New Federal Rule of Evidence to Impact Computer Forensics and eDiscovery

by John Patzakis, X1

A key amendment to US Federal Rule of Evidence 902, in the form of new subsection (14), will go into effect on December 1, 2017. This amendment will significantly impact eDiscovery and computer forensics software and its use by establishing that electronic data recovered “by a process of digital identification” is to be self-authenticating, thereby not routinely necessitating the trial testimony of a forensic or technical expert where best practices are employed, as certified through a written affidavit by a “qualified person.”

Notably, the accompanying official Advisory Committee notes specifically reference the importance of both generating “hash values” and verifying them post-collection as a means to meet this standard for self-authentication. This digital identification and verification process can only be achieved with purpose-built computer forensics or eDiscovery collection and preservation tools.

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