practices must evolve along with it. This recognition by the court highlights a truth that we at WebPreserver know to be true – the data is often able to speak for itself far better than a third party can. Upon recognition that digital evidence is here to stay, the Federal Rules of Evidence were amended effective December 1, 2017 to make it easier to authenticate data from electronic sources. These new rules describe a process for authenticating records “generated by an electronic process or system”.

More specifically, Rule 902 lists “items of evidence that are self-authenticating” and require “no extrinsic evidence of authenticity in order to be admitted.” The December 2017 amendments added two items to that list, particularly:

• Rule 902(13): This amendment provides for the self-authentication of: “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) ….”
• Rule 902(14): This amendment provides for self-authentication of: “Data copied form 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) …”

Such records include, for example, a printout from a webpage, or a document retrieved from files stored in a personal computer. The rules also provide for using a “process of digital identification” such as hash values to authenticate that electronic data is what it purports to be.

Thus, according to the American Bar Association,

When there is no dispute as to authenticity of ESI, 902(13) and (14) should help achieve the laudable goal of reducing the expense of litigation. Rather than present live testimony of a foundation witness, the proponent establishes authenticity under 902(13) and (14) by presenting a certification containing information that would be sufficient to establish authenticity if the information were provided by testimony at a hearing or trial [2].

This new allowance for self-authenticating evidence means that no longer will the introduction of social media evidence routinely require the testimony of a forensic or technical expert for purposes of authentication. Instead, this electronic evidence can now be certified through a written declaration by a “qualified person,” who attests that they verified the hash value of the proffered piece of electronic evidence and that it was identical to the original.

What does this mean for you, and for your practice from a practical standpoint? It’s a good question. By way of answer, we would ask you to imagine that you have a case heading to trial in a couple of months. Among your intended exhibits are several copies of Facebook pages with content that you believe will be extremely helpful to your client’s case. You know they need to be readily authenticated to be admitted, and you also know that the judge assigned to your case is fairly skeptical about digital evidence due to the fact that it can easily be altered or manipulated. If opposing counsel won’t stipulate that the web pages are authentic, what would you do? Prior to December of 2017, finding a witness to testify to the authenticity of the evidence would have likely been the choice most in keeping with what the evidentiary rules required. That is no longer true today.

With ever-increasing frequency, the outcome of civil and criminal trials will turn on digital evidence. These amendments effectively place the burden of going forward on questions of authenticity on the party who is opposing the evidence, which is good news for those who increasingly rely upon digital evidence to support their arguments. With a certification under 902(14), in theory, no live witness will need to be present for cross-examination at the hearing or the trial. The data and accompanying certification will, in essence, speak for itself. This is good news for attorneys who are trying to ensure that their practice keeps pace with the digital world.

Why WebPreserver

As a legal professional who cares about your clients and your reputation for professional excellence, we know that you want to support your cases and claims with the best evidence possible. This means that your evidence thoroughly organized, captured at the moment you need it, and sufficiently authenticated. After all, there’s no point in capturing and organizing evidence that can’t ultimately be admitted for its intended purpose.

With WebPreserver, the advantages are clear. When you use WebPreserver, you are using a product that generates forensic reports with a forensic SHA256 hash, and HTML source code. All of our captures include key identifying Metadata such as the timestamp, the URL, IP address, date, and time, using a certified Stratum-1 atomic clock in compliance with the eSign Act. You can capture what you need at the instant you need it, and know that when you do, you are capturing evidence that contains the needed hallmarks of authenticity which courts are increasingly seeking. It doesn’t matter how many affidavits you produce, or how much human testimony you have as to the authenticity of your evidence if the technology isn’t there to back it up.

When it comes to authenticating online evidence, the simple fact of the matter is this: there is no substitute for the truth of technology. With WebPreserver, all of the technology you need is at your fingertips. There is no need to manually collect metadata, no need to rely on an outdated and antiquated collection methods, or rely upon affidavits that may or may not hold up in court.

Call us today to discuss installing our Plug-in as soon as possible, so that you can begin gathering the evidence you need, in the format in which you need it. Don’t rely on a third party to do what you can do yourself. Capture evidence that is easy to access, and maintained in pristine, recognizable, and easily exportable formats. WebPreserver. It’s the smart choice. Make it today.

[1] https://www.zariance.com/reads/social-media-statistics/
[2] https://www.americanbar.org/groups/litigation/committees/trial-evidence/practice/2018/new-rules-electronic-evidence/