NEW FEDERAL RULES ON WAY FOR ADMISSION OF ELECTRONIC EVIDENCE
NEW FEDERAL RULES ON WAY FOR ADMISSION OF ELECTRONIC EVIDENCE
MIKE HAGBURG Attorney at Law
The United States Supreme Court has adopted amendments to the Federal Rules of Evidence related to the admission of electronic evidence . Pending approval by Congress , the amendments will take effect Dec . 1 .
Amendments to Federal Rule of Evidence 803 ( 16 ) on exceptions to the rule against hearsay change the time standard for statements in ancient documents . Previously , a statement in a document at least 20 years old , when authenticity of the document had been established , could not be excluded by the rule against hearsay . Under the amendment , the 20-year running timeline is eliminated and replaced by a set cutoff date of January 1 , 1998 .
The committee note to the rule explains that establishing a cutoff date was necessary because of the risk the ancient document exception could be used “ to admit vast amounts of unreliable electronically stored information .” The note indicates the use of electronically stored information has grown exponentially since 1998 and a showing of reliability should be required before such information can be admitted .
The amendment is not intended to bar admission of electronic evidence created since 1998 . The note points to Rule 803 ( 6 ), which covers records of a regularly conducted activity , as one hearsay exception under which electronic evidence produced since 1998 could be admitted . The note also cites Rule 807 , the residual exception , as a rule under which electronic documents might be admitted upon a showing of reliability .
As detailed in its May 2016 report , concerns about the admission of unreliable electronic evidence led the committee to first propose complete elimination of the ancient documents exception . Public comments , however , opposed this approach . The comments maintained the ancient documents exception was an important tool in certain types of litigation , such as disputes over the existence of insurance . The committee , therefore , decided to retain the exception , but establish an arbitrary cutoff date limiting its application .
While the amendments to Rule 803 may make admission of some electronic evidence more complicated , two amendments to Federal Rule of Evidence 902 on selfauthenticating evidence could smooth the way to admission of certain types of electronic material .
The amendments add a new paragraph 13 to Rule 902 that governs admission of certified records generated by an electronic system . Under this provision , “[ a ] record generated by an electronic process or system that produces an accurate result ” is selfauthenticating if the certification and notice requirements of Rule 902 ( 11 ) and ( 12 ) are fulfilled .
The committee note explains the intent of the new language is to provide a procedure for authentication of electronic record evidence by means other than witness testimony . The note warns the amendment extends only to establishing the grounds for authenticity . Evidence submitted under the provision may still be challenged on other grounds including hearsay or relevance .
In its May 2016 report , the committee discussed several situations in which the Rule 902 ( 13 ) could be used : proving a USB device was connected to a computer , proving a server was used to connect to a particular webpage , or proving a person was ( or was not ) near the scene of an event .
Also added to Rule 902 is a new paragraph 14 that will allow authentication of “[ d ] ata copied from an electronic device , storage medium , or file ” by certification of a qualified person . The committee note stresses the key element the person providing the certification must establish is the copied data submitted for admission is identical to the original . The note also indicates fulfillment of the Rule 902 ( 11 ) notice requirement is particularly important when copied data is submitted , because challenging authenticity of this evidence “ may require technical information about the system or process at issue , including possibly retaining a forensic technical expert .”
The Joint Procedure Committee will be discussing whether to amend the N . D . Rules of Evidence consistently with the federal changes . Comments on this issue are welcome and should be directed to Mike Hagburg , mhagburg @ ndcourts . gov .
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