Post Process

Everything to do with E-discovery & ESI

Case Blurb: Lorraine; Authentication of ESI by comparison under FRE 901(b)(3)

Posted by rjbiii on September 17, 2007

[Rule 901(b)(3)] allows authentication or identification by “[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated.”

  • Interestingly, the rule allows either expert opinion testimony to authenticate a questioned document by comparing it to one known to be authentic, or by permitting the factfinder to do so.
  • Obviously, the specimen used for the comparison with the document to be authenticated must be shown itself to be authentic.
  • This may be accomplished by any means allowable by Rule 901 or 902, as well as by using other exhibits already admitted into evidence at trial, or admitted into evidence by judicial notice under Rule 201.
  • Although the common law origin of Rule 901(b)(3) involved its use for authenticating handwriting or signatures, Fed. R. Evid . 901(b)(3) advisory committee’s note, it now is commonly used to authenticate documents, Weinstein at § 901.03[7][b], and at least one court has noted its appropriate use for authenticating e-mail. Safavian, 435 F.Supp.2d at 40 (E-mail messages “that are not clearly identifiable on their own can be authenticated … by comparison by the trier of fact (the jury) with ‘specimens which have been [otherwise] authenticated’– in this case, those e-mails that already have been independently authenticated under Rule 901(b)(4).”).

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

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