Authentication Cases Are on the Rise, Here’s Why

Written by Doug Austin, Editor of eDiscovery Today

When you cover 65-70 case law rulings a year like I do on eDiscovery Today and review three to four times that many to select rulings to cover, you notice which types of disputes are happening more often. One type of dispute happening more frequently relates to the authentication of evidence. The variety of data sources in discovery today has led to an increase in authentication disputes which makes it more important than ever to automate the chain of custody of these various data sources to effectively defend challenges to the authenticity of the evidence produced and presented.

Recent Case Law Regarding Authentication of Evidence

Recent cases demonstrate the challenges faced when authenticating evidence as different courts have different expectations as to standards for authentication, making it more important than ever to be able to demonstrate a defensible process for handling evidence in your cases. The four recent case law examples below demonstrate the complexity of authentication disputes.

In Edwards, et al. v. Junior State of America Foundation, et al., the Court granted in part defendant JSA’s Motion to Dismiss Pursuant to Rule 37 for Failing to Comply with a Court Order to Produce ESI in part over failure to authenticate Facebook messages provided as screenshots. The Court declined to dismiss the case but instead prohibited plaintiffs from offering any evidence of the alleged messages.

In Famulare v. Gannett Co., a New Jersey District Court denied the defendants’ appeal of a magistrate judge’s order for the defendants to produce screenshots of Salesforce data from the defendant’s online Salesforce database or submit to a Rule 30(b)(6) deposition of a defendant representative if the defendants maintained that they could not produce the screenshot format. The defendants had previously exported and produced a Microsoft Excel spreadsheet. The Court rejected the defendants’ argument that the magistrate judge’s order requiring them to produce ESI in a second format was in contravention of Federal Rule of Civil Procedure 34(b)(2)(E)(iii).

In Weinhoffer v. Davie Shoring, Inc., the Fifth Circuit Court of Appeals ruled that the district court abused its discretion by improperly admitting evidence, including an archived webpage with auction terms and conditions from the website archive service Wayback Machine. The Circuit Court ruled that Wayback Machine evidence is not self-authenticating. The Circuit Court also ruled that an internet printout from a different website with the same information was also not properly authenticated.

For State v. Jesenya O., the State of Mexico submitted as evidence Facebook messages from Jesenya O. (Child) to Jeremiah Erickson discussing Child’s inebriation and subsequent totaling of Erickson’s car. Child appealed to the Court of Appeals, arguing that the evidence was not appropriately authenticated, which the Court of Appeals accepted. The Supreme Court of New Mexico reversed that decision, finding that the State’s authentication showing was sufficient under New Mexico Rule 11-901. The Supreme Court determined that, more likely than not, the Facebook Messenger account used to send the messages that discussed the aftermath of a car crash belonged to Child and that Child was the author of the messages. The Supreme Court reversed the Court of Appeals’ decision and reinstated Child’s delinquency adjudications.

The Variety of ESI Sources Today is Leading to More Authentication Cases

A notable trend associated with these cases is that none of them relate to what we consider to be “traditional” sources of electronically stored information (ESI). Two of the cases involve Facebook messages, one case involves Salesforce data, and the other case involves internet printouts from two different sources, including the Wayback Machine. These sources of data are newer and are all in the cloud. These four case law rulings demonstrate the importance of data authentication and the difficulties that a lack of authentication can cause. In all cases, additional time, money, and resources burdened both parties involved when dealing with disputes over authentication of evidence.

As I mentioned in my last post, data is everywhere today. More data than ever is in the cloud and getting to it involves connecting to many services. Connecting to those services not only helps streamline the collection of data, it also preserves chain of custody, enabling you to avoid authentication issues with that data. As the collection of data has become more automated from cloud sources, the need for manual chain of custody procedures (that involve filling out chain of custody forms) is no longer needed for these ESI sources.

Automation Solutions for Authenticating Data

Considerations for managing ESI in discovery continue to evolve as the data sources evolve, and that includes authentication of that data for discovery. Manual data collection methods of the past are prone to error and that can lead to authentication issues with the collected evidence. The ability to connect to data sources in the cloud and automate data collection from those sources with proven technology is one of the best ways to demonstrate to the courts that the evidence is authentic!

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