Reconsidering Custodial Self-collection: Rule 902 updates coming soon

Changes to the Federal Rules of Evidence (“FRE”) coming in December of this year should lead you to reconsider how you collect data. Litigants must balance the costs, time, and hassles of self-collection on the one hand against those of using a third party, often on a case-by-case basis. Setting aside the likelihood that a self-collection will modify metadata or be perceived as either self-serving or insufficient, there is now an even better reason to engage a third party to perform it: Certified authentication.

FRE 902 addresses self-authenticating evidence. Common examples such as signed and sealed public documents, printed matter such as newspapers or periodicals, and official publications have long been accepted as prima facie authentic when presented at trial.  Proposed additions to the list of self-authenticating documents in Rules 902(13) and 902(14) address two topics of particular interest.

Proposed Rule 902(13)

Proposed rule 902(13) addresses records created by an electronic process or system. In a world where an ever-increasing number of devices create data, authentication of such data has become cumbersome and inconvenient. Until the Amendments are effective, each source of data may need to be authenticated by an expert witness, even in commercially available software with standardized outputs. Authenticating GPS data, a toll transponder, or the records of an event data recorder to prove a single evidentiary issue can become lengthy and expensive processes for each device if the authentication requires a witness to be called to testify. Recognizing that, and that the authentication of the types of data contemplated by the rule are infrequently challenged, the federal advisory committee on the rules of evidence recommended the addition of Rule 902(13):

(13) Certified Records Generated by an Electronic Process or System.

A record generated by an electronic process or system that produces an accurate result, as shown by a certification by a qualified person that complies with the certification requirements of Rule 902(11) or Rule 902(12). The proponent must meet the notice requirements of Rule 902(11).

Proposed Rule 902(14)

Rule 902(14) relates to data collection. For many years, self-collection has been considered an option for low to medium stakes litigation. There have always been a number of reasons to avoid self-collection, from concerns about altered metadata, poor search capabilities within desktops, to custodians misunderstanding the nature of the requested information. The addition of Rule 902(14) should make you take a hard look at self-collection and consider abandoning the process altogether. The proposed amendment reads as follows:

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File.

Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12).

For a collection to be self-authenticating and for a custodian to avoid testimony on questions related to it, draft FRE 902(14) requires that a "qualified person" will have to certify that best practices were followed. This makes sense in light of the realities of collection.

Collecting without spoliation is a process that requires some technical expertise. There are many pieces of data which are easy to spoliate, even when collected in good faith. They include system level data such as last login or log file data, and most frequently, file access related data. 

To avail themselves of the benefits of proposed FRE 902(13) and 902(14), litigants and lawyers should engage a well-qualified professional who can certify that s/he has followed industry standard best practices. This will render live testimony mainly irrelevant, absent a specific showing that there was an issue during collection. Should a challenge arise, an expert in forensic collections, be it an eDiscovery certified attorney, forensic or IT professional who understand the tools used to perform collection, rather than a custodian can provide you with the certification you need without exposing a witness you might otherwise not wish to put on the stand. Such a development in evidentiary efficiency figures to be welcomed by all stakeholders to the litigation process.