So much attention is paid to gathering, processing, searching, reviewing and producing electronically stored information that the issue of how to get it admitted into evidence is often overlooked. In this month’s column, we’ll discuss authenticating ESI.

federal and state rule 901

Federal Rule of Evidence 901 and Pennsylvania’s corresponding rule, 225 Pa. Code Rule 901, are identical. Both generally explain that to “satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is,” and then give a nonexhaustive list of examples of “evidence that satisfies the requirement,” including: the testimony of a “witness with knowledge” that an “item is what it is claimed to be”; the “appearance, contents, substance, internal patterns or other distinctive characteristics of the item, taken together with all the circumstances,” show that the item at issue is what it is claimed to be; and that “evidence describing a process or system and showing that it produces an accurate result” can be used to show that items resulting from the process or system are authentic. The list is nonexhaustive because the drafters recognize that offered evidence can be authenticated in ways too numerous to list and impossible to anticipate.

authentication through forensic means

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