Chapter 12 - § 12.4 • ELECTRONIC EVIDENCE

• Jurisdiction: Colorado

§ 12.4 • ELECTRONIC EVIDENCE

§ 12.4.1—Introduction

Electronic evidence may include computer-generated data, paper records that have been scanned and stored electronically, word processing files, email, electronic chat texts, websites, metadata, computer simulations, and other forms of information. Such electronic data is now so prevalent that F.R.C.P. 16 and 26 have been updated to provide guidelines regarding electronic discovery. Due to rapid advances in technology over the last few decades, it is safe to say that the majority of records generated by modern businesses, public agencies, and even individuals are now electronic. Although it is increasingly common to see such evidence presented to the court in electronic form, electronic evidence in most instances will be offered at trial in the form of computer printouts. For a wide-ranging discussion of the admissibility issues surrounding electronic evidence under the federal rules, see Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

While the authentication of an electronic record is in theory no different from that of a paper document, the technical complexity and sheer variety of electronic data have made authenticity the most litigated aspect of the admissibility of electronic evidence. The showing required of the proponent of such evidence will vary depending on the type of electronic evidence in question, and also on the court's general attitude toward computer information. Many courts are comfortable with the view that electronic evidence is no more or less inherently reliable than other evidence, and have demonstrated a somewhat lenient approach toward its authenticity. See, e.g., Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1153 (C.D. Cal. 2002). Other courts, however, may require extensive testimony "about the process by which the electronically stored information is created, acquired, maintained, and preserved without alteration or change, or the process by which it is produced if the result of a system or process that does so." Lorraine, 241 F.R.D. at 545; see also CRE 901(b)(9); FRE 901(b)(9) ("[e]vidence describing a process or system and showing that it produces an accurate result" listed as an illustration of authentication or identification). In many cases, all or part of this burden can be avoided through the testimony of an electronic document's author pursuant to Rule 901(b)(1) ("witness with knowledge").

"'[E]lectronic evidence may be authenticated in a number of different ways,'" including through the testimony of a witness with knowledge that evidence is what it is claimed to be, and through circumstantial evidence. Hamilton, 2019 COA 101, ¶ 36 (quoting People v. Glover, 363 P.3d 736, 741 (Colo. App. 2015)). The moving party may authenticate electronically generated printouts through the testimony from an individual with personal knowledge of how the printouts were generated and that they are what they purport to be. Id. It can be particularly difficult to authenticate documentary evidence stored by an internet or cloud provider such as Facebook or Dropbox because the information is user generated. Sufficient authentication typically requires a showing that the user's account is linked to where the document was located. People v. N.T.B., 457 P.3d 126, 133 (Colo. App. 2019) (detective's testimony that Dropbox and Comcast provided documents in response to subpoena and that N.T.B. acknowledged to the detective that he owned a Dropbox account tied to his work email address sufficient authentication).

Generally, courts have not required testimony regarding the functioning and accuracy of the computer process where the records involve data that is "entered automatically rather than manually." People v. Huehn, 53 P.3d 733, 737 (Colo. App. 2002) (declining to require testimony regarding functioning and accuracy of bank records for authentication); People v. Lugashi, 252 Cal. Rptr. 434 (Cal. App. 1988) (where computer record consists of retrieval of automatic inputs rather than computations based on manual entries, testimony on acceptability, accuracy, maintenance, and reliability of computer hardware not required).

Computer printouts are "originals" under Rule 1001(d). Duplicates of computer data files or program files are admissible in the absence of genuine questions about their authenticity or where, under the circumstances, it would be unfair to admit the duplicate in lieu of the original. CRE 1001(d); FRE 1001(d).

Practice Pointer
In some circumstances, you may be required to give your opponent notice that you plan to use computer-generated evidence and furnish him or her with the computer program. If the format or arrangement of data on a computer printout has been determined with an eye to its most effective presentation at trial, you must be able to demonstrate the accuracy of the data and the reliability and integrity of the FRE 902(11) process used for retrieval.

"Metadata" — information automatically generated by a computer and attached to an electronic record — can be an important aspect of electronic evidence. Examples of metadata include the identity of a document's author, header data on a facsimile, and the dates on which files were created. Presuming there is some showing that the machine that created the metadata was in working order and was not tampered with, metadata may be sufficient to authenticate certain electronic evidence under 901(b)(4) because it is a "distinctive characteristic." Courts have held that because automatically generated information is not the "statement" of a human "declarant" under 801(c), it cannot be hearsay. See, e.g., United States v. Cameron, 699 F.3d 621, 641-42 (1st Cir. 2012) (login data automatically collected by Google and Yahoo! software not testimonial); United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005) (Internet protocol address and date of Internet postings not hearsay); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (date stamp and header of facsimile not hearsay).

§ 12.4.2—Computerized Data and Records

Computerized data includes a wide range of electronically stored information and computer generated data. "The admissibility of a computer printout is governed by the rules of relevancy, authentication, and hearsay." People v. Huehn, 53 P.3d 733, 736 (Colo. App. 2002). A printout of computerized records is typically admissible upon showing (1) relevance, (2) that it meets the foundation requirements for authentication of business records, and (3) that it falls within the related 803(6) hearsay exception. Id. Courts have recognized that computerized business records have a "greater level of trustworthiness" then personal computers. Id. Wallace by Wallace v. Target Stores, Inc., 701 P.2d 1272 (Colo. App. 1985) (trial court properly admitted computer printouts where records were kept in the regular course of business, as a regular practice of that business, and because there was no evidence of untrustworthiness). Business records that are merely stored on a computer might require only a minimal showing setting forth the storage and retrieval of the document. Similarly, courts have not required a party to authenticate business records created by a computer with a detailed explanation of the system or process that produced the printout pursuant to CRE 901(b)(9). Huehn, 53 P.3d at 737.

Colorado cases have not previously required compliance with CRE 901(b)(9) as a condition of admitting computer-generated business records . . .

First, although CRE 901(b)(9) may be used to authenticate computer records, there is no requirement, either in the rule itself or in Colorado case law construing the rule, that computer records be authenticated only in this way.

Second, computer business records have a greater level of trustworthiness than an individually generated computer document . . . .

Finally, courts have generally declined to require testimony regarding the functioning and accuracy of the computer process where, as here, the records at issue are bank records reflecting data entered automatically rather than manually.

Id; see also United States v. Keck, 643 F.3d 789, 797 (10th Cir. 2011) ("in the context of electronically-stored data, the business record is the datum itself, not the format in which it is printed out for trial or other purposes."); U-Haul Int'l, Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040, 1043 (9th Cir. 2009) ("[E]vidence that has been compiled from a computer database is . . . admissible as a business record, provided it meets the criteria of Rule 803(6)"); compare People v. Slusher, 844 P.2d 1222 (Colo. App. 1992) (affirming trial court's exclusion of a lease agreement that was created by the defendant). Accordingly, courts will likely require a far more detailed explanation of a private individual system or...