Federal Court Issues Magistrate Judge David Sanders, Northern District of MS - PowerPoint Presentation

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Federal Court Issues

Magistrate Judge David Sanders, Northern District of MSDistrict Judge Keith Starrett, Southern District of MS

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2019 Annual Meeting & Summer School for Lawyers

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Residual Exception to Hearsay (Rule 807)

Authentication of EvidenceSelf-Authentication of Electronically Generated Records

Self-Authentication of Data Copied from an Electronic Device, Storage Medium, or File

*Some information taken from 2019 Fifth Circuit Judicial Conference Presentation on Electronic Evidence by Hon. Paul V. Grimm, Hon. Karen Wells Roby, Andrew R. Lee, Esq., and Gregory P. Joseph, Esq.

Issues

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Effective Dec. 1, 2019

Fed R 807

Residual Exception

Rule 807 Residual Exception

a)

Under the following conditions circumstances

, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804:

1)

the statement

has equivalent circumstantial is supported by sufficient guarantees of trustworthiness

—after considering the totality of

circumstances under which it was made and evidence, if any,

corroborating the statement; and

2) It is offered as evidence of a material fact;23) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.; and4) Admitting it will best serve the purposes of these rules and the interests of justice.

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Rule 807 Residual Exception

Notice. The statement is admissible only if

, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address—including its substance and the declarant’s name—

so that the party has a fair opportunity to meet it.

The notice must be provided in writing before the trial or hearing—or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

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Fed R

Evid 901(a)-(b)Authentication

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Fed R

Evid 901(a)

In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is

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Fed R

Evid 901(b)

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement: Testimony of a Witness with Knowledge

. Testimony that an item is what it is claimed to be.

Nonexpert Opinion About Handwriting.

A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.Distinctive Characteristics and the Like

. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

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Fed R

Evid 901(b)

Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker

Evidence About a Telephone Conversation.

For a telephone conversation, evidence that a call was made to the number assigned at the time to:

a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

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Fed R

Evid 901(b)

Evidence About Public Records. Evidence that: a document was recorded or filed in a public office as authorized by law; or

a purported public record or statement is from the office where items of this kind are kept.

Evidence About Ancient Documents or Data Compilations

. For a document or data compilation, evidence that it:

is in a condition that creates no suspicion about its authenticity; was in a place where, if authentic, it would likely be; and

is at least 20 years old.

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Fed R

Evid 901(b)

Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

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Fed R

Evid 902(11)

Self-Authentication of Business Records by Certification

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Fed R

Evid 902(11)

Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.

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Fed R

Evid 902(13)

Self-Authentication of Electronically-Generated Records

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Effective Dec. 1, 2019

Fed R

Evid 902(13)

Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

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Effective Dec. 1, 2019

Fed R

Evid

902(14)

Self-Authentication of Data Copied from Electronic Device, Storage Medium or File

(i.e., by Hash Function)

Fed. R

Evid 902(14)

Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

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Authenticating a Copy under 902(14)

Hash Value: “a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file.”

“If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and the copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates.”

Note: “The rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.”

*from Advisory Committee Notes to 2017 Amendments to Fed R.

Evid

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E-mail

Authentication questions focus on whether the email was sent or received by the person whom the party claims sent

or received it (authorship)Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md., 2007): District Judge dismissed case because copies of emails alone were not enough to prove authenticity.

Examples of Circumstantial evidence

: identifying information of author within email, reference to facts only purported author would know, writing style of purported author, etc.

Factors Outside of Email’s Content that can Establish Authenticity of Authorship Circumstantially:

witness testifies that author told him to expect an email prior to its arrival, purported author acts in accordance with/in response to email, author orally repeats contents of email soon after it is sent, etc.

Forensic Evidence to Support A Circumstantial Showing of Authorship:

an email’s hash values, testimony from a forensic witness that an email issued from a particular device at a particular time

Authenticating Receipt Circumstantially:

subsequent conduct of the recipient, subsequent communication from the recipient reflects his or her knowledge of email contents, email was received and accessed on a particular device in the possession/control of alleged recipient

*from Paul W. Grimm, Daniel J. Capra, & Gregory P. Joseph, Authenticating Digital Evidence, 69 Baylor L. Rev. 1 (2017).

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Proposed Amendments to MS Rules of Evidence*

902(12): Certified Records Generated by an Electronic Process or System

“A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification and notice requirements of Rule 902(11).”

902(13): Certified Data Copied from an Electronic Device, Storage Medium, or File.

“Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital information, as shown by a certification of a qualified person that complies with the certification and notice requirements of Rule 902(11).”

*notice and comment period ended June 27, 2019

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