Satisfying ESI Evidence Rules and Admissibility Standards
Editor’s Note: Identifying key digital evidence is only half the battle—ensuring that evidence is admissible in court is what ultimately matters. This article examines the legal standards that govern whether electronically stored information (ESI) can be used at summary judgment or trial. Through the lens of United States v. Allen, it highlights how courts assess authentication and hearsay exceptions under the Federal Rules of Evidence, and how certifications can help meet those thresholds. With rules evolving to address AI-generated content, this piece offers essential insight for legal professionals aiming to turn discovery into admissible evidence.
Satisfying ESI Evidence Rules and Admissibility Standards
By Phil Favro, Contributing Author for HaystackID
Litigation and discovery are often characterized by unwritten maxims and rules. One such maxim is that there is little sense fighting to obtain key information in discovery if a party cannot use it as evidence when it counts most, such as at summary judgment or trial.
At summary judgment and trial, evidence must be admissible.[1] The Federal Rules of Evidence (“FRE”)—not the Federal Rules of Civil Procedure—provide the framework for admissibility in federal court. Courts determine admissibility, with information being admissible if the proffering party satisfies certain evidentiary predicates. Those predicates include relevance, authentication, original documents, hearsay, and policy exclusions.
Certain predicates—such as authentication—are not that difficult to meet. Nevertheless, courts rigorously enforce these evidentiary standards, potentially excluding key information that could support a claim or defense.
For example, a federal court in Chicago last year rejected a defendant’s reliance on a spreadsheet in support of its summary judgment motion. In Hossfeld v. Allstate Ins. Co., the court found the spreadsheet was inadmissible hearsay and had not been authenticated. As a result, the court denied the defendant’s request for summary judgment on a claim that relied on the spreadsheet evidence.[2]
In contrast, the U.S. Court of Appeals for the Ninth Circuit recently spotlighted the admissibility of key social media platform evidence supporting a defendant’s conviction in a criminal case. In United States v. Allen, the court held that screenshots from the defendant’s Facebook account were properly authenticated and satisfied exceptions to the rule against hearsay.
Allen reinforces the need to ensure evidence obtained in discovery is actually admissible when the time comes for presenting the information to a court. In addition, Allen offers guidance to parties when conducting discovery to better ensure documents can pass evidentiary hurdles like authentication and hearsay rules. Beyond Allen, counsel should stay current with evidentiary rules affecting ESI admissibility, particularly with rules changes afoot that would address admissibility concerns related to AI.
Allen—Meeting Authentication and Hearsay Standards
Allen involved a criminal prosecution against a defendant (Allen) and his associates for allegedly running an illegal drug and firearm distribution network in the Spokane, Washington area. Allen, whom the Ninth Circuit characterized as having “a long criminal history,” was arrested by federal law enforcement agents “with a loaded 9mm handgun in his pocket” after a grand jury indicted him on charges of distributing methamphetamine and possession of a firearm as a convicted felon.
The Conviction and Appeal
At trial, the government presented evidence from Allen’s Facebook account that connected him to the crimes at issue. The evidence included screenshots taken of Allen’s Facebook account and which were produced in response to the government’s search warrant. The jury issued a guilty verdict and the court sentenced Allen to 15 years in prison. He filed an appeal and challenged (among other things) the trial court’s decision finding the Facebook screenshots were admissible. Allen argued that the screenshots were not properly authenticated and failed to meet other admissibility standards.
The Ninth Circuit rejected Allen’s arguments and concluded the trial court properly admitted the Facebook records. In particular, the Ninth Circuit found that the government properly authenticated the Facebook records and the trial court did not err in admitting the screenshots into evidence.
Authentication
To properly authenticate evidence under the FRE, the party seeking to have the evidence admitted “must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”[3] There are any number of methods a party can use to authenticate evidence. The traditional method for doing so is to introduce witness testimony or other evidence substantiating the genuineness of the information at issue.[4] Some information or records are considered “self-authenticating” under FRE 902. For self-authenticating records, the “authenticity” or genuineness of the documents is deemed established because there is such a low possibility that the records are not genuine.
The bar for authenticating evidence is low, though courts typically require a proffering party to substantiate that the evidence at issue “is what it purports to be.”[5]
Self-Authentication under FRE 902(11)
In Allen, the Ninth Circuit determined that the Facebook screenshots satisfied the self-authentication standard because the screenshots were “Certified Domestic Records of a Regularly Conducted Activity” under FRE 902(11). This begs the question: what are Certified Domestic Records of a Regularly Conducted Activity?
As the Ninth Circuit observed, these are records that: (1) memorialize an action that an organization took; (2) were generated contemporaneous with the time the organization took that action; and (3) creating the records was a regular practice associated with the action at issue. For purposes of FRE 902(11), the proponent—in this instance, the government—must introduce a “certification” from the organization’s custodian of record to substantiate that showing.
The Ninth Circuit determined that the government’s introduction of the Facebook screenshots met these requirements. The government provided a certification from a Facebook custodian indicating that (among other things) Facebook took screenshots of Allen’s account in response to the government’s search warrant and contemporaneous with the time that Allen posted the incriminating information on his account.
The screenshots could still have been considered inadmissible hearsay. Nevertheless, by meeting the requirements of FRE 902(11), the government simultaneously satisfied the business records exception to the hearsay rule under FRE 803(6).
Authentication under FRE 901
The Ninth Circuit also concluded that authentication was proper under FRE 901. The government introduced evidence sufficient to establish authenticity based on the “Distinctive Characteristics” associated with the Facebook screenshots. Under FRE 901(b)(4), this refers to the “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”
The Ninth Circuit identified various aspects of the evidence that made clear the screenshots were genuine and actually taken from Allen’s Facebook account: “the Facebook profile photograph in the Facebook records matched Allen’s appearance, the user had the same birthday as Allen, and the messages referred to Allen’s drug dealer moniker (‘Ghost’) and cell phone number.” All of which were sufficient to establish authenticity under FRE 901.
Other Evidentiary Challenges
The Ninth Circuit found Allen’s other evidentiary challenges to the Facebook screenshots lacked merit. In response to Allen’s contention that the screenshots were impermissible character evidence, the court determined that the government introduced the screenshots to establish his identity as the user of the Facebook account in question. The court also rejected Allen’s position that the screenshots were unduly prejudicial, concluding that the trial court required the government to redact references from the screenshots that could be considered “unfairly prejudicial” and thus limited the information in the screenshots to identifying Allen’s identity.
Lessons from Allen for Handling Discovery
At first glance, Allen may seem inapposite to issues relating to the discovery process given its focus on ESI evidence in connection with a criminal prosecution. Nevertheless, Allen provides instructive guidance on the need for parties to proactively consider during discovery how they are going to subsequently present evidence at summary judgment or trial.
To ensure that information sought in discovery is more likely to be admissible as evidence, parties should ensure that they obtain supporting information that can help them meet authentication and hearsay requirements. Like the government in Allen, parties may consider obtaining a certification from a records custodian to support self-authentication of ESI such as records from social media, email, or other accounts or applications. As Allen teaches, proper certifications should satisfy the hearsay requirement for business records, too. And certifications can meet alternative authentication requirements including records that an electronic process or system generates or that have been copied from an electronic device, storage repository, or file.[6]
There are other methods parties may use during discovery to meet authentication requirements. Parties may request that adversaries stipulate to the authenticity of certain ESI. If stipulations are not forthcoming, parties can serve requests for admission that seek to establish the genuineness of certain electronic data. They can also establish authenticity through depositions, too.
A final note on ESI evidentiary issues—and one which parties and legal professionals should stay abreast—is the advent of evidence rules changes to address issues arising from the use of AI. For example, federal rules makers have advanced proposed FRE 707, which would allow courts to apply expert witness screening requirements as an enhanced gatekeeping tool to screen out questionable AI evidence. The FRE advisory committee released the proposed rule for public comment during the summer; public comment on the proposed rule closes in mid-February 2026. Being aware of what happens with proposed FRE 707 and parallel state rule proposals is advisable as rules changes may also impact how information obtained in discovery is ultimately presented at summary judgment and trial.
About Phil Favro
Phil Favro is the founder of Favro Law PLLC, where he counsels clients on ESI, AI, and discovery issues and serves as a special master, mediator, and expert witness. Phil is nationally recognized for his expertise on ESI, discovery, and information governance, with courts acknowledging his credentials. See, e.g., Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2025 WL 2061665 (S.D.N.Y. July 23, 2025). This background makes Phil particularly well-suited to counsel clients and advise courts on information-related issues. As a special master, Phil is acclaimed for his collaborative approach, working with parties to find stipulated solutions to complex issues. For disputes that require adjudication, he is renowned for the clarity and vigor of his written dispositions, which are available on legal search engines.
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[1] Even though the FRCP permit discovery of inadmissible evidence, they do not make it admissible at trial. Compare Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence to be discoverable.”), with Fed. R. Evid. 401, 402 (indicating that irrelevant evidence is inadmissible and relevant evidence is generally admissible if it has probative value and is material to the disposition of the case at hand). [2] See Hossfeld v. Allstate Ins. Co., 726 F. Supp. 3d 852 (N.D. Ill. 2024). [3] Fed. R. Civ. P. 901(a). [4] See Fed. R. Evid. 901(b). [5] Dominguez v. Weiser Sec. Servs., Inc., No. CIV-21-653-SLP, 2024 WL 3706499 (W.D. Okla. Aug. 7, 2024). [6] See Fed. R. Evid. 902(13)-(14).