Post Process

Everything to do with E-discovery & ESI

Case Blurb: Lorraine; Use of Hash Values to Authenticate ESI under 901(b)(4)

Posted by rjbiii on September 17, 2007

One method of authenticating electronic evidence under Rule 901(b)(4) is the use of “hash values” or “hash marks” when making documents.

  • DEFINITION: A unique numerical identifier that can be assigned to a file, a group of files, or a portion of a file, based on a standard mathematical algorithm applied to the characteristics of the data set. The most commonly used algorithms, known as MD5 and SHA, will generate numerical values so distinctive that the chance that any two data sets will have the same hash value, no matter how similar they appear, is less than one in one billion. ‘Hashing’ is used to guarantee the authenticity of an original data set and can be used as a digital equivalent of the Bates stamp used in paper document production.
  • Hash values can be inserted into original electronic documents when they are created to provide them with distinctive characteristics that will permit their authentication under Rule 901(b)(4). Also, they can be used during discovery of electronic records to create a form of electronic “Bates stamp” that will help establish the document as electronic.
  • A party that seeks to introduce its own electronic records may have just as much difficulty authenticating them as one that attempts to introduce the electronic records of an adversary.
    • Because it is so common for multiple versions of electronic documents to exist, it sometimes is difficult to establish that the version that is offered into evidence is the “final” or legally operative version.
    • This can plague a party seeking to introduce a favorable version of its own electronic records, when the adverse party objects that it is not the legally operative version, given the production in discovery of multiple versions.
    • Use of hash values when creating the “final” or “legally operative” version of an electronic record can insert distinctive characteristics into it that allow its authentication under Rule 901(b)(4).

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

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