Anticipation of Litigation Advisor

Admissibility of Electronic Evidence

November 15, 2018

By: Sarah A. Phipps

A party may wish to introduce several types of electronic evidence at trial, including email, text messages, and instant messages; digitally stored data; digital photographs; and social media information. Multiple rules of evidence will apply in these scenarios. However, the admission of electronic evidence requires navigating a number of hurdles presented by the Federal Rules of Evidence.

Hurdle #1 -- Authentication Rules

The first hurdle any proffered evidence must leap is authentication.¹ Under Federal Rule of Evidence 901, “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”² Electronic evidence may be authenticated several ways, the most common of which is presenting a witness with personal knowledge of the information—an option that meets the rule requirement for all types of electronic evidence.³ If no such witness is available, other ways to authenticate include:

Examples of Other Authentication Methods⁴

Expert testimony or comparison with authentic examples [901(b)(3)]
Public records [901(b)(7)]
System or process capable of providing a reliable and dependable result [901(b)(9)]
Official publications [902(5)]
Certified copy of business record of, for example, interoffice instant messaging systems or Outlook [902(11)]
Certified records generated by an electronic process or system [902(13)]
Certified data copied from an electronic device, storage medium, or file [902(14)]

Hurdle #2 -- Relevance Rules

The next challenges to admitting electronic evidence at trial are found in Federal Rules of Evidence 401 and 402, both of which require evidence to be relevant.⁵ Rules 401 and 402 work together, with Rule 401 providing a test for relevant evidence (“[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action”) and Rule 402 stating that “relevant evidence is admissible” unless it is declared inadmissible pursuant to the United States Constitution, a federal statute, other Federal Rules of Evidence, or rules prescribed by the United States Supreme Court.⁶

However, relevant electronic evidence is also sometimes denied admission. One major gatekeeper of relevant evidence—Evidence Rule 403—prohibits the introduction of relevant evidence “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”⁷ For a party or judge⁸ to determine whether proffered electronic evidence is both relevant and admissible under Federal Rules of Evidence 401, 402, and 403, they must undertake a three-part analysis:

First, does the evidence tend to make a fact of consequence to the claims being litigated more or less probable than if the evidence were not admitted?
Second, does the constitution, a federal statute, or other evidentiary rule require the proffered evidence’s exclusion?
Third, does the evidence’s probative value substantially outweigh any negative or prejudicial effects of presenting the evidence enumerated in Rule 403? If not, the evidence must be excluded under Rule 403 even though it is relevant under Federal Rules of Evidence 401 and 402.⁹

Hurdle #3 – Hearsay Rules

If the proffered evidence clears the authentication and relevance hurdles, the next concern is hearsay. Federal Rules of Evidence 801-802 explain what is and is not hearsay.¹⁰ To determine if the evidence to be admitted may be excluded as hearsay, a party or court must answer the following questions:

Is the evidence a statement?¹¹ Statement can be written, spoken, or nonverbal, assertive actions, such as the nodding or shaking of the declarant’s head.¹²
Is the statement made by a person (i.e., it was not created by a machine)?¹³
Is the statement offered to prove the truth of the matter asserted? A statement is not hearsay if it is offered to prove something else, such as the communicative/comprehension capacity of the declarant, the effect of the statement on a listener, the state of mind of the declarant, a verbal act, or legal effect.¹⁴

If the evidence is hearsay—a statement, made by a person, offered to prove the truth of the matter asserted¹⁵ —it could still be deemed admissible if the evidence is a prior witness statement [801(d)(1)] or a statement made by a party opponent [801(d)(2)].¹⁶ If it is neither and the evidence is found to be “hearsay,” to be admissible, the evidence must meet one of the hearsay exceptions provided in Federal Rules of Evidence 803 or 804.¹⁷ Common exceptions for electronic evidence include:

Present sense impression ([803(1)], examples: social media post, text or instant message, email, etc.);
Excited utterance ([803(2)], examples: social media post, text or instant message, email, etc.);
Business records ([803(6)], examples: emails, interoffice instant messaging, work website profile, etc.);
Public records or reports ([803(8)], examples: current public websites, including LinkedIn, Facebook, Instagram, etc.); and
Character reputation testimony ([803(21), example: Facebook posts by people in the community discussing a person’s reputation).¹⁸

Hurdle #4 – Original Writing Rule

Finally, depending on what type of electronic evidence is being offered, the original writing rule might also be implicated.¹⁹ Answers to the following questions determine whether this rule applies to a party’s proffered evidence:

1. Is the evidence:

a.   A writing (consisting of letters, words, numbers, etc., “set down in any form”);
b.   A recording (consisting of letters, words, numbers, etc. in “any manner”); or
c.   A photograph (consisting of an “image” that is “stored in any form”)?²⁰

2. If so, is the evidence:

a. An original writing or recording, meaning does the original have the same effect by the person who executed or issued it; specifically, for electronic evidence, “original means any printout—or other output readable by sight—if it accurately reflects the information; or

b. An original photograph, meaning it is the negative or a print from a negative?²¹

If the evidence is not an original but a duplicate (a “counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original”),²² then the evidence does not automatically meet the “original” writing requirement set forth by Federal Rule of Evidence 1002.²³ However, “[a] duplicate is admissible to the same extent as the original, unless a genuine question is raised about the original’s authenticity” or “it would be unfair to admit the duplicate.”²⁴ Further, an admitting party may also use a summary, chart, or other such demonstrative in lieu of the original forms of the evidence presented to prove the content of voluminous information, such as social medial posts or text message conversations that would be inconvenient to fully examine in court.²⁵

Finally, witnesses with personal knowledge who can verify the content of a duplicative writing, recording, or photograph, are the best tools to overcome the Federal Rule of Evidence 1002 original writing requirement.²⁶ If a witness with personal knowledge verifies the content of the duplicate, the proponent of the evidence does not need to account for the original.²⁷ If the veracity of a duplicate or existence of an original is questioned, the jury is to make such determination based on the information provided at trial.²⁸

Conclusion

Knowing and understanding these hurdles will help attorneys and their clients meet the necessary evidentiary requirements at trial when requesting and receiving, as well as producing, electronic information during the litigation’s discovery phase.²⁹

¹ See Fed. R. Evid. 901-902.
² Fed. R. Evid. 901. Some types of evidence are not required to be authenticated. These are enumerated in Evidence Rule 902 and are considered “self-authenticating,” meaning the evidence requires “no extrinsic evidence of authenticity in order to be admitted.” Some examples are public records, newspapers, and commercial paper.
³ See Fed. R. Evid. 901(b)(1).
⁴ Grimm, P. & Brady, K., Admissibility of Electronic Evidence, at 2 (2018), available at http://craigball.com
/Grimm%20Brady%20Evid%20Admiss%20Chart%202018.pdf (providing many more examples, and for a more categories of electronic evidence than discussed here).
⁵ Fed. R. Evid. 401-402.
⁶ Id.
⁷ Fed. R. Evid. 403.
⁸ See Grimm & Brady, Admissibility of Electronic Evidence, at 3 (citing Fed. R. Evid. 104) (“Before evidence goes to [the] jury, [the] judge must determine whether [the] proponent [of the evidence] has offered satisfactory foundation (preponderance of the evidence) from which [the] jury could reasonably find that evidence is” relevant). Federal Rule of Evidence is also admissible to questions of authenticity. Id.; see also Fed. R. Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”); Fed. R. Evid. 104(b) (“When the relevance depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.”).
⁹ Fed. R. Evid. 401-403.
¹⁰  Fed. R. Evid. 801-802
¹¹ Fed. R. Evid. 801.
¹²  See Grimm & Brady, Admissibility of Electronic Evidence, at 3.
¹³  Fed. R. Evid. 801.
¹⁴ Id.
¹⁵ Id.; see also Grimm & Brady, Admissibility of Electronic Evidence, at 3.
¹⁶ See Fed. R. Evid. 801(d)(1)-(d)(2). Note that documents produced in discovery by opposing parties are presumed to be authentic under 801(d)(2), and that authentication of business records under 902(11) and (12) must meet the hearsay exception of 803(6).
¹⁷ Fed. R. Evid. 803-804
¹⁸ See generally id.
¹⁹ Fed. R. Evid. 1001-1008.
²⁰ Fed. R. Evid. 1001(a)-(c).
²¹ Fed. R. Evid. 1001(d).
²² Fed. R. Evid. 1001(e).
²³ Fed. R. Evid. 1002 (“An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.”); but see Fed. R. Evid. 1004 (“An original is not required and other evidence of the content of the writing, recording, or photograph is admissible if: (a) all the originals are lost . . . (b) an original cannot be obtained by any available judicial process; (c) the party against whom the original would be offered had control of the original . . . but fails to produce it at trial or hearing; or (d) the writing, recording, or photograph is not closely related to a controlling issue.”).
²⁴ Fed. R. Evid. 1003.
²⁵ Fed. R. Evid. 1006.
²⁶ Fed. R. Evid. 1007.
²⁷ Id.
²⁸ Fed. R. Evid. 1008 (“Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any issue about whether: (a) an asserted writing, recording, or photograph ever existed; another one produced at the trial or hearing is the original; or other evidence of content accurately reflects the content.”). Note this difference between questions of authenticity, relevance, and even hearsay—all of which are considered by the judge under Federal Rule of Evidence 104(a) before the evidence can be presented to a jury. See Fed. R. Evid. 104(a); see also Fed. R. Evid. 104(b).
²⁹ See Grimm & Brady, Admissibility of Electronic Evidence, at 5 (providing practice tips, such as: “Be prepared and start with a defensible and comprehensive records management program; Think strategically about the case and evidence from the beginning of the case; Memorialize each step of the collection and production process to bolster reliability; [and] use every opportunity during discovery to authenticate potential evidence.”). Id. (providing examples of how to follow those practice tips, such as using Federal Rule of Civil Procedure 36 to require admissions to show authentication of documents produced or that the party has a copy of the original in his or her possession or using stipulations to authenticate, etc.)

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