Per the Federal Rules of Evidence 901 (FRE 901), online evidence requires authentication for admissibility in court. Authentication involves crucial capture details like time, browser, hash values, and metadata. Attorneys often had to provide their own affidavits or testify in court in the past, yet courts still excluded evidence due to inadequate certifications or affidavits. Consequently, law firms faced challenges authenticating web content, either through complex in-house processes or outsourcing leading to slow turnaround times and even missed evidence.
FRE 901 requires a proponent to present evidence sufficient to support a finding that the item is what the proponent claims it is. This can often involve technical details that prove the digital evidence has not been tampered with. FRE 902, on the other hand, lists specific items considered self-authenticating, requiring no extrinsic evidence of authenticity in order to be admitted. However, online evidence often requires a more nuanced approach to authentication, given its easily alterable nature.
One of the significant challenges in authenticating online evidence is the ease with which digital content can be manipulated or altered. Without proper capture and preservation techniques, the authenticity of web content can be difficult to prove. Attorneys have traditionally relied on affidavits or their own testimony to authenticate evidence, but courts have sometimes excluded such evidence due to inadequate certifications or affidavits, highlighting the challenges law firms face in meeting the stringent requirements of FRE 901 and 902.
Various court opinions have demonstrated the importance of meeting the authentication standards set forth by the FRE. These opinions often highlight the need for detailed capture information and the risks associated with failing to adequately authenticate online evidence. By analyzing relevant court opinions, legal professionals can gain insights into best practices and common pitfalls in authenticating digital evidence.
Faced with the complexities of authenticating online evidence, law firms have the option to handle the process in-house or outsource it to specialized vendors. An in-house, self-authenticating solution such as Page Vault Browser, offers more direct control over the process and can decrease time to collect evidence.
This white paper aims to guide legal professionals through the intricate process of authenticating online evidence in compliance with the Federal Rules of Evidence. By understanding the challenges, risks, and best practices associated with authentication, law firms can better navigate the complexities of digital evidence and enhance their litigation strategies.
Last updated October 2023.