In a recent annual Federal Bench Bar Conference in Philadelphia, a U.S. District Court judge warned of the perils of allowing clients to perform their own data and document collection. As the judge wisely pointed out, this can be problematic as the lawyers owe a duty to the court to represent truthfully and accurately. If, for example, a client performed the data collection without proper supervision, the lawyer could not accurately represent that all responsive documents have been collected and produced. The 2015 amendments to Federal Rule of Civil Procedure 37 provide dire consequences for failing to preserve electronically stored information (ESI), including monetary sanctions, dismissal of a claim, judgment in favor of the prejudiced party, suppression of evidence and adverse inference instructions. The recent changes to Federal Rule of Evidence 902, which addresses self-authenticating evidence, and is routinely relied on by civil trial lawyers, raises additional concerns with clients performing their own data collection.

Self-authenticating evidence under Rule 902 is evidence that requires no extrinsic evidence to prove that it is what it purports to be. Common examples of self-authenticating evidence include newspapers, periodicals, signed and sealed public documents, and official publications. While the amendments to Rule 902 were created to address the unnecessary expense and inconvenience associated with having live testimony from multiple witnesses solely to authenticate electronic evidence, they also provide guidance on ESI collection and resolving authentication issues relating to ESI before trial.

Amendment to Rule 902

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