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Somuchdata: How Upcoming FRE 902 Amendments Will Impact Data Collection and Authentication

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Somuchdata: How Upcoming FRE 902 Amendments Will Impact Data Collection and Authentication NAPABA Conference #SoMuchData: How Upcoming FRE 902 Amendments Will Impact Data Collection and Authentication Panelists: Moderator: Rishi Chhatwal, AT&T Services, Inc. Erica Yen,, Reed Smith LLP Melissa DeHonney, Novo Nordisk, Inc. Hon. Paul Grimm, U.S. District Court, Dist. of Md. Keiko Sugisaka, Maslon LLP November 3, 2017 Today’s Agenda • Overview: How is this topic relevant to my practice? • Current vs. Amended Rule of Evidence 902(13) and (14) • Benefits and Limitations of New Rules • Expected Impact and Application in Legal Practice • Audience Q&A 2 Reed Smith LLP #SoMuchData in The Zettabyte Era • Size of the digital universe will double every 2 years at least • 50-fold growth from 2010-2020 Data Never Sleeps 4.0, Domo.com (June 28, 2016) 3 Reed Smith LLP #SoMuchData Used as Evidence in Court Cases 4 Reed Smith LLP Federal Rule of Evidence 902(13) & (14) – Current Status Evidence Rules Evidence Rules Committee Electronic Committee Expected Effective recommends Standing Evidence recommends issuance Date Committee send to Judicial Symposium for public comment) (Dec. 1, 2017 ) (April 2014) (Spring 2015) Conference (March 2016) Evidence Rules Standing Supreme Court adopts Committee drafts Committee recommendation and amendment and approves transmits to Congress notes (Fall 2014) (June 2015) (April 2017) Best Practices Manual Review by Public Comments Supreme Court 2014 2015 2016 2017 “Retroactive” effect for digital evidence properly collected prior to 12/1/17 5 Reed Smith LLP Current Federal Rule of Evidence 902 • Rule 902. Evidence that is Self-Authenticating • Examples of evidence that are self- authenticating: • Records kept in the ordinary course of business and certified • Official government publications or certified public records • Sealed and/or notarized documents • Published newspapers and periodicals • Rule 902 is routinely relied on by trial attorneys in civil and criminal matters 6 Reed Smith LLP Evolution and Purpose of Amendments Evidence Rules Evidence Rules Committee Electronic Committee Expected Effective recommends Standing Evidence recommends issuance Date Committee send to Judicial Symposium for public comment) (Dec. 1, 2017 ) (April 2014) (Spring 2015) Conference (March 2016) Evidence Rules Standing Supreme Court adopts Committee drafts Committee recommendation and amendment and approves transmits to Congress notes (Fall 2014) (June 2015) (April 2017) Best Practices Manual Review by Public Comments Supreme Court 2014 2015 2016 2017 “Retroactive” effect for digital evidence properly collected prior to 12/1/17 7 Reed Smith LLP Need for Amendments to F.R.E. 902 • Challenges with Different Data Formats and Sources • Emails • Text Messages • Voicemails • Instant Messages • Websites • Social Media 8 Reed Smith LLP Self-Authenticating Evidence Under the New Amendments • Rule 902(13): • Rule 902(14): • A record generated by an • Data copied from an electronic process or electronic device, storage system that produces an medium, or file, if accurate result authenticated by a process of digital identification • as shown by a certification of a qualified person • notice requirements 9 Reed Smith LLP Federal Rule of Evidence 902(13) and (14) – Certification Requirements • Written affidavit by “qualified person” 10 Reed Smith LLP Certification Requirements Referenced in New Amendments • Rule 902. Evidence that is Self-Authenticating • (11) Certified Domestic Records of a Regularly Conducted Activity. • (12) Certified Foreign Records of a Regularly Conducted Activity. • Rule 803. Exceptions to the Rule Against Hearsay • (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis… 11 Reed Smith LLP Notice Requirements Referenced in New Amendments • Notice Requirement of Rule 902(11) • Before the trial or hearing • Reasonable written notice of the intent to offer the record • Record and certification available for inspection • Provide fair opportunity to challenge 12 Reed Smith LLP Committee Note to FRE 902(14) – Process of Identification • Hash identification and hash values • Accounts for future technology “other than comparison of hash value” that could provide “other reliable means of identification” 13 Reed Smith LLP Limitations of 902(13) and (14) • Rule only addresses authentication of the evidence • Does not establish accuracy • Does not establish relevance • Does not establish ownership or control • Does not overcome any hearsay objection 14 Reed Smith LLP Limitations of 902(13) and (14) • Example: A party wishes to introduce an internet web page into evidence • The certification will be sufficient to establish (absent advance objections by the opposing party), that the web page is what the proponent says – a particular web page that was posted at a particular time. • The certification will not be sufficient to establish that the substance of the message on the web page is accurate. 15 Reed Smith LLP Admissibility of Electronic Evidence • Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. May 4, 2007) • In dispute about insurance claim for yacht damage from lightning, both sides’ summary judgment motions were dismissed because each side attached emails without authentication 16 Reed Smith LLP Benefits of 902(13) and (14) • Eliminates need for a separate authentication • Allows easier authentication of electronic evidence • Reduces expense 17 Reed Smith LLP Application of Evidence Rule 902(13) Example: Windows registry database used to prove that USB device was connected to a computer in hypothetical civil or criminal case Compare: • Without Rule 902(13) • With Rule 902(13) 18 Reed Smith LLP Application of Evidence Rule 902(14) Example: Four text messages sent from Suspect to #1 to Suspect #2 in conspiracy to commit bank robbery Compare: • Without Rule 902(14) • With Rule 902(14) 19 Reed Smith LLP Challenges to Authenticity • Shifts burden for raising authenticity issues • “…may require technical information about the system or process at issue, including possibly retaining a forensic technical expert at trial.” • “Parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly. 20 Reed Smith LLP Expected Impact of Rules 902(13) and (14) • Will ESI collection practitioners (service providers, in-house counsel, law enforcement) see increased utilization? • More certifications, less testimony? • Fewer challenges to authenticity? • New basis for challenging authenticity? • Affect best practices for handling data? • Should we expect state courts to adopt similar rules? 21 Reed Smith LLP Questions? Thank You! 22 Reed Smith LLP Authentication of Social Media Evidence Honorable Paul W. Grimm† Lisa Yurwit Bergstrom†† Melissa M. O’Toole-Loureiro††† Abstract The authentication of social media evidence has become a prevalent issue in litigation today, creating much confusion and disarray for attorneys and judges. By exploring the current inconsistencies among courts’ de- cisions, this Article demonstrates the importance of the interplay between Federal Rules of Evidence 901, 104(a), 104(b), and 401—all essential rules for determining the admissibility and authentication of social media evidence. Most importantly, this Article concludes by offering valuable and practical suggestions for attorneys to authenticate social media evidence successfully. Introduction Ramon Stoppelenburg traveled around the world for nearly two years, visiting eighteen countries in which he “personally met some 10,000 people on the road, slept in 500 different beds, ate some 1,500 meals[,] and had some 600 showers,” without spending any money.1 Instead, his blog, Let-Me-Stay-For-A-Day.com, fueled his travels.2 He spent time each evening updating the blog, encouraging people to invite him to stay † B.A. (1973), University of California; J.D. (1976), University of New Mexico School of Law. Paul W. Grimm is a District Judge serving on the United States District Court for the District of Maryland. In September 2009, the Chief Justice of the United States appointed Judge Grimm to serve as a member of the Advisory Committee for the Federal Rules of Civil Procedure. Judge Grimm also chairs the Advisory Committee’s Discovery Subcommittee. †† B.A. (1998), Amherst College; J.D. (2008), University of Baltimore School of Law. Ms. Bergstrom is a law clerk in Judge Grimm’s office. ††† B.A. (2008), University of Maryland; J.D. (2012), University of Baltimore School of Law. Ms. O’Toole-Loureiro is a law clerk in Judge Grimm’s office. The views expressed in this Article are those of the authors and not the United States District Court for the District of Maryland. 1 Ramon Stoppelenburg, LET-ME-STAY-FOR-A-DAY.COM, http://www.letmestayfor aday.com (last visited June 2, 2013). 2 Id. 434 AMERICAN JOURNAL OF TRIAL ADVOCACY [Vol. 36:433 at their houses in exchange for having him blog about his experiences with them.3 He accepted donations from companies (plane tickets, clothes, mobile services) in exchange for providing advertising space and shout-outs on his website.4 Essentially, through online communications, Stoppelenburg bartered time, entertainment, and publicity for all of his travel expenses,5 and he was featured as the Wikipedia “Leisure example” of social media usage.6 “Social media,” a relatively new term dating back only to 2004, is defined as “forms of electronic communications (as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and
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