What Is FRE 902? A Reference Guide

  • Tom Wood
  • August 27, 2021

When you submit something as evidence in court, it typically has to go through a certification process to ensure authenticity. This prevents parties from submitting phony evidence, making it that much easier to ensure justice is served.

With this purpose in mind, some evidence is self-authenticating—meaning it doesn’t require expert validation. 

Generally, self-authenticating evidence streamlines the legal discovery process. Self-authentication makes it easier to bring information forward for use in court, resulting in a faster and more efficient discovery process and trial. Think of this as a fast lane for sharing evidence in court. 

The rules for self-authentication fall under Rule 902 of the Federal Rules of Evidence (FRE).

Keep reading to learn more about the FRE, why it matters, and how it impacts the legal discovery process.

What Is Discovery?

FRE 902 applies during the pretrial eDiscovery process. 

The discovery process starts before parties meet in court. First, two teams have a meet-and-confer session to set ground rules for bringing information and objects forward as evidence.

The purpose of discovery is to ensure a fast and fair trial. Discovery also helps control costs by preventing overly burdensome requests.

Discovery applies to both physical objects and electronically stored information (ESI), like pictures, charts, and graphs. ESI is shared through a process called eDiscovery.

FRE 902 applies to both tangible objects like paper documents and ESI. 

What Is FRE 902?

In brief, FRE 902 is a list of acceptable documents that don’t require extrinsic authentication. You can use this list as a reference when determining the level of authentication you need before using a document.

It’s always a good idea to check with a local court at the beginning of the discovery process to make sure you’re aligned about expectations. That way, you can secure proper authentication if you need to. 

FRE 902: An Overview 

Here is a complete list of self-authenticating items under FRE 902.

902(1): Domestic Public Documents (sealed and signed)

This can be any document bearing a seal of the United States, as well as any state, district, commonwealth, territory, or possession of the US. 

It also includes the Trust Territory of the Pacific Islands, the former Panama Canal Zone, a political subdivision of those entities, or any department, agency, or officer of these areas. 

902(2): Signed and Certified Domestic Public Documents (non-sealed)

This includes any document that bears no seal but has the “signature of an officer or employee of an entity named in Rule 902(1)(A).”

It can also include another public officer with a seal and official duties within the same entity.

902(3): Foreign Public Documents 

A foreign public document bearing the signature of an authorized person can be self-authenticating.

In this case, the document must contain a final certification that vouches for the “genuineness of the signature and official position of the signer or attester” or another similar official. 

Further, certification can come from a secretary of the US embassy or legation; by a consul general, consular agent of the US, or vice-consul; or by a “diplomatic or consular official of the foreign country accredited to the United States.”

This section also states that if all parties have an opportunity to investigate the document’s authenticity and accuracy, the court may presume it to be authentic without proper certification. Otherwise, the court can allow it to be “evidenced by an attested summary…without final certification.”

902(4): Certified Copies of Public Records 

A certified copy of a public record may include a copy of an official record or copy of a document recorded or filed in a public office.

902(5): Official Publications 

An official publication may be a pamphlet, book, or other publication originating from a public authority. 

902(6): Newspapers and Periodicals 

This refers to printed material from a newspaper or periodical. 

902(7): Trade Inscriptions and the Like

Inscriptions, signs, tags, or labels affixed in the course of business and indicating origin, control, and ownership can be self-authenticating.

902(8): Acknowledged Documents  

This may be a document accompanied by a certificate of acknowledgment lawfully executed by a notary public or other officer.

902(9): Commercial Paper and Related Documents 

Another type of self-authenticating evidence is commercial paper, a signature on the paper, and related documents. 

902(10): Presumptions Under a Federal Statute 

Presumptions under a federal statute may include a signature, document, or anything else a federal statute declares to be authentic.

902(11): Certified Domestic Records of a Regularly Conducted Activity 

This can include the original or a copy of a domestic record that complies with Rule 803(6)(A)–(C).

902(12): Certified Foreign Records of a Regularly Conducted Activity 

Certified records have to meet the requirements of Rule 902(11). It’s also necessary to structure the certification in a way that if falsely made would “subject the maker to a criminal penalty” in the country where the signature takes place.

Updates To FRE 902 

The FRE is a living and breathing rule. With that in mind, here is a breakdown of the two most recent amendments to the FRE—rules 902(13) and 902(14).

902(13): Certified Records Generated by an Electronic Process or System

This rule recognizes certified records generated by an electronic process or system producing an accurate result from a qualified person under Rule 902(11) or (12).

902(14): Certified Data Copied From an Electronic Device, Storage Medium, or File

This rule recognizes data copied from an electronic device, file, or storage medium if authenticated through digital identification. 

To put it another way: all electronic evidence must be self-authenticating. 

FRE 902(14) enables self-authentication for social media evidence under three conditions: Firstly, you have to obtain the copies through a digital identification process. Secondly, a qualified person has to submit written certification regarding digital identification. And thirdly, you have to provide reasonable notice of use to the opponent.

Streamline eDiscovery With Venio

To be successful in court, you must have a system in place for processing and managing eDiscovery data. Without the right tools in place, the process can quickly become overwhelming.

Simply put, the legal industry is becoming increasingly automated and data-driven, and teams that resist automation simply can’t keep up. 

To this end, more and more legal teams are using platforms like VenioOne, a purpose-built, cloud-based platform that streamlines eDiscovery management end to end.

 

You can use VenioOne to collect, process, analyze, store, and share large volumes of electronic evidence. The platform is especially helpful for safely culling large data sets. 

With VenioOne, you can reduce data volume without the threat of destroying evidence. Plus, all information can remain in the VenioOne platform for easy access later, streamlining work on the back end. 

Add it all up, and Venio ultimately reduces the time and cost of eDiscovery processing and preparation, giving more time for critical analysis.

Out of Touch With eDiscovery? Consider a free viewing

As a legal professional, it’s vital to stay up to date with the latest eDiscovery trends and products because information and regulations are constantly changing. Unfortunately, missing important details can have significant repercussions during a court case—worsening legal outcomes along the way.

To avoid that fate, consider brushing up on your eDiscovery knowledge by reviewing the fastest growing eDiscovery tool in the market to keep your fingers on the pulse of what’s happening in the industry.

When you’re ready to witness the power of Venio in the flesh and supercharge your eDiscovery efforts, request a free demo

This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.