CHAPTER 5 - 5-8 Presumption of Authenticity

• Jurisdiction: United States

5-8 Presumption of Authenticity²³⁵

Texas Rule 193.7 provides for self-authentication of documents produced by the parties in response to discovery requests.²³⁶ Under the Rule, a party need not establish a document's authenticity through other discovery or evidence before using the document against the party producing it at a hearing or trial unless that party objects to its authentication by a specific, good-faith objection.²³⁷ The Rule is particularly useful with respect to emails, whose authors or completeness may be difficult to verify. But the Rule cannot be used to authenticate emails or any other documents that were not produced "in response to written discovery[.]"²³⁸

Because Texas Rule 193.7 only provides for the document's self-authentication when it is used against the party producing the document, in a multi-party action, the party using the document must authentic it independently for use against non-producing parties. Moreover, a party cannot use the Rule to authentic documents that it has produced in discovery.²³⁹

Although Texas Rule 193.7 presumes that documents produced by a party are authentic for use against the party, it permits the producing party to make authenticity objections to those documents. Any objection must (1) be in writing or on the record, (2) be specific, (3) have a good faith factual and legal basis, and (4) be made within ten days after the party obtains actual knowledge that another party will use the document in a hearing or trial, unless the trial court lengthens or shortens that time period.²⁴⁰ The objection procedure's practical effect is that a party need not evaluate its documents' authenticity before producing them, but rather can wait until it is notified that particular documents will be used in a hearing or trial.

Authenticity objections are proper not only when the producing party has a specific, good-faith basis for disputing a document's authenticity, but also when it lacks sufficient knowledge to determine whether the document is authentic. For example, parties often produce documents created by others and about which they have little knowledge. An authenticity objection to such documents is proper.

Because the producing party does not have to assert authenticity objections until after it knows that a document will be used in a hearing or trial, there is a risk of "ambushing" the party seeking to use the document. Texas Rule 193.7 ameliorates this risk in two ways. First, it allows the party seeking to use the document a "reasonable opportunity to establish authenticity."²⁴¹ Second, as suggested by Comment 7 to the 1999 change to the Rule, to avoid authenticity issues at trial, "a party may identify prior to trial the documents intended to be offered, thereby triggering the obligation to object to authenticity. A trial court may also order this procedure."²⁴² Thus, a party in a case filed before January 1, 2021, should request that the action's pretrial order require the parties to exchange exhibit lists.²⁴³

The exhibit lists' exchange will trigger the producing party's obligation to object the authenticity of its documents on the opposing party's list.²⁴⁴ If the producing party fails to object to its documents' authenticity within ten days after the list's service, its listed documents will be deemed authentic for use against the party at trial. However, if the producing party objects to their authenticity, the party seeking to use the documents must be given a reasonable opportunity to establish the document's authenticity even if discovery has closed or a continuance is required.²⁴⁵

Many practitioners attempt to invoke Texas Rule 193.7's self-authentication provision by including in a pleading or a notice a statement to the effect that all documents produced by the...