Post Process

Everything to do with E-discovery & ESI

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

Posted by rjbiii on September 23, 2007

“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.1998 ) ( “[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).

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