Post Process

Everything to do with E-discovery & ESI

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

Posted by rjbiii on September 18, 2007

[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).

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