The federal rules of evidence recently changed specifically with the goal of modifying the authenticity requirements for certain ESI. Specifically, Fed. R. Evid. 902(13) and 902(14) were added to Rule 902 (the rule on self-authenticating documents), and these sections read as follows:
One method for authenticating ESI is based on its distinctive characteristics. This concept stems from the following portion of Rule 901(b):
Social media once referred to MySpace. Now it refers to Facebook, Instagram and Twitter, among others. The amount of content posted on these sites is substantial.
Minnesota's Rule 901(b) (on authentication) includes the following example of how a system can be authenticated:
As part of the e-discovery process, keywords can be used to search hard drives, e-mail storage, thumb drives, discs and servers. Keywords can be useful in identifying potentially relevant documents. But practitioners should be aware-particularly when permitting searches within their own systems-that privacy issues beyond the scope of the litigation may be implicated. Privacy concerns arise in the medical field, and in employment law, to name just two. Practitioners must be aware of the law that applies to their clients. Protective orders help to preserve privacy, but practitioners should also be aware of the laws that protect privacy in any database being searched. Competent representation requires this. Minn. R. Prof. Cond. 1.1 (2018).
Trial Practice involves questions about authenticity and how a practitioner may prove that a document is what the advocate claims.
Trial practice requires familiarity with many rules of evidence. One such rule, often overlooked, is the "best evidence rule."