Admitting Computer Record Evidence After in Re Vinhnee: a Stricter Standard for the Future?

• Citation: Vol. 4 No. 2
• Publication year: 2007

Shidler Journal of Law, Commerce & Technology Volume 4, Issue 2Autumn 2007

Litigation

Cite as: Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future?, 4 Shidler J. L. Com. & Tech. 6 (Oct. 17, 2007), at [http://www.lctjournal.washington.edu/Vol4/a06Offenbecher.html]

Admitting Computer Record Evidence after In Re Vinhnee: A Stricter Standard for the Future?

Cooper Offenbecher1

©2007 Cooper Offenbecher

Abstract

In re Vinhnee, a Ninth Circuit Bankruptcy Appellate Panel decision, employed Edward Imwinkelried's eleven-step foundation process for authenticating computer records. In employing the eleven-step process, the Vinhnee court articulated a stricter standard than has previously been used by most courts for admitting computer records into evidence. This Article will first consider the various foundation standards that courts have applied to computer records. Next, the Article will analyze the Vinhnee standard, consider its elements, and compare it to the previous standards and commentary. Finally, the Article will conclude that the Vinhnee approach reflects common concerns by courts and commentators, and may influence other jurisdictions.

Table of Contents

IntroductionHistory of Computer Record AdmissionAuthentication and Rule 901The 803(6) FoundationShifting the Burden: The Manual for Complex LitigationImwinkelried's Eleven-Step Foundation ProcessIn re VinhneeIs the Standard Too Strict?ConclusionPractice Pointers

Introduction

[1] In 2005, the United States Bankruptcy Appellate Panel of the Ninth Circuit issued In re Vinhnee, a decision that adopted a newer, stricter standard for the authentication of computer records.2 The court adopted an eleven-step foundation process, advocated for by Professor Edward J. Imwinkelried3 , and refused to admit computer records in a bankruptcy proceeding.4 In light of Imwinkelried's process, the court stated that the witness' knowledge of the hardware and software used by the company was insufficient to prove that the computer records were reliable.5 The opinion marked a serious departure from the previous foundation standard employed by courts for the authentication of computer records.

[2] Today, it is hard to find records and information that are not stored on computers in some form. In our increasingly technologically-oriented society, computers are being used for a broad range of functions in everyday life and business. A large majority of information that was previously calculated and stored on paper now exists exclusively on computers.6 As a result, computer records are becoming an increasingly important part of litigation.7 Complex commercial litigation, health care fraud prosecutions8 , white-collar crime, and bankruptcy proceedings are legal fields that frequently involve computer records as evidence. The admission or exclusion of computer records into evidence can be crucial to winning - or losing - an important case. As computers have become more prevalent and widely accepted, the theoretical question for legal scholars, lawyers, and judges alike, has been: Should courts infer reliability and trustworthiness from computer records?9 However, because the majority of computer records are reliable and authentic, at a more practical level the inquiry is: Through how many hoops should courts require the institutional record keeper to jump?

[3] This Article will consider the various standards that have been employed by courts for admitting computer records. Though evidence of all types is found on computers, this Article will primarily consider business records.10 The Article will then analyze Vinhnee and will consider whether the standard applied by the court is too strict. Ultimately, the Article will conclude that the Vinhnee standard is an accurate reflection of the concerns of courts and legal scholars, and may influence the law in other jurisdictions.

History of Computer Record Admission

[4] Today's lawyers rely on Federal Rule of Evidence 803(6), commonly referred to as the "business records exception" to the hearsay rule, as a way to admit business records, including those kept on computers, into evidence.11 The Federal Rules of Evidence (FRE), however, were only adopted in 1975.12 Prior to the national codification of the rules of evidence, a similar business record exception to the hearsay doctrine was recognized at common law due to necessity and reliance.13 The basic premise behind the "shop-book" rule (as it was called) was the importance of business records in litigation and the overwhelming expense and burden on judicial resources that would ensue if parties were required to call as a witness every person who had made an entry in a business ledger.14 Business records have been considered generally reliable because of the day-to-day reliance that businesses place on the records.15

[5] As computers became more frequently used as a means of storing business records, and computer records began playing an important role in litigation, federal courts took different approaches to the presumptive reliability of computer records. One approach was to consider the authenticity of business records on a computer as "immaterial", and to treat the records as if they had been kept on paper.16 One court even went so far as to give computer printouts produced in the course of business at least a prima facie aura of reliability.17 Another approach was more cautious, and called for a more careful and detailed foundation concerning the computer systems that produced the records.18

Authentication and Rule 901

[6] Rule 901(a) is the general authentication requirement under the FRE.19 Rule 901(b) offers, "by way of illustration only", examples of authentication or identification that conform with the requirements of Rule 901.20 Rule 901(b)(9) states that "[e] vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result" is required to authenticate evidence.21 The FRE Advisory Committee's note explains that this rule can be properly applied to computer records.22 However, many courts have not required specific authentication procedures under 901(b)(9) for business records that have simply been kept on a computer.23 Rather, some courts have only required specific authentication under 901(b)(9) when the computer system or process has produced a compilation or analysis specifically for trial.24 As a result, Rule 901(b)(9) is often not considered by courts when the issue is merely the introduction of computer printouts of business records.

The 803(6) Foundation

[7] When the FRE were enacted, Rule 803(6) codified the shop-book rule as the hearsay exception for "Records of Regularly Conducted Activity."25 The rule permits the admission of records made by a person with knowledge and kept in the regular course of a generally conducted business activity unless the source of information or method of preparation indicates a lack of trustworthiness.26 While different courts have organized the process and the wording of the steps differently, the traditional foundation for business records under 803(6) requires that the records be:

Made at or near the time by, or from information transmitted by, a person with knowledge;

Made pursuant to a regular practice of the business activity;

Kept in the course of regularly conducted business activity; and

The source, method, or circumstances of...