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

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