Testable reliability: a modernized approach to ESI admissibility.

• Author: Teppler, Steven W.
• Position: Electronically stored information - Electronic Discovery and Digital Evidence

This Article examines the proposition that all digital data sought to be introduced and admitted as evidence should be subject to a heightened showing of reliability and testability. This objective could be reached by either: (1) considering all digital data as hearsay pursuant to Federal Rule of Evidence (FRE) 807; (2) creating a new evidence rule requiring such a showing as a predicate to admissibility; or (3) the emergence of express decisional authority. This Article also analyzes the inadequacy of the current approaches to dealing with the hearsay exception used to offer computer-generated information into evidence. The author proposes that until the FRE are revised to reflect the highly mutable and untestable nature of digital evidence, such evidence should be treated as hearsay and subject to application of Rule 807, and in accordance with Rule 807, deemed inadmissible unless an affirmative showing of reliability and testability is successfully asserted.

SUMMARY

Subject to certain exceptions not pertinent to this discussion (unfair prejudice, confusion of the issues and the like), all relevant evidence is generally considered admissible once a proper foundation has been laid pursuant to Rule 901.

Once authenticated, the FRE provide for the exclusion of hearsay evidence. (1) Hearsay evidence is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," (2) and is generally inadmissible unless it falls either under an enumerated exception or is considered "residual." (3) The business records exception and the "residual" hearsay rule are generally applicable to digital data but adopt differing approaches to trustworthiness or reliability. (4) Rule 803(6)'s "Records of Regularly Conducted Activity" exception (more commonly referred to as the "business records" exception) provides for exception status subject to a rebuttable near-presumption, while the residual hearsay exception set forth in Rule 807 appears to require an affirmative showing of reliability or trustworthiness. (5) These exceptions (6) to the hearsay rule provide for widely disparate assessments of trustworthiness.

Since digital data is inherently mutable and not testable by inspection, it is generally not demonstrably trustworthy (e.g., reliable) under most data generating regimes. (7) The Rules sidestep the digital data's inherent unreliability by providing only a low bar to attaining admissibility by operation of the business records exception, that is, by a literal adherence to current requirements, and which tends to reflect an assessment that is proffered but not performed. (8) Accordingly, this approach pays homage to, but falls short of its intended objective of reliability because the Rules (and most judicial authority) do not properly address reliability issues arising from the inherently mutable nature and concomitant untestability of native digital data. (9) Although this shortcoming has been documented since at least as early as the 1970's, the FRE have not been amended to demand of a party seeking to admit digital data that degree of reliability properly reflective of the frailty of digital evidence, except for the December 2011 amendment expressly incorporating the term "electronically stored information" into Rule 101(b). (10)

Until the FRE are revised to directly address the mutable nature of this new species of evidence, an interim solution may be made by considering all digital data to be hearsay, and that an affirmative showing of reliability pursuant to Rule 807 must be demonstrated if admissibility is to be sought.

Although three United States Circuit Courts of Appeals have rejected the comprehensive application of the hearsay rule to all digital data, (11) it is contended that well-established authority from the Second Circuit provides the constitutional basis for deeming all digital data as hearsay. Moreover, and despite the mostly orthogonal arguments made in opposition, the undisputedly mutable and untestable nature of digital data itself compels the conclusion that all digital data is hearsay. Finally, this article examines the potential implications of the application of the hearsay exclusionary rule to digital evidence used in both the criminal and civil context.

Until the FRE are revised to address information in digital format, the prevailing trustworthiness-by-presumption standard set forth in Rule 803(6), together with recent judicial authority, will continue to provide the proper standards for determination of authentication. This Article argues that the admissibility of digital data should be pre-conditioned on some affirmative showing of reliability required by the residual hearsay rule. (12)

1. BACKGROUND

   Digital data, or computer-generated information, is known by many names; one such name, "Electronically Stored Information" (ESI), is the term adopted in the 2006 amendments to the Federal Rules of Civil Procedure (FRCP). (13) Interestingly, the legal community has not come to any agreement (or even a proposal) that defines ESI in non-tautological terms; however, an international standard promulgated by the International Standards Organization (ISO) has offered a non-tautological definition of electronically stored information. (14) Accordingly, for purposes of uniformity and irrespective of instantiation format or however stored, the terms "computer generated information," "ESI," "digital information" and "digital data" are used interchangeably in this article.

   The vast majority of information currently generated is digital in nature. (15) It therefore follows that the vast majority of information sought to be introduced as evidence will also be digital in nature, and this trend is reflected both in the December 2006 amendments to the FRCP as well as the hundreds of interpretive decisions that have issued almost unabated since that time.

   Digital data is inherently malleable or mutable. (16) The inherently mutable nature of computer-generated data creates new issues that have a significant and detrimental effect on reliability, authentication, and ultimately on the issue of admissibility. This mutability, in turn, exposes the inherent frailty of digital data sought to be introduced as evidence. (17)

   With few exceptions to date, these issues remain largely ignored by both the bench and the bar, and are directed into unsuitable definitions or relegated to obsolescent analyses. The reason for this ignorance or misapprehension is likely the result of a basic misunderstanding of the nature of both computer-generated information and the variable nature of the computing environment by which such information is generated. The result of this general misunderstanding can be seen in the current mixture of judicial approaches to the admissibility of digital evidence. (18)

   The FRE use the term "data compilation," but never refer to or directly address ESI, or digital data, as evidence. The evidence rules predate by decades the 2006 electronic discovery amendments to the FRCP, and so it is not surprising that the FRE make no mention of ESI. (19) Despite the approach of the fortieth anniversary of near ubiquity, however, the term "computer" remains notably missing from the FRE. Moreover, even the authentication provisions of Rule 901 refer generally to the accuracy of a "process or system" in producing an "accurate result" (20) without indicating whether the process or system is a computer, or whether the result is computer-generated information.

   The term "data compilation" makes one of its rare appearances in Article VIII of the FRE, and is expressly included as a record of a regularly conducted activity under the business records exception to the hearsay rule. (21) Judicial authority generally supports the proposition that computer-generated information is a subset of the umbrella term "data compilation" for purposes of analysis under the business records exception. (22)

   A second appearance of the term "data compilation" appears in Rule 901(b), but curiously, only from within the context of authenticating "Ancient Documents." (23) A final reference to "data compilation" is found in Rule 1001, which generally requires that an original is required to prove the content of a writing, recording, or photograph. (24) "Writing and recordings" are defined, in pertinent part, to include "letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other forms of data compilation." (25)

   Digital Data as "Source " Data

   The vast majority of information generated today is originated as electronic or computer-generated data. (26) It therefore follows that that digital data will become the main source of evidence used in modern litigation. Despite this massive shift in species of evidence from physical (paper and ink) to digital, there has been a relative paucity of judicial authority, and certainly no emergent majority view, dealing with the vagaries inherent to computer-generated information and the directions for its admissibility into evidence.

   As early as the late 1970's, courts have written about the need to amend the FRE to address the unique evidentiary issues presented by the inherently mutable nature of computer-generated data. (27) Unfortunately, the Rules do not directly address the unique authentication or admissibility issues arising from this massive shift from evidence in physical format to evidence in digital format. (28) It might have been hoped that the 2006 amendments to the FRCP would accelerate corresponding amendments to the FRE. (29) To date, however, this hope remains unfulfilled. Until such time, as it is, attorneys and judges will continue to deal with inconsistent and, at times, contradictory evaluative admissibility frameworks for digital evidence.

   Adding to this...