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New evidence rules for federal court go into effect

Business professionals take note: There have been some changes in what it takes to authenticate electronic evidence so that it can be used in a federal court.

The changes are part of the new Federal Rules of Evidence (FRE) for 2018, although they actually took effect Dec. 1, 2017. While several rules were amended, Rule 902 is the focus here.

In summary, the new changes to FRE Rule 902 end the need to bring a human witness into court to authenticate many items of electronic evidence.

This is of particular importance to a lot of business owners because business litigation often ends up under federal jurisdiction -- either because it involves parties from more than one state or the amount of money involved.

Under the old Rule, in order to make sure that electronic evidence was admissible to court -- whether it was something like a certified record on a computer printout or data taken from a computer file -- there had to be a living witness that could authenticate it. For example, the witness would be required to testify that he or she printed out any emails being used as evidence without alterations. Similarly, the witness might have to testify that an electronic file being used is the correct and unaltered electronic file.

This, quite naturally, put litigants through a lot of expense. Most of that expense has become unnecessary. In many cases, it is simple enough to tell that a document is legitimate -- either because of certifications placed on it at the time it was generated or digital fingerprints that attest to its unaltered state. Prepping a witness and having him or her ready and waiting at the courthouse only to have the opposition stipulate to the authenticity of an item was both frustrating and costly.

The new rule, along with some other changes made to the FREs, is expected to make litigation in the digital age much less expensive than it has been -- and smoother at trial. The parties involved can communicate their intentions to raise a challenge to a piece of evidence's authenticity in advance of any trial if necessary.

While the changes seem relatively small, for those involved in often tedious and costly business disputes, this is definitely a cause for celebration.

Source: rulesofevidence.org, "Federal Rules of Evidence Amendments for 2018," accessed Dec. 21, 2017

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