Authenticating ESI – Rule 901a

Lorraine v Markel American Insurance Company [2007]

This landmark 2007 decision by leading eDiscovery juror, Justice Paul Grimm, discussed in great depth the admissibility and methods of authentication of ESI (Electronically Stored Information) and the standards and elements of the US Federal Rules of Evidence, with a focus on Rule 901(a); methods on authenticating evidence.

In this case the authenticity of emails were called into question during proceedings, and so the court took the opportunity to address the standard of authentication necessary when producing digital content or ESI as evidence. In this case, neither plaintiffs nor defendants authenticated the exhibits attached to their motions, rendering them useless as evidence, and this was the first reason for dismissing the motions.

A party seeking to introduce digital content as evidence must make a prima facie showing that the evidence is what it claims to be.

Though this case is from 2007, this 100-page opinion still stands as good law today for a number of reasons. Even at the time of hearing it was held that "counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence", as the manual preparation of evidence has been quickly replaced by electronically stored and created evidence.

Despite similarities with the methods of authentication of traditional evidence, federal courts have acknowledged a duty to properly scrutinize electronic evidence given the ease with which it can be edited, and that such evidence may require higher levels of examination than traditional forms of evidence.

The analysis of authentication of ESI is subject to existing rules of evidence (in the context of United States Federal Law), rather than limited to a new form of authentication for specific types of new evidence.

Counsel took the opportunity in Lorraine v. Markel to address Federal Rules of Evidence 401, 402 and 105, 901(a) (authentication of evidence), 801, 403 and Rules 1001-1008.

Authentication of ESI

Authentication of evidence is generally established either by direct proof or by circumstantial evidence. Circumstantial evidence is essential in proving authenticity of digital content, as there are many varying forms of ESI, and so the circumstantial evidence may be context specific.

Justice Grimm stated though this standard of authentication, is “not a particularly high barrier to overcome”, the “failure to authenticate…. almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation….”

The authentication standards of Rule 901 are designed to create a threshold standard to test the reliability of evidence (subject to review by cross-examination at a later stage if necessary). 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.

Role of WebPreserver

WebPreserver software was designed with the objective of creating reliable, evidentiary standard documents from digital content and ESI found on social media, blogs and websites in line with Federal Rules of Evidence and other standards of litigation compliance.

With the easy installation of a Plug-in and single-click capture technology, WebPreserver software creates snapshots of evidence from any content place in the internet and stores them in PDF and WARC formats for use in litigation; the perfect tool for legal professionals and law enforcement authorities.

Our unique features of digital e-signature (in line with the E-Sign Act) and automated time-stamp provide content specific circumstantial evidence to ensure your evidence is admissible in court. A Metadata format of your Snapshot is also stored for additional compliance measures.

Snapshots are instantly created, easily downloaded, archived and organized. Additional resources include the ability to create and share personal files on our online platform, perfect for efficient sharing with clients and colleagues and easily organized with keyword tagging options.

Ensure that your evidence submitted during Discovery is always discoverable, reliable and admissible by utilizing WebPreserver as a cost and time effective eDiscovery and archiving tool.

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