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At first glance it appears that the Federal Rules of Evidence apply equally to the authentication requirement and the business records exception to the hearsay rule for computerized data and Internet evidence. Courts, however, are forced to apply traditional evidentiary rules to rapidly evolving electronic evidence. In so doing, they are on their way to relaxing the personal knowledge requirement that was at one time necessary to lay the foundation to authenticate evidence and to satisfy the business record exception to the hearsay rule. Some courts are even limiting the definition of hearsay to permit the introduction of more

kinds of electronic information.

For more information, please contact:

John C. Goodchild, III Litigation Partner



Christina E. Breslin

Litigation Associate cbreslin@morganlewis.com


1 2 Caught in the Web: Introduction of Electronic and Internet Evidence, Mary S. Diemer (2002). Lee v. Commonwealth of Virginia , 507 S.E.2d 629 (1998). The defendant was convicted of various crimes, including forgery and misdemeanor false pretenses. The court held that the computer records of the company that issued forged checks were admissible as a business record. The employee who was the fraud investigator for the company that issued forged checks was the proper person to testify about the company’s business records and to authenticate them.

3 Id. (holding that although the employee was not the custodian of the company’s records, he was an employee who had knowledge of how the records were compiled and maintained and he had access to the records as an integral part of his job responsibilities). The Lee court cited Sparks v. Commonwealth, 482 S.E.2d 69 (1997), in support of its liberal interpretation of the personal knowledge requirement. In Sparks, bank documents were properly authenticated by a bank vice president even though she was not the custodian or supervisor of the records.

4 While courts are not requiring that a witness have personal knowledge of how a document was created to admit it into evidence, the lack of such personal knowledge may affect how much weight the document is given by the trier of fact. If the witness has no personal knowledge of the recorded events, this is considered by the trier of fact only in determining the credibility of the witness and the weight to be accorded to her testimony. The witness need only be familiar with the company’s record keeping practices to admit the document into evidence.

5 If email is produced by a party from such party’s files and on its face purports to have been sent by that party, these circumstances alone may suffice to establish authenticity. See Superhighway Consulting, Inc. v. Techwave, Inc., 1999 U.S.Dist.LEXIS 17910 at *6 (N.D. Ill. Nov. 15, 1999).

6 763 So. 2d 303 (2000). 235 F.3d 1318 (11th Cir. 2000). Mr. Siddiqui was convicted of fraud, making false statements to a federal agency and obstruction in connection with a federal investigation. Mr. Siddiqui was nominated to receive an award that consisted of a $500,000 research grant. He sent and received various incriminating emails regarding the nomination process. 7 8

9 Saks Int’l, Inc. v. M/V/ “Export Champion,” 817 F.2d 1011 (2d Cir. 1987) (concluding that the determination as to whether the records have sufficient reliability to warrant their receipt in evidence is left to the sole discretion of the trial judge). The court determined that there is no requirement that the person whose first-hand knowledge was the basis of the entry be identified, so long as it was the business entity’s regular practice to get information from such person. See

Morgan, Lewis & Bockius LLP


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