E-discovery that is, the discovery of electronically

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1 E-Discovery Without Admissibility Is Useless: Lorraine v. Markel and Authentication By Jeffrey D. Bukowski E-discovery that is, the discovery of electronically stored information has garnered much attention since the Federal Rules of Civil Procedure were recently amended. In December 2006, the Federal Rules expressly recognized that the discovery rules apply to electronically stored information. The use of electronic information in America continues to grow, and busy trial lawyers are bombarded with solicitations from e-discovery consultants and technicians. Yet compared to the massive size of the e-discovery industry, there is little guidance for litigators concerning the legal requirements for admitting electronic evidence at trial, or the use of electronic evidence in motion practice, particularly in dispositive motions. It is important for trial lawyers to understand the key hurdles to the admissibility of electronic evidence. After all, there is no point in mastering the nuances of the Federal Rules of Civil Procedure relating to e discovery, or engaging expensive vendors to retrieve electronically stored information, if at the end of the day the electronic evidence is excluded from consideration. This article focuses, then, on the authentication of electronic evidence. Admissibility of Electronic Evidence At the outset, it is important to understand that the Federal Rules of Evidence (and their state law counterparts) apply equally to electronically stored information and to paper documents and other types of evidence. 1 Thus far, courts have rejected arguments to abandon the existing rules as a framework for deciding the admissibility of electronic evidence. 2 Accordingly, the admissibility of electronic evidence cannot be taken for granted. As the important federal decision Lorraine v. Markel makes clear, it is not necessarily sufficient simply to attach an or some other electronically created or stored document as an exhibit to a motion for the court to consider it, even when the opposing party does not object to its admissibility. 3 Although the Lorraine decision is now over a year old, it highlights problems associated with the admissibility of electronically stored information and provides helpful practical guidance for trial lawyers practicing in federal court. As Judge Grimm points out in Lorraine, Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence. 4 Authenticating Electronic Evidence Judge Grimm begins his legal analysis in Lorraine by recognizing that electronically stored information implicates the following Federal Rules of Evidence: Rules 104, 401, 403, 801, , , , and This article focuses on Rules 901 and 902, which govern the authentication of electronic evidence. Authentication is a condition precedent to admissibility that can be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 6 According to Lorraine: The authentication requirements of Rule 901 are designed to set up a threshold preliminary standard to test the reliability of evidence, subject to later review by an opponent s cross-examination.... Determining what degree of foundation is appropriate in any given case is in the judgment of the court. The required foundation will vary not only with the particular circumstances but also with the individual judge. 7 Judge Grimm s Lorraine analysis of authenticating the various forms, or flavors, of electronically stored information is the most helpful and, at the same time, the scariest portion of his opinion, for authentication is the evidentiary hurdle most likely to be taken for granted by trial lawyers and courts alike. It can be impossible to cure defects in the authentication of potential trial exhibits without significant advance planning that begins as early as the discovery process. As Judge Grimm observed, although the authenticity hurdle is not very high, counsel often stumble when attempting to introduce electronically stored information. 8 Indeed, the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury that can be avoided by thoughtful advance preparation. 9 Case law provides numerous exam- Published in Proof, Volume 17, Number 1, Fall by the American Bar Association. Reproduced with permission. All rights reserved. This

2 E-Discovery Without Admissibility Is Useless Jeffrey D. Bukowski Jeffrey D. Bukowski is with Stevens & Lee, P.C. in Harrisburg, Pennsylvania. ples of such self-inflicted injuries. 10 Avoiding this fate requires trial lawyers to do advance planning to ensure that they can satisfy the requirements for authenticating both paper and electronic evidence in the applicable jurisdiction. Federal Rule of Evidence 901(a) sets forth the requirement for authenticating electronically stored evidence, but it does not explain exactly how this requirement is to be satisfied. Rule 901(b) identifies 10 specific nonexclusive examples of methods for authenticating evidence. In addition, Federal Rule of Evidence 902 identifies 12 methods by which electronic evidence may be self-authenticated, meaning that extrinsic evidence is not necessary. 11 Using the examples provided in Rule 901(b), a trial lawyer can authenticate commonly encountered forms of electronic evidence, such as s, Internet or website pages or postings, instant messages, chat-room conversations, and other electronically stored data. Judge Grimm explains how Rules 901(b)(1), 901(b)(3), 901(b)(4), 901(b)(7), and 901(b)(9) might apply in one way or another to forms of electronic evidence. In what follows, we track his analysis of these rules. Rule 901(b)(1): Testimony of Person with Knowledge Federal Rule of Evidence 901(b)(1) permits authentication by [t]estimony that a matter is what it is claimed to be. This rule contemplates a broad spectrum including testimony of a witness who was present at the signing of a document Courts considering the admissibility of electronic evidence frequently have acknowledged that it may be authenticated by a witness with personal knowledge. 13 Rule 901(b)(1) allows a party to authenticate evidence by offering testimony that it is what it is claimed to be. Although offering testimony from a witness with knowledge under Rule 901(b) (1) is available to authenticate virtually all types of electronic evidence, it is particularly useful in authenticating messages. Authenticating an would be done the same way as authenticating a letter. The easiest way to authenticate an message or other electronic communication is to have its author testify that he or she prepared and sent it. An authenticating witness may not, however, provide boilerplate, conclusory statements that simply parrot the elements of the business record or public record exceptions to the hearsay rule. 14 Where such primary testimony is unavailable, an authenticating witness may be someone who merely has general personal knowledge of how that type of exhibit is routinely made. 15 In this event, the authenticating witness must nevertheless provide factually specific information about the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change, or the process by which it is produced if its production is the result of a system or process. 16 Using a witness with knowledge to authenticate Internet website postings is not as easy as it might sound, and how it must be done will vary from court to court. One court has colorfully expressed its skepticism regarding authenticity of information obtained from Internet website postings by characterizing the Internet as one large catalyst for rumor, innuendo, and misinformation that is inherently untrustworthy and any evidence procured from the Internet as adequate for almost nothing and voodoo information. 17 Some courts have required a proponent of electronic evidence to offer testimony from a website s owner to authenticate postings from that website. 18 Other courts have imposed similar requirements. 19 Yet other courts have admitted printouts and postings from websites without requiring testimony from the website s owner, relying instead on testimony or an affidavit from a witness who personally visited a website and printed out the proffered evidence from it. 20 During discovery, trial lawyers should investigate the authentication requirements of the court in which their case is pending and plan accordingly. If the answer is unclear, the prudent course is to plan to meet the most demanding test or to pursue alternatives. When a witness with knowledge sufficient to satisfy a particular court s authentication requirements is unavailable, bear in mind that there are other available means of authentication. Rule 901(b)(3): Comparison with Specimens Already Authenticated Federal Rule of Evidence 901(b)(3) allows authentication via [c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated. At least one court has deemed this rule to be appropriate for authenticating Rule 901(b)(4): Circumstantial Evidence Federal Rule of Evidence 901(b)(4) permits authentication by [a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances. An may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him. 22 Likewise, an may be authenticated by content and circumstances indicating it was in reply to a duly authenticated one. 23 Additionally, a party may be able to use an 14 Published proof in Proof, FALL Volume , Number 1, Fall by the American Bar Association. Reproduced with permission. All rights reserved. This

3 s metadata to authenticate the Metadata (data about data), includes all the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records, and includes the file name, location (e.g., directory structure or pathname), file format or type, file size, file dates (e.g., creation date, last modification date), as well as usergenerated inputs such as subject and addressing. 25 The parties in cases such as United States v. Standring and Perfect 10, Incorporated v. Cybernet Adventures, Incorporated relied on printed web pages containing the Internet domain address from which they were printed and their print date to authenticate the electronic evidence at issue pursuant to Rule 901(b)(4). 26 Rule 901(b)(7): Public Records Federal Rule of Evidence 901(b)(7) applies to public records and allows authentication by [e]vidence 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. According to Lorraine, to use this rule, a proponent of electronically stored evidence need only show that the office from which the records were taken is the legal custodian of the records. 27 This showing may be made via a certificate of authenticity from the public office, the 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. 28 Records that can be authenticated under Rule 901(b)(7) include: tax returns; weather-bureau records; military records; social-security records; Immigration and Naturalization Service records; Veterans Administration records; official records from other federal, state, and local agencies; judicial records; correctional records; law enforcement records; and data compilations, which may include computer stored records. 29 Rule 901(b)(9): Evidence Produced as a Result of Accurate Process or System Federal Rule of Evidence 901(b)(9) authorizes authentication by evidence describing a process or system used to produce a result and showing that the process of system produces an accurate result. This method is particularly useful for authenticating electronic evidence stored in or generated automatically by computers, and its applicability to computer-generated evidence is recognized by the rules advisory committee notes. 30 At least one court has cited with approval an eleven-step foundational authentication for computer records. 31 Rule 902: Self-Authentication In addition to the nonexclusive methods of authentication identified in Rule 901(b), Federal Rule of Evidence 902 identifies 12 methods by which documents, including electronic ones, may be authenticated without extrinsic evidence. 32 Documents authenticated under Rule 902 are considered to be self-authenticating. Although all of the examples contained in Rule 902 could apply to computerized records, three in particular have been recognized by the courts to authenticate electronic evidence: 902(5) (official publications); 902(7) (trade inscriptions); and 902(11) (certified domestic records of regularly conducted activity). 33 Rule 902(5): Official Publications Federal Rule of Evidence 902(5) applies to [b]ooks, pamphlets, or other publications purporting to be issued by public authority. This rule eliminates the need for preliminary proof of the genuineness of purportedly official publications... [but] does not confer admissibility upon all official publications; it merely provides a means whereby their authenticity may be taken as established for purposes of admissibility. 34 Thus, to admit documents pursuant to this rule, a proponent may also need to proffer the evidence, or a supporting document, as an official record that satisfies the hearsay exception of Rule 803(8). 35 Combining the evidence used to satisfy both Rule 902(5) and Rule 803(8) should provide a relatively easy means for admitting relevant official publications from government agencies. 36 Rule 902(7): Inscriptions, Signs, Tags, or Labels Indicating Ownership Federal Rule of Evidence 902(7) allows exhibits to be self-authenticated by [i]nscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. Labels or tags affixed in the course of business require no authentication. Business s often contain information showing the origin of the transmission and identifying the company from which they came. Significantly, this identification marker alone may be sufficient to authenticate an message under Rule 902(7). 37 Rule 902(11): Record of Regularly Conducted Business Federal Rule of Evidence 902(11) is useful because it affords a means of authenticating business records under Rule 803(6) without the need for a witness to testify in person at trial. 38 Because compliance with Rule 902(11) requires the pro- Published in Proof, Volume 17, Number 1, Fall by the American Bar Association. Reproduced with permission. FALL All 2008 rights reserved. proof This 15

4 During discovery, trial lawyers should investigate the authentication requirements of the court in which their case is pending and plan accordingly. ponent to establish all of the elements of the business-records exception to the hearsay rule, Rule 803(6), courts usually analyze the authenticity issue under Rule 902(11) concomitantly with the business-records exception. 39 As explained previously, Rule 901(b) makes clear that its 10 enumerated examples are illustrative only, and not exhaustive. Consequently, trial lawyers should think creatively for new ways of authenticating electronic evidence to fit the unique circumstances of their case, so long as the facts support the conclusion that the proffered evidence is reliable, accurate, and authentic. For example, in one case, a court admitted electronic evidence based on the fact that the documents were produced to the proponent during discovery and were therefore assumed to be authentic, shifting the burden to the producing party to demonstrate the evidence it produced was not authentic. 40 In another case, the court admitted content from a defendant s website from various dates in the past based on the affidavit from a company representative who retrieved copies of defendant s website as it appeared in a maintained Internet archive of web pages. 41 Conclusion By periodically reviewing the requirements for admissibility of electronic and other evidence, including authentication, and by planning ahead during discovery to make certain that those requirements can be satisfied, trial lawyers can avoid the self-inflicted injuries described by Judge Grimm in Lorraine. By doing so, we give ourselves and our clients the best chance of ensuring the admissibility of the electronic and other evidence we have laboriously gathered during discovery, thereby supporting our clients position both at trial and in dispositive motion practice. 42 Endnotes 1. Lorraine v. Markel, 241 F.R.D. 534, 538 n.5 (D. Md. 2007); see also In re F.P., 878 A.2d 91, 95 (Pa. Super. Ct. 2005) ( We believe that messages and similar forms of electronic communications can be properly authenticated within the existing framework of [the state rules of evidence]. ); Manual for Complex Litigation (4th ed. 2004); Jack B. Weinstein & Margaret Berger, Weinstein s federal Evidence (2d ed. 2007). 2. Lorraine, 241 F.R.D. at (citing In re F.P.). 3. Id. passim. 4. Id. at Id. at Fed. R. Evid. 901(a). 7. Lorraine, 241 F.R.D. at 544 (quoting Weinstein, at [3]). 8. Id. at Id. 10. See, e.g., In re Vee Vinhee, 336 B.R. 437, (B.A.P. 9th Cir. 2005) (proponent failed to properly authenticate exhibits of electronically stored business records); United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000) (proponent failed to authenticate exhibits taken from organization s website); St. Luke s Cataract & Laser Institute P.A. v. Sanderson, 2006 WL , at *1 2 (M.D. Fla. May 12, 2006) (excluding exhibits because affidavits used to authenticate exhibits showing content of web pages were factually inaccurate and affiants lacked personal knowledge of facts); Rambus v. Infineon Tech. AG, 348 F. Supp. 2d 698, (E.D. Va. 2004) (proponent failed to authenticate computer generated business records); Wady v. Provident Life & Accident Ins. Co. of Am., 216 F. Supp. 2d 1060, (C.D. Cal. 2002) (sustaining objection to affidavit of witness offered to authenticate exhibit containing documents taken from defendant s website because affiant lacked personal knowledge); Indianapolis Minority Contractors Assoc., Inc. v. Wiley, 1998 WL , at *7 (S.D. Ind. May 13, 1998) (proponent of computer records failed to show they were from a system capable of producing reliable and accurate results). 11. Lorraine, 241 F.R.D. at Fed. R. Evid. 901(a), advisory committee s note. 13. Lorraine, 241 F.R.D. at 545; see St. Luke s, 2006 WL at *3 4; United States v. Safavian, 435 F. Supp. 2d 36, 40 n.2 (D.D.C. 2006); Wady, 216 F. Supp. 2d at (C.D. Cal. 2002). 14. Lorraine, 241 F.R.D. at Id. (citing Weinstein [2]). 16. Id. 17. St. Clair v. Johnny s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, (S.D. Tex. 1999). 18. See Jackson, 208 F.3d at 637 (excluding evidence of website postings because proponent did not show sponsoring organization, as opposed to a third party, posted the statements on its website). 19. See Novak v. Tucows, Inc., 2007 WL , at *5 (E.D.N.Y. March 26, 2007) (website printouts not authentic without testimony or sworn statements by employee of website host company); St. Luke s, 2006 WL at *2 4, (M.D. Fla. May 12, 2006); Illusion-Dallas Private Club, Inc. v. Steen, 2005 WL , at *9 (N.D. Tex. July 13, 2005) (affidavit that document was obtained from website insufficient without showing of personal knowledge that the studies are what they are claimed to be ), rev d on other grounds, 482 F.3d 299 (5th Cir. 2007); Costa v. Keppel Singmarine Dockyard PTE, Ltd., 2003 WL , at *7 n.74 (C.D. Cal. April 24, 2003) (pages downloaded from defendant s website not sufficiently authenticated without testimony from defendant s representative attesting that the information was placed on website by defendant); Wady, 216 F. Supp. 2d 1060, (C.D. Cal. 2002) (authenticating website postings requires testimony from witness with personal knowledge of who maintains the website, who authored the documents, and the accuracy of their contents); Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL , at *5 6 (N.D. Ill. October 15, 2004) (affidavit from website owner was sufficient to authenticate printout). 20. See United States v. Standring, 2006 WL , at *3 (S.D. Ohio March 15, 2006); Moose Creek, Inc. v. Abercrombie & Fitch Co., 331 F. Supp. 2d 1214, 1224 n.4 (C.D. Cal. 2004), aff d, 114 Fed. Appx. 921 (9th Cir. 2004) (unpublished); Perfect 10, Inc. v. Cybernet Adventures, Inc., 213 F. Supp. 2d 1146, (C.D. Cal. 2002) (applying a reduced evidentiary standard to authentication of exhibits purporting to depict defendant s website postings during preliminary injunction motion); Johnson-Wooldridge v. Wooldridge, 2001 WL , at *4 5 (Ohio Ct. App. 2001). 21. Lorraine, 241 F.R.D. at 546 (citing Safavian, 435 F. Supp. 2d at 40 (permitting messages to be authenticated by comparison with specimens that were otherwise authenticated in the case)). 22. Fed. R. Evid. 901, advisory committee notes, example (4). 23. Id. 24. Lorraine, 241 F.R.D. at The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information, Appendix E, at 80 and n.1 (The Sedona Conference Sept. 2005). 26. Standring, 2006 WL (S.D. Ohio March 15, 2006); Perfect 10, 213 F. Supp. 2d 1146 (C.D. Cal. 2002). 16 Published proof in Proof, FALL Volume , Number 1, Fall by the American Bar Association. Reproduced with permission. All rights reserved. This

5 27. Lorraine, 241 F.R.D. at 548 (citing Weinstein [2]). 28. Id. 29. Id. 30. Lorraine, 241 F.R.D. at In re Vee Vinhee, 336 B.R. at 446; see also Indianapolis Minority Contractors Assoc., 1998 WL , at *7 (proponent must establish process or system used produces an accurate result). 32. Lorraine, 241 F.R.D. at Id. at Fed. R. Evid. 902(5), advisory committee notes. 35. Lorraine, 241 F.R.D. at 551 (citing Weinstein [2]). 36. Id. (citing E.E.O.C. v. E.I. DuPont de Nemours & Co., 2004 WL (E.D. La. October 18, 2004) (admitting into evidence as self-authenticating under Rule 902(5) printouts of postings on the U.S. Census Bureau website)). 37. Id. at (citing Weinstein [3][c]). 38. Id. at Id. at 552 (citing Rambus, 348 F. Supp. 2d at 701 (recognizing Rule 902(11) as the functional equivalent of testimony offered to authenticate a business record tendered under Rule 803(6)) and In re Vee Vinhee, 336 B.R. at 444 (authenticity analysis merges into business record analysis when deciding whether to admit business records)). 40. See Indianapolis Minority Contractors Assoc., 1998 WL , at *6 ( The act of production is an implicit authentication of documents produced. ). 41. See Telewizja Polska USA, 2004 WL , at * Although the admissibility of electronic evidence does not receive nearly the same attention as e discovery generally, there are several in-depth and highly useful resources in addition to Judge Grimm s opinion in Lorraine. One is an ABA article by Linda L. Listrom, Eric R. Harlan, Elizabeth H. Ferguson, and Robert M. Redis entitled, The Next Frontier: Admissibility of Electronic Evidence (ABA 2007), which is available on the ABA s website, Another one is The Sedona Conference Commentary of ESI Evidence & Admissibility (March 2008), which is available for download on The Sedona Conference website at Published in Proof, Volume 17, Number 1, Fall by the American Bar Association. Reproduced with permission. FALL All 2008 rights reserved. proof This 17