By Helen Geib, QDiscovery
Effective December 1, electronic records can be put into evidence in federal court cases by means of a written certification of “authentication by a process of digital identification.” Parties will be able to take advantage of the cost- and time-saving benefits of amended Federal Rule of Evidence 902 if they can demonstrate that the copy is identical to the original.
This is a two part inquiry. First, the ESI must have been collected in a forensically sound manner so that it was not changed during the copying process. Second, the integrity of the ESI must have been maintained throughout the evidence lifecycle. A sound chain of custody is critical because it documents the record’s journey from collection to the courtroom.
Maintaining defensible chain of custody procedures and documentation takes time, experience and close attention to detail. It is an important responsibility of an eDiscovery or forensic data collection specialist to keep defensible chain of custody documentation that if called upon will support an authentication certification. Litigants and counsel should always verify that their service provider follows chain of custody best practices in evidence handling.
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