Michael J. Hutter

New York law requires an attorney who intends to offer into evidence any physical or tangible item, e.g., non-testimonial proof, to first lay a foundation of authentication. See generally Barker & Alexander, Evidence in New York State and Federal Courts (2d ed) §9.1. Authentication refers to the requirement that it must be shown that the evidence is what the offeror claims it to be. The authentication requirement cannot be overlooked by the attorney as it operates in essence as a condition precedent for all offered tangible or physical evidence. In this regard, while the foundation process can be as simple as testimony by a person with knowledge that the offered evidence is genuine or represents a particular condition, it can also be so cumbersome and complex as to require multiple witnesses and even expert testimony. In these situations, a failure to think through the foundation process can be fatal.

In 2018, the Legislature enacted two statutory provisions which address the authentication process concerning a certain type and category of offered evidence with the express intent to make the process easier as to that evidence. While the coverage is limited, attorneys frequently at trial or on a summary judgment motion seek to have the evidence admitted and considered. These statutory provisions are a new statute, CPLR 4540-a, which addresses authentication issues with respect to evidence produced in response to a discovery demand, and an amendment to CPLR 4511, which adds a new subdivision (c) addressing the authentication of digital evidence derived from web mapping or global imaging services. They will be discussed in this column.

CPLR 4540-a

CPLR 4540-a, entitled “Presumption of authenticity based on a party’s production of material authored or otherwise created by the party,” became effective on Jan. 1, 2019. L. 2018, c. 219. It provides as follows:

Material produced by a party in response to a demand pursuant to article thirty-one of this chapter for material authored or otherwise created by such party shall be presumed authentic when offered into evidence by an adverse party. Such presumption may be rebutted by a preponderance of evidence proving such material is not authentic, and shall not preclude any other objection to admissibility.

This provision was introduced at the request of the Chief Administrative Judge upon the recommendation of his Advisory Committee on Civil Practice. The legislative sponsor’s Memorandum in Support, as drafted by the Advisory Committee, states the statute’s intent: “to eliminate the needless authentication burden often encountered by litigants who seek to introduce into evidence documents or other items authored or otherwise created by an adverse party who produced those materials in the course of pretrial discovery.” Memorandum, A6048, 2017-2018 Legislative Session, p. 1.

CPLR 4540-a codifies and amplifies a common law authentication rule recognized and applied by the Third Department in Arbour v. Commercial Life Ins. Co., 240 A.D.2d 1001 (3d Dep’t 1997). As the Memorandum in Support states, Arbour has been overlooked by practitioners and courts. Memorandum at p. 1.

In Arbour, plaintiff commenced an action against defendant insurer who had issued a group disability insurance policy to his employer, alleging defendant failed to pay the amount available to him under the policy for his disability. Defendant asserted plaintiff’s disability was not covered by the policy. On its motion for summary judgment, defendant submitted discovery responses by plaintiff consisting of unsworn medical records and reports. Supreme Court denied the motion, concluding the unsworn documents were inadmissible and thus could not be considered. The Third Department reversed. In a unanimous opinion authored by the late Judge John T. Casey, the court concluded the records were admissible over an authentication objection as they “were submitted by plaintiff in response to defendant’s discovery demands and constitute the records and reports of plaintiff’s own doctors. Id. at 1002. This holding, referred to as the “doctrine of authentication by production,” recognizes that documents are authenticated when produced by the party against whom they are offered. See Noonan, “Streamlining Evidence: Alternative Methods of Authenticating Medical Records in Tort Actions,” 80 N.Y. St. B.J. (May 2008, p. 30).

This doctrine is a sensible one and it was wise for the Legislature to codify and implement it in CPLR 4540-a. In this regard, where the document request is descriptive of what is sought, the act of production in response is “akin to an admission that the producer is the author.” Alexander, Practice Commentaries to CPLR 4540-a, McKinney’s Cons. Laws of New York, 2018 Supplement. In these circumstances, any further resort to the rules of authenticity requiring proof by the adverse party that the document or documents are what the party says it is when offering into evidence is an inefficient waste of time and money.

Turning now to the specifics of CPLR 4540-a, it creates a presumption of authenticity for any “material” produced by a party in response to a discovery demand made pursuant to article 31 of the CPLR, including CPLR 3111 and CPLR 3120. Thus, the provision covers not only documents in written form but also digital records, as well as photographs and tangible items. See Siegel and Connors, New York Practice (6th ed.) §362.

The material requested and produced to come within the presumption must have been “authored or otherwise created” by the producing party. Thus, a party’s production of material created by a third-party, e.g., an e-mail received by the producing party in the ordinary course of business and kept in its files, would not qualify for the statute’s presumption. In such a situation, when the material is offered against the producing party, resort to the common law rules of authentication would be necessary to establish its authentication. Alexander, supra. See also Broadspring v. Congoo, 2014 U.S. Dist. LEXIS 177838, at 8-9* (S.D.N.Y.) (Furman, J.) (doctrine of authentication by production may serve as a basis to authentic the third-party emails). Notably, the statute does not preclude resort to other means of authentication.

It should also be noted the statute does not apply when the producing party offers into evidence the material the party produced in response to a demand. In such a situation the producing party would need to resort to the common law rules of authentication to authenticate the material. It has been argued that the doctrine of authentication by production could be invoked in this situation. Noonan, supra, p. 31.

The presumption created by the statute is rebuttable. Fairness to the producing party supports this treatment of the created presumption. In this connection, the production may be so voluminous that it would be unreasonable to conclude the production is a concession of authenticity for every item produced. Moreover, where the party’s discovery obligations may require the party to produce an unauthentic item, such as a forged letter, in the party’s files, production in these circumstances should likewise not be deemed a concession of authentication.

To rebut the presumption, the statute requires the producing party to establish the material produced “is not authentic.” This can be done by evidence of forgery, fraud or some other defect in the material’s purported authenticity. The quantum of proof necessary to establish the material as not authentic and thus rebut the presumption is a preponderance of the evidence. Thus, a “mere naked objection” without any supporting proof will not be sufficient to rebut the presumption, as expressed in the Memoranda. Memoranda, p. 2.

As the statute does not provide otherwise, whether the opposing party’s rebutted evidence, taken at face value, is sufficient to meet its burden of proof would appear to be, as with most presumptions, a question of law for the court; and if it is legally sufficient, whether the presumption is in fact rebutted may be either a question of law for the court to decide or a question for the jury. See 1A NYPJI (3d ed.) Comment to PJI 1:63. Courts in the future will need to address and resolve this issue.

CPLR 4511(c)

L. 2008, c. 516, §1, effective Dec. 28, 2018, added a new subdivision (c) to CPLR 4511(c), entitled “When judicial notice shall be taken on a rebuttable presumption.” It is applicable in both civil and criminal actions.

Its first two sentences provide as follows:

Every court shall take judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption that such image, map, location, distance, calculation, or other information fairly and accurately depicts the evidence presented. The presumption established by this subdivision shall be rebutted by credible and reliable evidence that the image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool does not fairly and accurately portray that which it is being offered to prove.

The remaining part of subdivision (c) sets forth the procedural requirements governing how and when the proponent may invoke the rebuttable presumption provided for, and the manner which the opposing party may object to the request. Curiously, this new provision establishing the rebuttable presumption for digital map images and related digitally created information was inserted in CPLR 4511 whose caption is “Judicial Notice of Law,” instead of a stand-alone new CPLR provision.

Attorneys frequently resort to Google Maps, Google Earth, Google Earth Pro and other web mapping services for finding visual information for specific locations involved in litigation, often for multiple dates, as well as related information such as distances between locations and travel times. See generally Hamilton, “A New View with Google Earth,” 54 Trial (January 2018), p. 56. The question that arises is how does the attorney get the digital image admitted into evidence? Especially problematic is how does the attorney authenticate the digital image. To satisfy the authentication requirement attorneys would rely upon the common law rules governing authentication of photographs (see Barker, supra, §11:9.) or ask a court to take judicial notice of the reliability of the digital mapping service and that its produced images and related information is accurate (see Hutter, “Judicial Notice of Website Information,” N.Y.L.J., June 2, 2016, p. 3, col. 1.). However, the resort to the former method may entail considerable expense, and as to the latter the New York courts have not addressed the issue.

Aware of this situation, the Legislature amended CPLR 4511 by adding subdivision (c) to permit judicial notice to serve as a basis for the authentication of digital mapping images and related information. The basis for such action was its view that the mapping services produced reliable and accurate information, as held by numerous federal courts and approved by commentators. The Committee Report was greatly influenced by a law review article, Bellin and Ferguson, “Trial By Google,” 108 Nw. U. L. Rev. 1137 (2014). Senate Committee Report S9061, 2017-2018 Legislative Session.

Subdivision (c) creates a rebuttable presumption that a digital image and related information taken from a digital mapping service “fairly and accurately depicts the evidence presented.” This presumption is created by a party asking the court to take judicial notice of the offered digital evidence. No evidence needs to support the request or other action taken to create the presumption.

As the presumption created is rebuttable, the opposing party is given the opportunity to introduce evidence to rebut the presumption. Its burden is to introduce “credible and reliable” evidence that the offered digital evidence does not “fairly and accurately” depict what it is being offered to prove. This burden is governed by specific procedural time frames.

If there is no objection to the request or if the court determines that the offered rebuttal evidence was insufficient to rebut the presumption, the court is mandated to take judicial notice of the digital evidence, and the evidence is thereby admitted. While subdivision (c) does not specify the effect which should be given to this judiciously noticed evidence, under New York Law the information contained in the evidence would in a civil action be conclusive and the jury must so accept it. However, in a criminal action only an inference can be drawn from the information, which the jury may accept but is not required to do so. See, Barker, supra, §2:6.

Conclusion

These two discussed CPLR article 45 amendments do not change the basic standards for authentication of evidence that comes within their scope. Rather, they change the manner in which the proponent’s submission in support of the authenticity of the offered evidence can be made. They provide, in short, easier methods of authentication for the types of evidence they encompass. They are of great assistance to the attorney, not only at trial, but in summary judgment motions.

Michael J. Hutter is a professor of law at Albany Law School, and is special counsel to Powers & Santola. He is currently serving as the Reporter to the Guide to NY Evidence, which is being prepared by the United Court System’s Guide to NY Evidence Committee. The Guide is accessible to the bench and bar at www.courts.state.ny.us/JUDGES/evidence.