The Real (Legal) Deal

by Julie Gable

TABLE: The Federal Rules of Evidence (PDF, 324K)

What do the Antiques Roadshow and the U.S. judicial system have in common? Both rely on authenticity, the ability to show that an object — whether tangible or electronic — is what it seems to be. Proving that a Lincoln letter is real requires examining the paper it's written on, analyzing the signature, date and subject matter, and determining how the letter came to its possessor. Convincing courts that electronic documents are trustworthy takes some doing as well.

The Federal Rules of Evidence (see table) govern what records can be admitted in legal processes. Evidence must be authenticated: that is, proven to be real by having the author, the signor or someone knowledgeable testify that the record is genuine.

The irony is that plaintiffs use your records, gathered during discovery, against you. They authenticate them by putting your records manager on the stand to attest that the documents are authentic. Meanwhile, in order to use your own records in your own defense, you must show that they are trustworthy: that is, that the records aren't manufactured for the occasion, they adequately represent the facts they claim, they are complete and they have not been altered.

For electronic records, the court looks at the process or system by which the records were made, how they've been kept, what policies are in place and what practices are followed. Just like a Lincoln letter, the chain of custody can have a bearing on whether records are considered real: Documents kept in a special place like a public office, treasury or archives are often assumed to be authentic — an idea that dates back to the sixth century.

A secure vault for electronic records, then, is appealing on several levels. EMC's Centera Compliance Edition is designed to store fixed content, offering unique capabilities for assuring that records remain protected and unassailable. Once a record created by a content application is finalized, it can be stored via an API in Centera. Centera creates a content descriptor file that contains metadata about the record, then uses algorithms to hash the record's content into a digital fingerprint that serves as the content address. The content address (that is, the hash) gets passed back to the application that created the content. Metadata in the content descriptor file can include retention periods assigned to the record. The stored record is nonrewritable throughout the retention period.

Centera assures that only one copy of a record is stored by comparing the digital fingerprints of incoming documents. If the hash is exactly the same, Centera stores another pointer, not another copy. It's therefore possible to have multiple content descriptor files with different retention periods pointing to the same record — a good thing for regulated industries where one record may have multiple custodians. The record will remain nonerasable until the longest retention period expires.

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