Robert R. Jimenez, associate with Espinosa Trueba Martinez in Miami.
Robert R. Jimenez, associate with Espinosa Trueba Martinez in Miami. (Courtesy photo)

An e-discovery lawyer is not an IT specialist. Admittedly, lines often blur for many attorneys due to familiarity with measures for preserving, collecting, processing and producing electronically stored information (ESI). There is, however, a difference between understanding the law of e-discovery and applying advanced technical concepts. Lawyers who walk the tightrope of advocacy and forensics may need to reconsider their strategy because forthcoming changes to the Federal Rules of Evidence could impact actions they often take on behalf of clients, especially in smaller matters.

Federal Rule of Evidence 902 regards evidence that is self-authenticating, outlining the types of documents that require no extrinsic evidence of authenticity for admission at trial. Examples of such evidence include records kept in the ordinary course of business, certified governmental records and published newspapers. On Dec. 1, an amendment to FRE 902 will add two additional subsections relevant to e-discovery and impactful for discovery strategy.

The proposed FRE 902(13) relates to records generated by electronic or system processes that produce “an accurate result,” such as connectivity reports or functions showing how applications acquire data. Subsection 14 will be more relevant to everyday litigation, covering ESI “copied from an electronic device, storage medium or file.” Examples include typical files created by custodians of information–user-created files such as Microsoft Excel and Word documents—and, most critically, email. Both additions to FRE 902 require certification from “a qualified person,” described in committee notes as an affidavit from someone who would be able to establish authenticity through testimony at trial. This individual must by definition be an information technology practitioner because only such a person could be qualified to testify as to how data systems operate and whether information was collected through a reliable “process of digital identification.” This can lead to problems for some attorneys and their clients.

The certification requirement is an obvious opportunity for challenges in cases where attorneys with technical knowledge help their clients preserve, collect, and process ESI. While it is true that the changes to FRE 902 relate only to self-authentication, the rule is clearly laying the groundwork for what qualifies as a defensible e-discovery process in federal court. It is foreseeable that in an attempt to paint a discovery process as unreliable, some lawyers will use the standard set by FRE 902 as a sword when IT professionals are not utilized. This is most likely to occur in cases where one party is financially disadvantaged and cannot afford access to support by third party vendors. It is in this way that there is a disconnect between the rules, best practices, and the realities of everyday litigation.

What the new FRE 902 does not seem to contemplate is that attorneys who self-collect often have no choice in matters where clients cannot even afford access to ESI review platforms, much less technology specialists that monitor, certify, or perform data collection. Nearly all cases today require some amount of e-discovery but many cannot easily afford it. The new subsections help avoid expenses at trial but they do not significantly address the elephant in the room: e-discovery continues to be remarkably expensive in an age where it is becoming ever more crucial. E-discovery costs are no less than an access to courts issue in much the same way that attorney fees can be, and a new standard that relies on costly consultants undermines the spirit of Federal Rule of Civil Procedure 1: to secure the just, speedy, and inexpensive determination of every action. This is ironic given that the very changes to FRE 902 that were designed to speed up the judicial process may have the opposite effect.

It is likely that the drafters of the FRE 902 amendments never foresaw the impact that a seemingly innocuous change to a rule on self-authentication could have. Particularly with smaller clients, lawyers will continue finding themselves having to act as de facto IT specialists, and this may lead to problems if an opponent issues a challenge to how discovery was conducted. Caution will therefore be warranted in the future given that no one yet knows how the FRE 902 standards will permeate into broader e-discovery practice. As such, negotiating e-discovery protocols and conducting in-depth meet and confers under Fed. R. Civ. P. 26(f) will be more critical than before as parties can agree on a defensible process consistent with their case budgets and overall litigation strategies. Working in this way with the help of an e-discovery attorney may give parties something better than an IT specialist—it may give them peace of mind in the early stages of litigation.