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New Rules for Electronic Records?
A recent decision by a Ninth Circuit Bankruptcy Appellate Panel rejected the prevailing standard for authenticating electronically stored records and imposed stringent requirements that may help defend against computerized evidence in a broad range of cases, including white-collar prosecutions. In re: Vinhnee, 2005 WL 3609376 (B.A.P. 9th Cir. Dec. 16, 2005). Although decisions of the Panel, which consists of three bankruptcy judges, are binding precedent only for bankruptcy courts in the Ninth Circuit, Vinhnee's persuasive analysis has the potential to change the use of electronic evidence in other courts.
Most federal courts admit computer records under Fed. R. Evid. 803(6) on a showing that they are business records kept pursuant to a routine procedure for reasons that tend to assure their accuracy. See, eg, United States v. Salgado, 250 F.3d 438, 452 (6th Cir. 2001); United States v. Destnik, 36 F.3d 904, 909-10 (10th Cir. 1994). Vinhnee does not conflict with that approach to the hearsay issue.
It does, however, reject the approach ordinarily used to authenticate computer records, ie, to prove they are what their proponent claims, as required by Fed. R. Evid. 901(a). Courts have generally permitted authentication of computer records in a manner similar to that used for paper records, even by witnesses with little or no knowledge of how the records were generated or maintained. See, eg, United States v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997) (FBI agent who was present at seizure of defendant's computer allowed to authenticate seized files); United States v. Moore, 923 F. 2d 910, 914, 915 (1st Cir. 1991) (electronic records authenticated by telephone company billing supervisor).
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