Authentication of Esi

• Jurisdiction: Maryland

III. AUTHENTICATION OF ESI

In actuality, the authentication of evidence is a relatively straightforward concept: "A piece of paper or electronically stored information, without any indication of its creator, source, or custodian may not be authenticated under Federal Rule of Evidence 901."²¹ Nevertheless, in the two years since Lorraine was issued, courts and counsel still seem to struggle with the basic principles of authentication as it applies to electronic evidence. Some courts are still permitting only rudimentary admissibility standards and counsel are still, at times, failing to meet that low bar. As electronic evidence becomes more ubiquitous at trial, it is critical for courts to start demanding that counsel give more in terms of authentication—and counsel who fail to meet courts' expectations will do so at their own peril.

It may come as no surprise to the readers of this Article that Lorraine was drafted, in part, as a "how to" for the authentication of electronic evidence. It was written to assist counsel in better preparing themselves for the use of electronic evidence during trial by clarifying how Rules 901 and 902 might apply. As Lorraine demonstrates, electronic evidence comes in many forms and it is no secret that someone highly adept with computers has the ability to make viewers see whatever he or she wants them to see. But it is also a very real possibility that someone inept with computers may also alter electronic evidence so as to make it unusable or inadmissible.²² Therefore, as technology continues creating relevant evidence while, simultaneously, outpacing the working knowledge and ability of most lawyers and judges to deal with it, ensuring proper authentication of electronic evidence becomes a greater responsibility for attorneys and judges alike.

A. Rule 901

Rule 901 requires that evidence be authenticated before being admitted.²³ That requirement sets a relatively low bar, permitting evidence to be authenticated if the "matter in question is what its proponent claims."²⁴ But, as Lorraine points out, the rule is silent as to how, exactly, courts and lawyers should demonstrate that evidence is "what its proponent claims."²⁵

As a launching point, Lorraine relied on a number of Rule 901(b) illustrations²⁶ to describe the best manner by which to authenticate particular forms of electronic evidence. The particular illustration to be applied depends generally on the type of electronic evidence to be admitted, the manner in which it was created, and its intended use at trial. The most likely illustrations to apply to the majority of electronic evidence under Rule 901 include:

• E-mail Evidence:

• Rule 901(b)(1), "Testimony of a Witness with Knowledge"

• Rule 901(b)(3), "Comparison by Trier or Expert Witness"

• Rule 901(b)(4), "Distinctive Characteristics and the Like"

• Internet Websites

• Rule 901(b)(1), "Testimony of a Witness with Knowledge"

• Rule 901(b)(3), "Comparison by Trier or Expert Witness"

• Rule 901(b)(4), "Distinctive Characteristics and the Like"

• Rule 901(b)(7), "Public Records or Reports"

• Rule 901(b)(9), "Process or System"

• Chat Room and Text Messages

• Rule 901(b)(1), "Testimony of a Witness with Knowledge"

• Rule 901(b)(4), "Distinctive Characteristics and the Like"

• Computerized Records or Data

• Rule 901(b)(1), "Testimony of a Witness with Knowledge"

• Rule 901(b)(3), "Comparison by Trier or Expert Witness"

• Rule 901(b)(4), "Distinctive Characteristics and the Like"

• Rule 901(b)(9), "Process or System"

• Computer Animations

• Rule 901(b)(1), "Testimony of a Witness with Knowledge"

• Rule 901(b)(3), "Comparison by Trier or Expert Witness"

• Computer Simulations

• Rule 901(b)(1), "Testimony of a Witness with Knowledge"

• Rule 901(b)(3), "Comparison by Trier or Expert Witness"

• Digital Photographs

• Rule 901(b)(9), "Process or System"²⁷

With this "checklist" in mind, it is helpful to see what courts have done with various types of ESI when determining whether it is authentic.

1. Internet Websites

Introduction of the content of websites, and website search results, is becoming an increasingly common evidentiary occurrence. Searches and Internet surfing are easy and common practices, but using those results at trial requires counsel to step away from the computer, and think about how, exactly, the proffered website should be authenticated.

In Whelan v. Hartford Life & Accident Insurance Co.,²⁸ decided after Lorraine, the plaintiff sought to introduce Nexis printouts as evidence to show that the doctor who performed the plaintiff's examination was biased and closely affiliated with an insurance company.²⁹ The plaintiff argued that the printouts would demonstrate that the doctor was associated with a network of providers that "cater[ed] exclusively to the insurance industry."³⁰ To authenticate the printouts, plaintiff's counsel submitted a declaration "stating that the printouts are true and correct copies of the result of an internet search of services provided to insurance companies by [the network of providers]."³¹ The defendant objected to the evidence, in part, on the grounds that the evidence had not been authenticated.³²

The court examined the evidence and held that, although the printouts had a URL address and date stamp, the attorney's declaration was insufficient to authenticate them.³³ What was required, the court held, was a "declaration by the person who personally conducted the search, or by the company stating that the computer printouts are a true and correct copy of the information from its website."³⁴ The standard insisted upon by the court in Whelan reflects the manner in which courts may avoid the concerns identified in Lorraine that a website may include information not officially sanctioned by its alleged owner. Accordingly, when faced with the authentication of websites, as reflected in Whelan, courts may require "proof by the proponent that the organization hosting the website actually posted the statements or authorized their postings."³⁵

A similar case, also decided after Lorraine, related to the authentication of websites and e-mails serves not only to underscore the importance of authentication, but as a warning that authentication should be done properly. In Bowers v. Rector & Visitors of the University of Virginia,³⁶ the authentication of e-mails and websites became an issue in the plaintiff's claims associated with her termination from the University.³⁷ As part of her cross-motion for summary judgment, the plaintiff, by counsel, submitted a thirty-eight page memorandum and seventy-four exhibits totaling over 600 pages.³⁸ Included with those 600 pages were an incendiary affidavit, fifty-one unauthenticated e-mails, and unauthenticated printouts from a Virginia Employment Commission website and a University of Virginia webpage.³⁹ The defendants responded by contending that most of plaintiff's evidence was inadmissible and moved to strike the plaintiff's unauthenticated submissions while also seeking sanctions under Rule 56(g).⁴⁰

As part of her reply, plaintiff's counsel attempted to remedy her failure to authenticate the e-mails and websites by way of a personal affidavit wherein "she stated that the contested exhibits were in fact 'authentic' because the e-mails had been obtained from the defendants during the course of discovery and the web pages were taken from 'published' internet websites."⁴¹ Her attempt to authenticate was viewed by the court as "an abject failure on her part either to understand or to appreciate a number of evidence rules, including inter alia Evidence Rules 402, 404, 802, 805, and 901."⁴² Accordingly, the court granted the defendants' motion for Rule 56(g) sanctions, in part because:

[T]he submission by plaintiff's counsel of. . . more than fifty unauthenticated copies of e-mails convincingly demonstrates both a recklessness and an absence of preparation on the part of plaintiff's counsel. Equally so, her resort to use of her own affidavit in a misguided quickand-easy attempt to fix significant evidentiary deficiencies, demonstrates a recklessness in preparation and a failure to exercise legal judgment abject.⁴³

2. Chat Rooms and Text Messages

Anyone with teenage children or who has been to the mall recognizes that chat rooms and instant and text messaging are playing a larger part in the way we communicate as a society. Like it or hate it, it is a form of communication that is becoming increasingly pervasive, and therefore will be offered as evidence in civil and criminal cases. Chat room and text or instant messaging "dialogues," for example, pose unique challenges to authentication due in large part to the fact that they typically are created by parties using anonymity-protecting "screen names" on websites where the host cannot be assumed to know the content. Courts have recognized numerous ways to authenticate the use of chat room transcripts, including authentication circumstantially under Rule 901(b)(4) and testimony by a witness with personal knowledge.⁴⁴

In Adams v. Disbennett,⁴⁵ the court held that a witness with personal knowledge was sufficient to authenticate instant message texts. In a case arising between disgruntled online lovers, the municipal court permitted the plaintiff to introduce transcripts of instant messaging that took place between the couple.⁴⁶ On appeal, defendant claimed that the court erred by admitting transcripts that plaintiff claimed were not properly authenticated under Ohio's equivalent of Rule 901.⁴⁷ At trial, the court permitted the plaintiff to authenticate the documents through his own testimony based on personal knowledge.⁴⁸ As part of that testimony, the plaintiff identified his and defendant's screen names, stated that he had not changed any of the private messages, and testified that the exhibits were a printout of what he saw on the screen on the various days the two chatted.⁴⁹

The defendant rebutted this evidence by stating that "she could not...