Certification of Authenticity by Process of Digital Identification
(F.R.E. 902(14)) (Federal)

Summary

This Certification of Authenticity by Process of Digital Identification (F.R.E. 902(14)) (Federal) is a standard form that attorneys can use to self-authenticate electronic evidence copied from an electronic device, storage medium, or electronic file under Rule 902(14) of the Federal Rules of Evidence. This template contains practical guidance and drafting notes. Discovery in civil litigation typically involves acquiring electronically stored information (ESI) from your client's sources and copying it—often with the help of a third-party e-discovery vendor—for preservation, review, and production. The copying process creates a digital fingerprint—or hash value—of the electronic evidence. Litigants can use hash values to authentical electronic evidence since identical hash values for the original and copy "reliably attest to the fact that they are exact duplicates." See F.R.E. 902 Advisory Committee notes to 2017 amendments. Rule 902(14) is a critical tool allowing you to authenticate electronic evidence using these hash values by way of a certification of a qualified witness rather than through live testimony. Your certification must contain information that would sufficiently establish the electronic data's authenticity as if it was offered through witness testimony at trial. See F.R.E. 902 Advisory Committee notes to 2017 amendments. The burden of challenging authenticity then shifts to your adversary. However, a certification under Rule 902(14) only establishes that the electronic evidence is authentic. See F.R.E. 902 Advisory Committee notes to 2017 amendments. Your adversary still may object to the data's admissibility on other evidentiary grounds, including hearsay and relevance. See F.R.E. 902 Advisory Committee notes to 2017 amendments. Before offering your electronic evidence at trial or at a hearing, you must: • Provide your adversary with reasonable written notice of your intent to offer the electronic evidence –and– • Make the records and certification available for inspection so that your adversary has a fair opportunity to challenge them See F.R.E. 803(6)(A)–(C), 902(11), 902(14). Note, Rule 902(14) does not limit your ability to authenticate electronic evidence on other grounds provided in the Federal Rules of Evidence, such as judicial notice. See F.R.E. 902 Advisory Committee notes to 2017 amendments. For a full listing of key content covering fundamental civil litigation tasks throughout a federal court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (Federal). For more information about electronic discovery in federal court, see E-discovery: Planning for and Conducting E-discovery (Federal), Electronically Stored Information: Collecting ESI (Federal), Electronically Stored Information: Authenticating ESI (Federal) , Proportionality in E-discovery (Federal), and  E-discovery Best Practices (Federal).  For related checklists, see E-discovery Project Management Checklist (Federal) and E-discovery Vendor Checklist (Federal). For an analysis of the duty to preserve ESI, see Wagstaffe Prac. Guide: Fed. Civil Proc. Before Trial, § 33-IV. For an analysis of the admissibility of ESI in litigation, see Arkfeld: Elec. Disc. and Evid., §§ 8.1–8.30; Arkfeld Best Practices Guide: ESI Pretrial Disc., § 3.9.