Authentic digital records: laying the foundation for evidence: a foundation for proving that records submitted as evidence are reliable, usable, and have integrity is built with policies and procedures based on standards and best practices--and documentation that shows they have been followed.

• Author: Mason, Stephen

Proving the authenticity of records is of great concern to information and records managers. While this concern initially involved the integrity of paper-based records, today it extends to include records in digital format. Following are the factors to be taken into account when laying the evidential foundations for submitting evidence in digital format into court in the United States.

Legal Foundations for Authenticating Digital Documents

Rule 901 of the U.S. Federal Rules of Evidence, which governs the authentication of evidence, says that the requirement of authentication is "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

The type of evidence available to a court to determine the authenticity of a digital document will comprise a mix of technical attributes and organizational matters. The 2005 case of In re Vee Vinhnee, debtor, American Express Travel Related Services Company Inc. v. Vee Vinhnee illustrates the nature of the evidence required.

In this case, American Express claimed Vinhnee failed to pay credit card debts and took action to recover the money. After a trial that occurred in the absence of the defendant, the trial judge determined that American Express failed to authenticate certain records in digital format. American Express appealed the verdict, and the decision of the trial judge was affirmed.

In respect of the issues in this particular trial, Judge Christopher Klein pointed out that:

"...the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created."

In essence, the judge made the pertinent point that the issue is "that the record is what it purports to be." The judge continued to explain the issues involved in this process:

"The logical questions extend beyond the identification of the particular computer equipment and programs used. The entity's policies and procedures for the use of the equipment, database, and programs are important. How access to the pertinent database is controlled and, separately, how access to the specific program is controlled are important questions. How changes in the database are logged or recorded, as well as the structure and implementation of backup systems and audit procedures for assuring the continuing integrity of the database, are pertinent to the question of whether records have been changed since their creation.

"There is little mystery to this. All of these questions are recognizable as analogous to similar questions that may be asked regarding paper files: policy and procedure for access and for making corrections, as well as the risk of tampering. But the increasing complexity of ever-developing computer technology necessitates more precise focus."

Klein reached the conclusion that early attempts at establishing a foundation for electronic evidence were too cursory, while also accepting that judicial notice is commonly taken of the validity of the theory underlying the use of computers and the validity of the data generated generally. The judge then set out the tests described by Edward J. Imwinkelried in Evidentiary Foundations in respect to considering electronic records as a form of scientific evidence:

1. The business uses a computer.

2. The computer is reliable.

3. The business has developed a procedure for inserting data into the computer.

4. The procedure has built-in safeguards to ensure accuracy and identify errors.

5. The business keeps the computer in a good state of repair.

6. The witness had the computer readout certain data.

7. The witness used the proper procedures to obtain the readout.

8. The computer was in working order at the time the witness obtained the readout.

9. The witness recognizes the exhibit as the readout.

10. The witness explains how he or she recognizes the readout.

11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

    The judge amplified the fourth test:

    "The 'built-in safeguards to ensure accuracy and...