NEW FEDERAL RULE CHANGES E-DISCOVERY BEST PRACTICES
It’s time to bid final farewell to “print screen” methods of digital evidence collection. In an effort to streamline the admission of electronic evidence, key amendment to US Federal Rule of Evidence 902 has made eDiscovery best practices more important than ever.
Effective December 1, 2017, digital evidence must be self-authenticated for admission in court, requiring a precise collection and verification process that can only be achieved with the appropriate eDiscovery tools and certification of a qualified professional.
What is self-authenticated evidence?
Under the amended Federal Rule, in order for electronic data to be entered into evidence and admissible in court, the records must be accompanied by a written affidavit of a qualified person such as a Certified Digital Forensic Examiner. Expert testimony during trial may no longer be routinely necessary, as the amended Rule will require that a professional has already employed best practices in the collection, preservation and verification of the digital identification process.
What is a hash value?
Data from all electronic devices, storage and media files come with a digital footprint called a hash value. A hash value maps out a sequence of characters produced by an algorithm within each piece of digital content. The amended ruling will help ensure that copies of data are identical to the original by having a certified person compare the hash values prior to admission.
The Advisory Committee notes the importance of requiring technical knowledge of not only the digital records but also of the electronic system, thereby encouraging a forensic technical expert to aid in the collection and verification process, from start to hash value.
No time to wait!
Although the amendment will not go into effect until December 1, 2017, electronic evidence that is being routinely collected today will be required to comply retroactively if being introduced in court at the end of the year. Therefore, practitioners need to account for Rule 902(14) immediately.