Post Process

Everything to do with E-discovery & ESI

Case Blurb: Lorraine; Authentication of ESI by distinctive characteristics

Posted by rjbiii on September 18, 2007

[Rule 901(b)(4)] is one of the most frequently used to authenticate e-mail and other electronic records. It permits exhibits to be authenticated or identified by “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

  • Use of this rule often is characterized as authentication solely by “circumstantial evidence.” Trend is that courts are looker harder at ESI in terms of relevance and authenticity.
  • Courts have recognized this rule as a means to authenticate ESI, including e-mail, text messages and the content of websites.
    • (Referencing United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir.2000) (allowing the authentication of an e-mail entirely by circumstantial evidence, including the presence of the defendant’s work e-mail address, content of which the defendant was familiar with, use of the defendant’s nickname, and testimony by witnesses that the defendant spoke to them about the subjects contained in the e-mail));
    • (Referencing Safavian, 435 F.Supp.2d at 40 (same result regarding e-mail);
    • (Referencing In Re F.P., a Minor, 878 A .2d at 94 (noting that authentication could be accomplished by direct evidence, circumstantial evidence, or both, but ultimately holding that transcripts of instant messaging conversation circumstantially were authenticated based on presence of defendant’s screen name, use of defendant’s first name, and content of threatening message, which other witnesses had corroborated));
    • (Referencing Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1153-54 (C.D.Cal.2002) (admitting website postings as evidence due to circumstantial indicia of authenticity, including dates and presence of identifying web addresses)).

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

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