New Evidence Rules to Become Effective in 2017

2016-12-30 - Federal Rule of Evidence 901 will be amended to include a self-authentication provision "ancient" ESI. Of course, how to corroborate the provenance of ESI has always been a challenge, and requires some testimony or other external corroboration. According to the Advisory Committee notes, hash functions have now entered the arena as a possible authentication methodology. What the Notes totally miss is that hash functions that operate in time-controllable environments, even those that are secure, do not anchor a trusted time source with data instantiation, ultimately enabling data manipulation that will now be presumptively authenicated for admissibility purposes. Note to practitioners: you'll need an expert's affidavit or testimony to that effect.