Proposed Rules Archives

• Proposed Changes to ER 901 - Requirement of Authentication or Identification (in Word Format)
• Comments Received for ER 901 - Requirement of Authentication or Identification

Suggested Amendment

SUPERIOR COURT EVIDENCE RULES
ER 901 – Requirement of Authentication or Identification
(Clarifying procedures for establishing authenticity of e-mail at trial)

Submitted by the Board of Governors of the Washington State Bar Association

A. Purpose: One of the most debated questions among judges is the method by which e-mail should be authenticated at trial. ER 901(a) sets forth the general test of authenticity: The proponent of an item must produce evidence sufficient to support a finding that the item is what its proponent claims it to be. The threshold for authenticity is satisfied as long as there is enough evidence for a reasonable juror to find that the item is genuine (or in the case of illustrative evidence, that it fairly and accurately depicts what it is claimed to illustrate). ER 901(b) presently identifies nine examples of how items may be authenticated by way of illustration. The most common techniques are those identified in ER 901(b)(4) (e.g. authentication through the item’s distinctive characteristics). However, ER 901 does not directly address authentication of electronic communications.

The rule could be interpreted as meaning that the same rules apply to e-mail that apply to authentication of any other document. If so, then the authentication of e-mail is fairly simple. The witnesses who received the e-mail would testify that they recognize it, that they received it on the specified date, and that they know who sent it because of either the heading or because the e-mail is part of a string of communications. The context and subject matter discussed within the e-mail might also provide evidence sufficient to establish authenticity where the content is of a nature that only a particular sender would know.

The suggested amendment to ER 901 would introduce an illustration to clarify the requirements for authenticating an e-mail at trial. The suggested rule requires that a person with knowledge that the e-mail was created by a particular sender, the e-mail was sent from address associated with that sender, and the distinctive characteristics of the e-mail taken in conjunction with the circumstances are sufficient to support a finding (by a reasonable jury) that the e-mail is what the proponent claims.