E-Discovery Field Guide


E-Discovery Field Guide

Adam R. Prescott, Jack Woodcock

Recent Amendments to the Federal Rules of Evidence Affect Electronic Information  

Feel Young Again: Your Old E-mails May Not Be Considered “Ancient Documents”

For those who remember dial-up service and “You’ve got mail!” and may be feeling like the years are adding up, a recent change to the Federal Rules of Evidence offers youthfulness: those emails (or other documents, for that matter) will no longer be automatically excepted from the prohibition on hearsay evidence as “ancient” documents. Under a change effective at the end of 2017, the “ancient documents” exception to hearsay was changed to apply only to documents “prepared before January 1, 1998, and whose authenticity is established.” Fed. R. Evid. 803(16).

Before this change, the ancient documents rule excepted documents that were “at least 20 years old,” which created a moving cutoff for what was considered “ancient.” Without the change, vast amounts of electronic documents created in 1998 or later would have the potential to become admissible non-hearsay over time. Faced with this prospect, the Advisory Committee on Evidence Rules “determined that the ancient documents exception should be limited due to the risk that it will be used as a vehicle to admit vast amounts of unreliable electronic information.” Advisory Committee’s Note. And thus, those early e-mails (or letters or other documents) you may have written 20 years ago will not, at least under the Rules of Evidence, be considered “ancient.”

This rule change will have a large effect in the future. Vast stores of information that would have been considered non-hearsay under the prior rule will now no longer automatically be treated as such (the information, of course, may be admissible under a different exception). And from a larger view, the rule change provides another sign of how electronic documents have changed the practice of law,  particularly discovery. The Rules of Evidence rarely change and the ancient-document exception has its roots in an old, common-law exception to hearsay. But the advent of vast amounts of electronic information have forced many old practices and rules to change.

Competence in Electronic Collection Makes for Authenticity: Changes to Fed. R. Evid. 902

Last year’s amendments to the Federal Rules of Evidence also changed how electronic documents can be authenticated. Rule 902 allows certain types of evidence, to be “self-authenticating,” that is, no “extrinsic evidence” of authenticity is required. Newspapers and periodicals are examples of one category of documents that are self-authenticating. Rule 902(6). New additions to Rule 902 are paragraphs (13) and (14). These paragraphs allow for electronic records to be “certified” by a “qualified person.” Specifically, Rule 902(13) allows for such certification for “a record generated by an electronic process or system that produces an accurate result.” Rule 902(14) allows the same for “data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification.”

These new rules have a direct impact on the collection and admissibility of electronic data.  Using a “qualified person” to collect electronic data can now mean that person can authenticate the data at trial, avoiding needless disputes about authenticity.

The benefits of using a qualified and competent e-discovery professional to harvest electronic data are substantial, not least in ensuring that electronic data is properly collected. But now, practitioners should make sure at the outset that electronic data harvesting is done in a reliable manner that will allow it to be authenticated with ease under Rule 902 down the road. For example, Bernstein Shur has partnered in several recent cases with Evidox, a Boston-based, e-discovery service provider in the collection of both small and large amounts of electronic data. The recent rule changes further entrench the advantages of clients partnering with experienced litigation counsel and sophisticated e-discovery providers.

Recent Survey of Federal Judges Reveals E-Discovery Concerns

Exterro, an e-discovery and legal software vendor, recently released its “4th Annual Federal Judges Survey: Judicial Perspectives on the State of E-Discovery Law and Practice.” (The full report is available through Exterro’s website, at The survey compiled responses from 30 federal judges to questions about a variety of e-discovery issues. Here are eight highlights from Exterro’s insightful survey:

1. 47% of the judges surveyed “somewhat disagreed” that “the typical attorney possesses the legal and technical subject matter knowledge required to effectively counsel clients on e-discovery matters.” Only 3% of the judges “strongly agreed” with that statement.

2. 60% of the judges surveyed cited “poor cooperation” as the leading cause of e-discovery problems, and in response to a related question, 44% of the judges cited “cooperating with opposing counsel” as the preferred means for improving e-discovery outcomes, while 33% cited active participation at Rule 26(f) conferences as a solution.

3. The judges surveyed responded that the most common times for e-discovery mistakes were the identification (30%), collection (30%), and analysis (17%) phases.

4. When asked about new data types, the judges surveyed highlighted social media communications (44%), instant messages (33%), mobile data (30%), and text messages (30%) as the data requiring better preservation.

5. When asked how to improve e-discovery outcomes, 37% of the judges surveyed selected as their top choice that counsel should have a better understanding of their clients’ IT and ESI structures and policies, while another 19% recommended implementing cohesive internal ESI policies and procedures.

6. Asked to assess attorney preparedness for e-discovery on a scale of 1 (unprepared) to 100 (extremely well prepared), the judges’ average grade was a 52 for Rule 16 conferences and a 45 for the exchange of information and documents under Rule 26(a)(1).

7. 37.5% of judges surveyed thought it was malpractice for parties not to enter into an order under Federal Rule of Evidence 502(d) regarding the inadvertent disclosure of privileged materials.

8. Finally, an ominous warning from Hon. John Facciola, a retired former magistrate judge for the U.S. District Court for the District of Columbia, regarding the current state of lawyers and e-discovery:

“Perhaps a day of reckoning is coming. The amendment to the comments to Model Rule 1, which obliges a lawyer to be competent, requires a lawyer to keep abreast of the dangers and benefits of technology. Will 2018 be the year when a judge refers a lawyer to disciplinary authorities because the lawyer was demonstrably incompetent during a discovery conference involving e-discovery?”

Overall, the results paint a picture of a judiciary increasingly frustrated with several recurring issues in e-discovery practices, including a particular displeasure with counsel who are unprepared to discuss e-discovery topics, refuse to cooperate with each other to resolve e-discovery disputes, or are unfamiliar with the amended Federal Rules of Civil Procedure.  All counsel would be well served to keep these lessons in mind as they litigate in federal court.