The immense time and energy-saving benefits of technology are no secret, even in the legal field. And the increased use of technology in litigation has created a number of efficiencies related to evidence authentication. Now, amended Federal Rules of Evidence (“FRE”) have been adopted by the federal bar in order to further enhance these efforts.

Authenticating electronic evidence previously required live testimony from a process that was both costly and time consuming for all parties involved. The introduction of amended FRE 901 and 902, which regulate the authentication of electronic evidence, have streamlined this process. The new FRE 901 dictates the process of extrinsically authenticating or identifying a piece of proposed evidence, while FRE 902 guides the circumstances in which evidence can be self-authenticating.

Under FRE 902, certain types of evidence and collection methods are considered self-authenticating. The circumstances in which this is true, and where parties do not need to introduce extrinsic evidence of authenticity, are as follows:

• (1) Domestic public documents that are sealed and signed
• (2) Domestic public documents that are not sealed but are signed and certified
• (3) Foreign public documents
• (4) Certified copies of public record
• (5) Official publications
• (6) Newspapers and periodicals
• (7) Trade inscriptions and the like
• (8) Acknowledged documents
• (9) Commercial papers and related documents
• (10) Presumptions under a federal statute
• (11) Certified domestic records of a regularly conducted activity
• (12) Certified foreign records of a regularly conducted activity

Under new federal guidelines, two more circumstances have been added to the list of self-authenticating electronic evidence:

• (13) Certified records generated by an electronic process or system
• (14) Certified data copied from an electronic device, storage medium, or file

These amendments to FRE 902 will play a significant role in the courtroom. No longer are live witnesses needed (in most cases) to authenticate certain machine-generated data and/or forensically collected electronic evidence. This will surely create time, money and energy-saving efficiencies for the court and for attorneys.

It’s important to note that these amendments still offer ample opportunities for objection. Authenticating electronic evidence is the first step toward admission. Once authenticated, evidence must be submitted to all parties within a reasonable timeframe that allows adequate time to inspect and/or object to the evidence. If no objections are made, the evidence can be legally admitted.

While the Federal Bar has determined that these amendments to FRE 902 were necessary, the state of Michigan has yet to adopt these changes. Thus, many proposed pieces of evidence must be framed as business reports, which are self-authenticating under FRE 902. Otherwise, FRE 901 dictates that a live witness is needed for evidence to be authenticated.

Although these amendments streamline the process of admitting evidence, they are by no means an “end-all, be-all” when it comes to authentication of evidence. There is still refining to be done in the process of self-authentication, which is why it is important to work with a legal expert who understands the nuances of these situations and can work on your behalf within the rules of the system for a favorable outcome.

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At Dawda, going above and beyond in our industries of expertise is important to us. That’s why I have been a contributing author to all three editions of E-Health, Privacy, and Security Law, a comprehensive treatise published by the ABA Health Law Section and Bloomberg/BNA.  The treatise provides a comprehensive analysis of all things e-health, ranging from an overview of the e-health industry to detailed analyses of intellectual property, antitrust, privacy and data security, and other issues pertaining to the deployment of e-health mechanisms.

E-health providers and users face real and substantial legal and regulatory risks associated with the use of health information technology. These users and providers fall into several categories (some of which may overlap): e-content, e-product, e-connection, e-care, and electronic health record (EHR) system users and providers. The first step in managing the risks these factors face is knowledge of their existence, which is the primary focus of the treatise. Once known, the objective is to minimize, and if possible eliminate, the risks and their attendant liabilities.

This year, I had the pleasure of doing a full re-write of my chapter in the treatise, titled “Allocation and Mitigation of Risk.” The chapter generally identifies the legal and regulatory risks applicable to each e-health provider and user category, provides a detailed summary of the penalties and liabilities potentially deriving from those risks, and offers recommendations and techniques for the allocation and mitigation of those risks.  Topic areas include unauthorized use of copyrighted material, unlicensed and unauthorized practice of medicine, privacy and data security and federal regulation of telemedicine.

If you’re looking for a single resource on the rapidly expanding area of e-health law and regulation, please consider this treatise. We’re only a few months into 2017, but we’re already working on the next publication supplement.

Send me a message if you’re interested in learning more about e-health or the entire treatise.

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Perhaps you have been watching the dance between Tim Cook, CEO of Apple and the Federal Bureau of Investigation. Ostensibly, they are fighting over one phone. But it’s much more complicated than that.

THE ONE PHONE: The FBI is understandably frustrated that they have the phone belonging to Syed Rizwan Farwook, the San Bernadino gunman who was killed by police along with his wife, after murdering 14 people. The FBI, after being criticized for not doing nearly enough intelligence work to prevent the tragedy, is trying to track down any networking or other information from Farwook’s phone, which is locked. The FBI has not only ordered Apple to figure out a way to unlock this specific phone, but they have also asked the courts to force Apple’s hand and to create a “back door”, that is a way to unlock all phones in the future.

Apple is resisting the FBI, although trying to portray themselves as a good citizen at the same time.

Public opinion, at first glance, might seem to be favoring the FBI. After all, this was a heinous crime, and intelligence authorities should have access to every legal avenue of investigation. But there seems to be broad consensus that Apple should stand its ground for a number of reasons.

CRITICISM FROM THE RIGHT: Those who criticize the US intelligence services as inept or weak point to the events at San Bernadino and are quick to note that the FBI is trying to scapegoat Apple for their own inabilities to prevent the tragedy. They also tend to frown on government intervention in private entrepreneurship.

CRITICISM FROM LIBERTARIANS: All those who are concerned with privacy rights point out, correctly, that the FBI already has the records of phone calls and texts from Farwook’s phone via the phone service provider. They staunchly support Apple’s default encryption basis (which is not the case with Android phones) and even the Apple “kill switch”, which completely locks the phone after ten incorrect passwords are entered.

CRITICISM FROM THE ACLU: The American Civil Liberties Union has also sided with Apple, noting that there is already a “digital privacy divide” in the United States with poorer citizens utilizing phones that do not have encryption as the default setting. The ACLU is also concerned with allowing invasions into people’s phones for cases that are far less serious (noting that this is the perfect test case because of its seriousness).

CRITICISM FROM THE PRESS: Reporters, editors and publishers have raised the red flag of protection of confidential sources. In addition, those reporters (and business travelers) who live, work and travel in far less democratic places like Iran, North Korea, and China think that losing the ability to have encryption would place many Americans and others in danger. Already LGBT travelers to Russia are warned to take different phones when they travel there.

IMPACT ON EU/US PRIVACY SHIELD AGREEMENT: Dawda attorney Brian Balow particularly notes that there is an impact on the European Union/United States Privacy Shield Agreement, “After months of negotiations the EU and U.S. agreed on February 2, 2016 to adopt a “Privacy Shield” agreement to replace the long-standing (and invalidated) Safe Harbor that enabled U.S. entities to receive protected individual information from EU member states.  An ongoing concern of European privacy advocates has been U.S. Government access to individual information (and this ultimately led to the Safe Harbor invalidation).  This current action could impede the finalization of the Privacy Shield agreement (via “adequacy decision”), and leave U.S. companies in limbo in terms of how to handle protected individual information from the EU states.

This case, however it turns out, has ramifications for the digital privacy legal milieu far beyond the Iphone.

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