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February 2004

Electronic evidence is replacing traditional forms of business records and paper documents. Litigators and judges are faced with the challenge of determining the authenticity and reliability of electronic data and Internet evidence. Some courts are reacting to this change by adopting a liberal approach when interpreting the personal knowledge requirement in order to authenticate evidence and to lay the foundation for admission of business records. In addition, courts are distinguishing between “computer-generated” and “computer-stored” data and finding that “computer-generated” data is not hearsay.

I. The requirements necessary to authenticate evidence and to lay a foundation for the business record exception are being interpreted broadly.

A. Authentication

A trend is developing toward a liberal interpretation of the personal knowledge requirement when determining whether a particular witness is appropriate to lay the foundation to authenticate computer records. The party offering electronic evidence must, as a prerequisite to admission, establish who created the document, what its contents are, how it was created and whether it has been intentionally or unintentionally altered.1 Organizations often have in-house technology departments staffed with employees who are experienced and familiar with the computer systems used in their particular organizations. Those employees, however, are not the same people who are knowledgeable about the substance of business documents or details regarding their organizations’ daily business. The result is that many businesses do not have personnel within organizations who know enough about both the substance of the electronic evidence and the computer systems of the organizations to satisfy the traditional standards of personal knowledge for authenticating evidence. In recent decisions, courts have responded to these difficulties by relaxing the personal knowledge requirement, considering circumstantial evidence, or admitting documents as self-authenticating in order to admit the evidence.

For example, in Lee v. Commonwealth of Virginia,2 the court found that an employee who h a d k n o w l e d g e o f h o w r e c o r d s w e r e c o m p i l e d a n d m a i n t a i n e d c o u l d a u t h e n t i c a t e r e c o r d s , e v e n t h o u g h h e d i d n o t m a k e t h e c o m p u t e r e n t r i e s a n d w a s n o t t h e c u s t o d i a n o f t h e r e c o r d s . 3 T h e employee was a fraud investigator who had a general understanding of how the records should be kept within the company and how the records were generated. The employee testified from the business records produced from the computer. The computer record was not admitted into evidence and therefore the employee was not asked to lay the foundation for its authentication. T h e c o u r t , h o w e v e r , c o n c l u d e d t h a t t h e e m p l o y e e w o u l d h a v e b e e n t h e p r o p e r p e r s o n t o l a y t h e foundation for its authentication. 4

Other courts have used circumstantial evidence to authenticate electronic documents. Federal Rule of Evidence 901(b)(4) permits the proponent of an item of evidence to authenticate the item based on its “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with other circumstances.” Other factors courts consider in determining whether a document satisfies the authentication requirement include language patterns, where the document is located, whether a witness has knowledge that can connect the document to a particular person, whether the document was in existence at the time of circumstances necessary for a particular person to have created or received that item,5and whether a person’s business habit or routine practice is consistent with the document.

This White Paper is published to inform clients and friends of Morgan Lewis and should not be construed as providing legal advice on any particular matter.

©2004 Morgan, Lewis & Bockius LLP

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