The Challenges in Admitting Computer Records as Evidence

Computer forensics expert Scott Ellis has written an article discussing the changes wrought by the digital age, and some of the barriers to admitting computer data as evidence in court. Mr. Ellis touches on authentication issues:

Recently, a friend forwarded an article published about a case ruling in which a routine e-mail exhibit was found inadmissible because of authenticity and hearsay issues. What we should take away from that ruling is electronically stored information (ESI), just like any other evidence, must clear standard evidentiary hurdles. Whenever ESI is offered as evidence, the following evidence rules must be considered.

An excellent opinion that doubles as a treatise on authentication was written by Judge Paul Grimm, in the case of Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007). The article continues on the subject.

Real evidence must be competent (authenticated), relevant and material. For example, a computer that was involved in a matter would be considered real evidence provided it hasn’t been changed, altered or accessed in a way that destroyed the evidence. The ability to use these items as evidence may be contingent on this and is why preservation of a computer or digital media must be done.

It is true that the manner in which data acquisition occurred can influence the ability to authenticate the evidence, and that a computer forensics expert would naturally focus on that aspect of authentication. We must add, though, that collection is but one part of leaping evidentiary hurdles, and much of the authentication process depends upon the type of digital evidence one is trying to get admitted. Again, read the Lorraine opinion, or look at the case blurbs from the opinion here on Post Process to get an idea how it all works.

Case Blurb: Lorraine; Authenticating digital photographs

Photographs have been authenticated for decades under Rule 901(b)(1) by the testimony of a witness familiar with the scene depicted in the photograph who testifies that the photograph fairly and accurately represents the scene.

Calling the photographer or offering exert testimony about how a camera works almost never has been required for traditional film photographs.

Today, however, the vast majority of photographs taken, and offered as exhibits at trial, are digital photographs, which are not made from film, but rather from images captured by a digital camera and loaded into a computer.

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.”

• Digital image “enhancement consists of removing, inserting, or highlighting an aspect of the photograph that the technician wants to change.”

Examples of enhancement:

• [S]uppose that in a civil case, a shadow on a 35 mm photograph obscures the name of the manufacturer of an offending product. The plaintiff might offer an enhanced image, magically stripping the shadow to reveal the defendant’s name.
• Or suppose that a critical issue is the visibility of a highway hazard. A civil defendant might offer an enhanced image of the stretch of highway to persuade the jury that the plaintiff should have perceived the danger ahead before reaching it.
• In many criminal trials, the prosecutor offers an ‘improved’, digitally enhanced image of fingerprints discovered at the crime scene. The digital image reveals incriminating points of similarity that the jury otherwise would never would have seen.

There are three distinct types of digital photographs that should be considered with respect to authentication analysis:

• original digital images,
• digitally converted images, and
• digitally enhanced images.

Original digital images

• An original digital photograph may be authenticated the same way as a film photo, by a witness with personal knowledge of the scene depicted who can testify that the photo fairly and accurately depicts it.
• If a question is raised about the reliability of digital photography in general, the court likely could take judicial notice of it under Rule 201.

Digitally Converted Images

• [A]uthentication requires an explanation of the process by which a film photograph was converted to digital format.
• This would require testimony about the process used to do the conversion, requiring a witness with personal knowledge that the conversion process produces accurate and reliable images, Rules 901(b)(1) and 901(b)(9)-the later rule implicating expert testimony under Rule 702.
• Alternatively, if there is a witness familiar with the scene depicted who can testify that the photo produced from the film when it was digitally converted, no testimony would be needed regarding the process of digital conversion.

Digitally Enhanced Images

• For digitally enhanced images, it is unlikely that there will be a witness who can testify how the original scene looked if, for example, a shadow was removed, or the colors were intensified. In such a case, there will need to be proof, permissible under Rule 901(b)(9), that the digital enhancement process produces reliable and accurate results, which gets into the realm of scientific or technical evidence under Rule 702.
• Recently, one state court has given particular scrutiny to how this should be done.
• In State v. Swinton, the defendant was convicted of murder in part based on evidence of computer enhanced images prepared using the Adobe Photoshop software. 847 A.2d 921, 950-52 (Conn.2004).
• The images showed a superimposition of the defendants teeth over digital photographs of bite marks taken from the victim’s body.
• At trial, the state called the forensic odontologist (bite mark expert) to testify that the defendant was the source of the bite marks on the defendant.
• However, the defendant testified that he was not familiar with how the Adobe Photoshop made the overlay photographs, which involved a multi-step process in which a wax mold of the defendant’s teeth was digitally photographed and scanned into the computer to then be superimposed on the photo of the victim.
• The trial court admitted the exhibits over objection, but the state appellate court reversed, finding that the defendant had not been afforded a chance to challenge the scientific or technical process by which the exhibits had been prepared.
• The court stated that to authenticate the exhibits would require a sponsoring witness who could testify, adequately and truthfully, as to exactly what the jury was looking at, and the defendant had a right to cross-examine the witness concerning the evidence.
• Because the witness called by the state to authenticate the exhibits lacked the computer expertise to do so, the defendant was deprived of the right to cross examine him.

Because the process of computer enhancement involves a scientific or technical process, one commentator has suggested the following foundation as a means to authenticate digitally enhanced photographs under Rule 901(b)(9):

1. The witness is an expert in digital photography;
2. the witness testifies as to image enhancement technology, including the creation of the digital image consisting of pixels and the process by which the computer manipulates them;
3. the witness testifies that the processes used are valid;
4. the witness testifies that there has been “adequate research into the specific application of image enhancement technology involved in the case”;
5. the witness testifies that the software used was developed from the research;
6. the witness received a film photograph;
7. the witness digitized the film photograph using the proper procedure, then used the proper procedure to enhance the film photograph in the computer;
8. the witness can identify the trial exhibit as the product of the enchantment process he or she performed.

The author recognized that this is an “extensive foundation,” and whether it will be adopted by courts in the future remains to be seen. Id. However, it is probable that courts will require authentication of digitally enhanced photographs by adequate testimony that it is the product of a system or process that produces accurate and reliable results. Fed.R.Evid. 901(b)(9).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; Authenticating Computer Aminations and Computer Simulations

Computer Animation

Defined: “the display of a sequence of computer-generated images.”

The attraction of this form of evidence is irresistible, because:

• [W]hen there is no movie or video of the event being litigated, a computer animation is a superior method of communicating the relevant information to the trier of fact. Absent a movie or video, the proponent might have to rely on static charts or oral testimony to convey a large amount of complex information to the trier of fact.
• When the proponent relies solely on oral expert testimony, the details may be presented one at a time; but an animation can piece all the details together for the jury. A computer animation in effect condenses the information into a single evidentiary package.
• In part due to television, the typical American is a primarily visual learner; and for that reason, in the short term, many jurors find the animation more understandable than charts or oral testimony. Use of an animation can also significantly increase long-term juror retention of the information.

Computer Simulations

The distinction between animation and simulation has been explained usefully as follows:

• Computer generated evidence is an increasingly common form of demonstrative evidence. If the purpose of the computer evidence is to illustrate and explain a witness’s testimony, courts usually refer to the evidence as an animation. In contrast, a simulation is based on scientific or physical principles and data entered into a computer, which is programmed to analyze the data and draw a conclusion from it, and courts generally require proof to show the validity of the science before the simulation evidence is admitted
• Thus, the classification of a computer-generated exhibit as a simulation or an animation also affects the evidentiary foundation required for its admission.

Courts generally have allowed the admission of computer animations if authenticated by testimony of a witness with personal knowledge of the content of the animation, upon a showing that it fairly and adequately portrays the facts and that it will help to illustrate the testimony given in the case. This usually is the sponsoring witness.

Computer simulations are treated as a form of scientific evidence, offered for a substantive, rather than demonstrative purpose.

The case most often cited with regard to the foundational requirements needed to authenticate a computer simulation is Commercial Union v. Boston Edison, where the court stated:

The function of computer programs like TRACE ‘is to perform rapidly and accurately an extensive series of computations not readily accomplished without use of a computer.’ We permit experts to base their testimony on calculations performed by hand. There is no reason to prevent them from performing the same calculations, with far greater rapidity and accuracy, on a computer. Therefore … we treat computer-generated models or simulations like other scientific tests, and condition admissibility on a sufficient showing that:

1. the computer is functioning properly;
2. the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party, so that they may challenge them); and
3. the program is generally accepted by the appropriate community of scientists.

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; How to authenticate Computer Stored Records and Data

“Many kinds of computer records and computer- generated information are introduced as real evidence or used as litigation aids at trials. They range from computer printouts of stored digital data to complex computer-generated models performing complicated computations. Each may raise different admissibility issues concerning authentication and other foundational requirements.”

Documents merely stored on a computer.

• The least complex admissibility issues are associated with electronically stored records.
• “In general, electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues.”
• That said, although computer records are the easiest to authenticate, there is growing recognition that more care is required to authenticate these electronic records than traditional “hard copy” records.
• Manual for Complex Litigation
• Computerized data, however, raise unique issues concerning accuracy and authenticity. Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunctions.
• The integrity of data may also be compromised in the course of discovery by improper search and retrieval techniques, data conversion, or mishandling.
• The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy.
• The judge should therefore consider the accuracy and reliability of computerized evidence…
• IMWINKELRIED, EVIDENTIARY FOUNDATIONS at 4.03[2].
• “In the past, many courts have been lax in applying the authentication requirement to computer records; they have been content with foundational evidence that the business has successfully used the computer system in question and that the witness recognizes the record as output from the computer.
• However, following the recommendations of the Federal Judicial Center’s Manual for Complex Litigation, some courts now require more extensive foundation.
• These courts require the proponent to authenticate a computer record by proving the reliability of the particular computer used, the dependability of the business’s input procedures for the computer, the use of proper procedures to obtain the document offered in court, and the witness’s recognition of that document as the readout from the computer.” (citation omitted).
• Two approaches: Lenient vs. Strict
• Lenient
• In United States v. Meienberg, the defendant challenged on appeal the admission into evidence of printouts of computerized records of the Colorado Bureau of Investigation, arguing that they had not been authenticated because the government had failed to introduce any evidence to demonstrate the accuracy of the records. 263 F.3d at 1180-81. The Tenth Circuit disagreed, stating:
• Any question as to the accuracy of the printouts, whether resulting from incorrect data entry or the operation of the computer program, as with inaccuracies in any other type of business records, would have affected only the weight of the printouts, not their admissibility.
• (References Kassimu, 2006 WL 1880335 (To authenticate computer records as business records did not require the maker, or even a custodian of the record, only a witness qualified to explain the record keeping system of the organization to confirm that the requirements of Rule 803(6) had been met, and the inability of a witness to attest to the accuracy of the information entered into the computer did not preclude admissibility));
• References Sea Land v. Lozen Int’l, 285 F.3d 808 (9th Cir.2002) (ruling that trial court properly considered electronically generated bill of lading as an exhibit to a summary judgment motion. The only foundation that was required was that the record was produced from the same electronic information that was generated contemporaneously when the parties entered into their contact. The court did not require evidence that the records were reliable or accurate)).
• Strict
• [I]n the case of In Re Vee Vinhnee, the bankruptcy appellate panel upheld the trial ruling of a bankruptcy judge excluding electronic business records of the credit card issuer of a Chapter 7 debtor, for failing to authenticate them. 336 B.R. 437.
• The court noted that “it is becoming recognized that early versions of computer foundations were too cursory, even though the basic elements covered the ground.” Id. at 445-46. The court further observed that:
• The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created…. Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.
• The court reasoned that, for paperless electronic records:
• The logical questions extend beyond the identification of the particular computer equipment and programs used. The entity’s policies and procedures for the use of the equipment, database, and programs are important. How access to the pertinent database is controlled and, separately, how access to the specific program is controlled are important questions. How changes in the database are logged or recorded, as well as the structure and implementation of backup systems and audit procedures for assuring the continuing integrity of the database, are pertinent to the question of whether records have been changed since their creation.
• In order to meet the heightened demands for authenticating electronic business records, the court adopted, with some modification, an eleven-step foundation proposed by Professor Edward Imwinkelried.
• Professor Imwinkelried perceives electronic records as a form of scientific evidence and discerns an eleven-step foundation for computer records:
1. The business uses a computer.
2. The computer is reliable.
3. The business has developed a procedure for inserting data into the computer.
4. The procedure has built-in safeguards to ensure accuracy and identify errors.
5. . The business keeps the computer in a good state of repair.
6. The witness had the computer readout certain data.
7. The witness used the proper procedures to obtain the readout.
8. The computer was in working order at the time the witness obtained the readout.
9. The witness recognizes the exhibit as the readout.
10. The witness explains how he or she recognizes the readout.
11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.
• Although the position taken by the court in In Re Vee Vinhnee appears to be the most demanding requirement for authenticating computer stored records, other courts also have recognized a need to demonstrate the accuracy of these records.
• (References State v. Dunn, 7 S.W.3d 427, 432 (Mo.Ct.App.2000) (Admissibility of computer-generated records “should be determined on the basis of the reliability and accuracy of the process involved.”));
• (References State v. Hall, 976 S.W.2d 121, 147 (Tenn.199 ( “[T]he admissibility of the computer tracing system record should be measured by the reliability of the system, itself, relative to its proper functioning and accuracy.”)).
• In addition to their insight regarding the authentication of electronic records, these cases are also important in connection to the analysis of whether certain types of electronically stored records constitute hearsay when offered for their substantive truth.
• Court’s statement on the trend, and counsel’s responsibilities:
• As the foregoing cases illustrate, there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed. Further, it would not be surprising to find that, to date, more courts have tended towards the lenient rather than the demanding approach. However, it also is plain that commentators and courts increasingly recognize the special characteristics of electronically stored records, and there appears to be a growing awareness, as expressed in the Manual for Complex Litigation, that courts “should … consider the accuracy and reliability of computerized evidence” in ruling on its admissibility. Lawyers can expect to encounter judges in both camps, and in the absence of controlling precedent in the court where an action is pending setting forth the foundational requirements for computer records, there is uncertainty about which approach will be required. Further, although “it may be better to be lucky than good,” as the saying goes, counsel would be wise not to test their luck unnecessarily. If it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied. If less is required, then luck was with you.
• The methods of authentication most likely to be appropriate for computerized records are:
• 901(b)(1) (witness with personal knowledge),
• 901(b)(3) (expert testimony),
• 901(b)(4) (distinctive characteristics), and
• 901(b)(9) (system or process capable of producing a reliable result).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; Authenticating Text Messages and Chat Room Content

Many of the same foundational issues found encountered when authenticating website evidence apply with equal force to text messages and internet chat room content; however, 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.

One commentator has suggested that the following foundational requirements must be met to authenticate chat room evidence:

1. [e]vidence that the individual used the screen name in question when participating in chat room conversations (either generally or at the site in question);
2. [e]vidence that, when a meeting with the person using the screen name was arranged, the individual … showed up;
3. [e]vidence that the person using the screen name identified [himself] as the [person in the chat room conversation];
4. evidence that the individual had in [his] possession information given to the person using the screen name;
5. [and][e]vidence from the hard drive of the individual’s computer [showing use of the same screen name].

Courts also have recognized that exhibits of chat room conversations may be authenticated circumstantially.

• (References In Re F.P., A Minor, in which the defendant argued that the testimony of the internet service provider was required, or that of a forensic expert. 878 A.2d at 93- 94). The court held that circumstantial evidence, such as the use of the defendant’s screen name in the text message, the use of the defendant’s first name, and the subject matter of the messages all could authenticate the transcripts.
• (References United States v. Simpson, the court held that there was ample circumstantial evidence to authenticate printouts of the content of chat room discussions between the defendant and an undercover detective, including use of the e-mail name of the defendant, the presence of the defendant’s correct address in the messages, and notes seized at the defendant’s home containing the address, e-mail address and telephone number given by the undercover officer. 152 F.3d at 1249).
• (References United States v. Tank, the court found sufficient circumstantial facts to authenticate chat room conversations, despite the fact that certain portions of the text of the messages in which the defendant had participated had been deleted. 200 F.3d at 629-31). There, the court found the testimony regarding the limited nature of the deletions by the member of the chat room club who had made the deletions, circumstantial evidence connecting the defendant to the chat room, including the use of the defendant’s screen name in the messages, were sufficient to authenticate the messages.

Based on the foregoing cases, 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).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; Authenticating Internet Website Postings

[Courts' previous] reaction[s] ha[ve] ranged from the famous skepticism expressed in St. Clair v. Johnny’s Oyster and Shrimp, Inc., 76 F.Supp.2d 773 (S.D.Tex.1999):

• There, the court stated that, Plaintiff’s electronic ‘evidence’ is totally insufficient to withstand Defendant’s Motion to Dismiss. While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant’s Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed.R.Evid. 807. Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form from the United States Coast Guard or discover alternative information verifying what Plaintiff alleges.

to the more permissive approach taken in Perfect 10, 213 F.Supp.2d at 1153-54.

• The court noted that a “reduced evidentiary standard” applied to the authentication of exhibits purporting to depict the defendant’s website postings during a preliminary injunction motion. The court found that the exhibits had been authenticated because of circumstantial indicia of authenticity, a failure of the defendant to deny their authenticity, and the fact that the exhibits had been produced in discovery by the defendant. The court declined to require proof that the postings had been done by the defendant or with its authority, or evidence to disprove the possibility that the contents had been altered by third parties.

The issues that have concerned courts include the possibility that third persons other than the sponsor of the website were responsible for the content of the postings, leading many to require proof by the proponent that the organization hosting the website actually posted the statements or authorized their posting.

• (References United States v. Jackson, 208 F.3d 633, 638 (7th Cir.2000) (excluding evidence of website postings because proponent failed to show that sponsoring organization actually posted the statements, as opposed to a third party));
• St. Luke’s, 2006 WL 1320242 (plaintiff failed to authenticate exhibits of defendant’s website postings because affidavits used to authenticate the exhibits were factually inaccurate and the author lacked personal knowledge of the website);

One commentator has observed “[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?

The same author suggests that the following factors will influence courts in ruling whether to admit evidence of internet postings:

• The length of time the data was posted on the site;
• whether others report having seen it;
• whether it remains on the website for the court to verify;
• whether the data is of a type ordinarily posted on that website or websites of similar entities (e.g. financial information from corporations);
• whether the owner of the site has elsewhere published the same data, in whole or in part;
• whether others have published the same data, in whole or in part;
• whether the data has been republished by others who identify the source of the data as the website in question?

The authentication rules most likely to apply, singly or in combination, are:

• 901(b)(1) (witness with personal knowledge),
• 901(b)(3) (expert testimony),
• 901(b)(4) (distinctive characteristics),
• 901(b)(7) (public records),
• 901(b)(9) (system or process capable of producing a reliable result), and
• 902(5) (official publications).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; How to Authenticate E-mail

Although courts today have more or less resigned themselves to the fact that “[w]e live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world,” Safavian, 435 F.Supp.2d at 41, it was not very long ago that they took a contrary view–”[e]-mail is far less of a systematic business activity than a monthly inventory printout.”

• (References Monotype Corp. PLC v. Int’l Typeface, 43 F.3d 443, 450 (9th Cir .2004) (affirming trial court’s exclusion of e-mail as inadmissible as a business record)).

Perhaps because of the spontaneity and informality of e-mail, people tend to reveal more of themselves, for better or worse, than in other more deliberative forms of written communication. For that reason, e-mail evidence often figures prominently in cases where state of mind, motive and intent must be proved. Indeed, it is not unusual to see a case consisting almost entirely of e-mail evidence.

[E]-mail messages may be authenticated by direct or circumstantial evidence. An e-mail message’s distinctive characteristics, including its “contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances” may be sufficient for authentication.

Printouts of e-mail messages ordinarily bear the sender’s e-mail address, providing circumstantial evidence that the message was transmitted by the person identified in the e-mail address. In responding to an e-mail message, the person receiving the message may transmit the reply using the computer’s reply function, which automatically routes the message to the address from which the original message came. Use of the reply function indicates that the reply message was sent to the sender’s listed e-mail address.

The contents of the e-mail may help show authentication by revealing details known only to the sender and the person receiving the message.

E-mails may even be self-authenticating.

• Under Rule 902(7), labels or tags affixed in the course of business require no authentication. Business e-mails often contain information showing the origin of the transmission and identifying the employer-company. The identification marker alone may be sufficient to authenticate an e-mail under Rule 902(7).
• However, the sending address in an e-mail message is not conclusive, since e-mail messages can be sent by persons other than the named sender. For example, a person with unauthorized access to a computer can transmit e-mail messages under the computer owner’s name. Because of the potential for unauthorized transmission of e-mail messages, authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness.

(References Siddiqui, 235 F.3d at 1322- 23 (E-mail may be authenticated entirely by circumstantial evidence, including its distinctive characteristics));

(References Safavian, 435 F.Supp.2d at 40 (recognizing that e-mail may be authenticated by distinctive characteristics (901(b)(4), or by comparison of exemplars with other e-mails that already have been authenticated (901(b)(3)));

(References Rambus, 348 F.Supp.2d 698 (E-mail that qualifies as business record may be self-authenticating under 902(11)));

(References In Re F.P., A Minor, 878 A.2d at 94 (E-mail may be authenticated by direct or circumstantial evidence)).

The most common ways to authenticate e-mail evidence are:

• 901(b)(1) (person with personal knowledge),
• 901(b)(3) (expert testimony or comparison with authenticated exemplar),
• 901(b)(4) (distinctive characteristics, including circumstantial evidence),
• 902(7) (trade inscriptions), and
• 902(11) (certified copies of business record).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Case Blurb: Lorraine; Consequences of Counsel’s lack of diligence with respect to articulating all grounds for admitting ESI

Establishing that ESI has some relevance generally is not hard for counsel. Articulating all of what may be multiple grounds of relevance is something that is important, though not as frequently done as it should be. Accordingly, evidence that might otherwise be admitted may be excluded because the proponent put all his or her eggs in a single evidentiary basket, which the trial judge views as inapplicable, instead of carefully identifying each potential basis for admissibility. Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Ironically, however, counsel often fail to meet even this minimal showing when attempting to introduce ESI, which underscores the need to pay careful attention to this requirement. Id.

Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation. Id.

Case Blurb: Lorraine; Authenticating ESI under FRE 901(b)(9)–description of a system or process

Rule 901(b)(9) recognizes one method of authentication that is particularly useful in authenticating electronic evidence stored in or generated by computers.

It authorizes authentication by “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”

This rule was “designed for situations in which the accuracy of a result is dependent upon a process or system which produces it.”

• (References In Re Vee Vinhnee, 336 B.R. at 446 (”Rule 901(b)(9), which is designated as an example of a satisfactory authentication, describes the appropriate authentication for results of a process or system and contemplates evidence describing the process or system used to achieve a result and demonstration that the result is accurate. The advisory committee note makes plain that Rule 901(b)(9) was designed to encompass computer-generated evidence …”)).
• (References Weinstein at § 901.12[3] (”Computer output may be authenticated under Rule 901(b)(9)…. When the proponent relies on the provisions of Rule 901(b)(9) instead of qualifying the computer-generated information for a hearsay exception, it is common for the proponent to provide evidence of the input procedures and their accuracy, and evidence that the computer was regularly tested for programming errors. At a minimum, the proponent should present evidence sufficient to warrant a finding that the information is trustworthy and provide the opponent with an opportunity to inquire into the accuracy of the computer and of the input procedures.”)).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007)

Case Blurb: Lorraine; Authenticating ESI under 901(b)(7) as public records or reports

[Rule 901(b)(7)] permits authentication by: 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.

The commentary to Rule 901(b)(7) recognizes that it applies to computerized public records, noting that “[p]ublic records are regularly authenticated by proof of custody, without more.

[Rule 901(b)(7) ] extends the principle to include data stored in computers and similar methods, of which increasing use in the public records area may be expected.”

To use this rule the “proponent of the evidence need only show that the office from which the records were taken is the legal custodian of the records.” This may be done by:

• “A certificate of authenticity from the public office;
• [t]he testimony of an officer who is authorized to attest to custodianship, [or] the testimony of a witness with knowledge that the evidence is in fact from a public office authorized to keep such a record.”

Courts have recognized the appropriateness of authenticating computer stored public records under Rule 901(b)(7) as well, and observed that under this rule, unlike Rule 901(b)(9), there is no need to show that the computer system producing the public records was reliable or the records accurate.

For example, in United States v. Meienberg, the court rejected defendant’s challenge to the admissibility of a law enforcement agency’s computerized records. Defendant argued that the only way they could be authenticated was under Rule 901(b)(9), through proof that they were produced by a system or process capable of producing a reliable result. Defendant further argued that the records had not been shown to be accurate. The appellate court disagreed, holding that the records properly had been authenticated under Rule 901(b)(7), which did not require a showing of accuracy. The court noted that any question regarding the accuracy of the records went to weight rather than admissibility. 263 F.3d at 1181.

Thus, a decision to authenticate under Rule 901(b)(7), as opposed to 901(b)(9) may mean that the required foundation is much easier to prove. This underscores the importance of the point previously made, that there may be multiple ways to authenticate a particular computerized record, and careful attention to all the possibilities may reveal a method that significantly eases the burden of authentication.

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).