The Intersection of Technical and Legal Realities – Collection Fundamentals Series, Part 5
A multi-part series on the essentials practitioners need to know about ESI collections
by Matthew Verga, JD, Xact Data Discovery
In “Collection and the Duty of Technology Competence,” we discussed lawyers’ duty of technology competence and the importance of understanding collection to fulfilling that duty. In “The Broad Scope of Collection,” we discussed the potential legal and technological scope of collection. In “How Computers Store ESI,” we discussed the operation of computer memory. In “Collecting and Recovering ESI from Computer Memory,” we discussed the technical process of collection. In this Part, we review the intersection of that technical process with legal requirements.
The ultimate goal of evidence collection is the eventual use of some of that evidence in court, whether by you or another party. The admissibility of a particular piece of evidence at trial turns on a variety of factors, including its relevance, its potential for prejudice, its status as hearsay, etc. The most foundational of the requirements offered evidence must satisfy is that it must be authentic, i.e. it must actually be whatever it purports to be. This is essential for the obvious reason that fake or falsified or altered materials cannot carry any weight as evidence; fake evidence makes no fact more or less true and is, therefore, irrelevant to the proceedings.
The process for establishing evidentiary authenticity is laid out in Federal Rule of Evidence 901. To establish authenticity, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Satisfying this requirement for ESI means being able to demonstrate that an offered file comes from where you say it does and has not been altered from the original, i.e. that you’ve maintained forensic soundness and chain of custody.