Electronic Discovery Institute Course - Class 24: Evidence and Authentication
Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on July 8, 2018. Go to https://www.lawinstitute.org/ to sign up for it.
The course on Evidence and Authentication is taught by Anthony Lowe, associate general counsel for Freddie Mac; Wayne Matus, head of eDiscovery for UBS AG; Kevin Brady, of counsel with Redgrave LLP; and Judge Paul Grimm of the District of Maryland.
Electronic evidence has to be considered at the beginning of a case. One must consider the preservation of electronic evidence and the chain of custody for it. ESI, like any other form of evidence, will be reviewed as to whether or not it is relevant to the case. By its very nature ESI will be an out of court statement. IT people should conduct the preservation and collection of evidence.
Judge Grimm noted that there is much less discovery in criminal cases than in civil cases. However digital evidence is often involved in criminal cases, and criminal attorneys are often more prepared to handle it correctly. Attorneys who practice civil law often lack the experience of dealing with evidence during a trial.
Judge Grimm noted that FRE 901(a) says that you cannot offer evidence unless it is what it purports to be. Different types of electronic evidence will have to be authenticated in different ways. Email may be admitted as a business record, or as an admission. Either the text of a document or its metadata may be necessary for authentication.
Some types of evidence are self-authenticating, other require a witness and foundation. There are 10 methods of authentication under FRE 901(b). Rule 104(a), the preliminary determinations rule, also figures in the authentication process. FRE 901(b)(1) says that someone with personal knowledge of evidence can testify as to its authenticity. An expert under FRE 901(b)(3) can also authenticate evidence. Evidence can be authenticated under FRE 901(b)(9) if generated through a process capable of producing reliable results. FRE 902 addresses how evidence can be self-authenticating.
Generally, it's not necessary to authenticate email messages. Under Rule 104(a) the qualification of a witness may be questioned, and whether or not evidence is privileged can be challenged - the judge makes the determination. The judge will make most decisions on admission of evidence. Under Rule 104(b) the jury will decide on the relevance of evidence. Often when the jury does make such a determination, it is asked to rule on admissibility of electronic evidence.
Hearsay is an out of court statement that is offered to prove the truth of the matter asserted. The inherent nature of ESI causes 'fingerprints' to be generated showing how the evidence was stored. However electronic evidence may also be altered more easily than hard copy evidence. A prior witness statement; a prior consistent statement; and a statement of identification will not be considered hearsay. Business records, public records, and medical records may be exceptions to the hearsay rule.
Originals vs. Duplicates
The original writing rule states that either an original copy, or a exact duplicate must be offered into evidence.
The judge has to make a determination as to the probative value of a piece of evidence.
Qualifying an Expert Witness
Some judges may make the qualification of an expert witness more difficult than others. Some will require that an expert have the necessary knowledge to describe a particular subject to a jury.
Animation vs. Simulation
An animation is a graphic representation of event shown to a jury. A simulation is model based on algorithms to determine probabilities. The expert has to explain the simulation to the jury.
Technology & Evidence
Changing technology presents challenges for the preservation of electronic evidence. Young lawyers may be more accustomed to dealing with digital evidence.