New Amendments To Federal Rule Of Evidence 902 Implicate Electronic Data Collection And Authentication

Two proposed amendments to Federal Rule of Evidence 902 could have a significant impact on the collection of electronically stored information (ESI) and its admission at trial. While these amendments were aimed at reducing the necessity of live testimony from multiple witnesses at trial for the sole purpose of authenticating electronic evidence, they also provide a framework for standardizing ESI collection and means for resolving authentication issues prior to trial.

The current version of Rule 902 stipulates that certain types of documents are self-authenticating and require no extrinsic evidence of authenticity to be admissible at trial. Among these categories of documents are government documents, certified copies of public records, newspapers, and certified business records.¹ The new additions to Rule 902, paragraphs (13) and (14), allow for authentication of electronic evidence by an affidavit of a "qualified person" who can certify in writing that the document