Another Nail in the Coffin of Custodian Self-Collections

The proposed amendment to Rule 902 of the Federal Rules of Evidence will add two new subsections – 13 and 14 – that directly impacts the risk of custodian self collections.
Specifically, subsection 14, provides for a simplified process for authenticating Electronically Stored Information (“ESI”). Thus a certification from a “qualified person” that the target ESI was collected through a reliable “process of digital identification,” will no longer require authentication through trial testimony of a forensic expert. Essentially, the ESI becomes self-authenticating.
The impact:

  1. It will be much easier to authenticate ESI.
  2. It will expose custodian self collections to potentially costly discovery disputes.
  3. It will provide a clear standard for a defensible ESI collection.
  4. It will help in reducing costs associated with expert witnesses.

The amendment is expected to be approved on Dec 1, 2017.