Legal Memorandum: Re-authentication of Documents at Trial

Issue: Under he Federal Rules of Evidence, must a party re-authenticate at trial documents produced by the other party during discovery?

Area of Law: Litigation & Procedure
Keywords: Authentication or identification requirement; Documents or evidentiary items
Jurisdiction: Federal
Cited Cases: 174 F. Supp. 2d 1337; 131 F.3d 558; 106 F.3d 709; 557 F.2d 1039; 475 U.S. 574; 715 F. Supp. 974; 213 F. Supp. 2d 1146; 924 F. Supp. 1511
Cited Statutes: Fed. R. Evid. 901(a); Fed. R. Evid. 104(b);
Date: 03/01/2004


Authentication, Wigmore explains, is not a rule of admissibility.  Rather, it is a rule of sufficiency.  VII Wigmore on Evidence § 2129, at 695 (Chadbourne Rev. 1978).  The authentication or identification requirement is therefore “a condition precedent to admissibility [which] is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Fed. R. Evid. 901(a).  Because the requirement that an evidentiary item be authenticated or identified is a condition precedent to its admission, it is governed by Rule 104(b).  See Fed. R. Evid. 901 advisory committee notes.  That rule provides: “When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”  Fed. R. Evid. 104(b).  Significantly, if “sufficient” evidence is presented and is otherwise admissible—questions determined by the court—the evidence is admitted, and the jury determines whether the condition has been fulfilled.  If sufficient evidence is not presented to fulfill the condition, the judge is to withdraw the matter from the jury’s consideration.  Fed. R. Evid. 104 advisory committee notes.

The proponent’s burden of proof is slight, United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir. 1994), and circumstantial evidence may be used, McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985).  “The proponent . . . needs only make a prima facie showing that the exhibit is […]

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