Authenticating a document is often just the first step in getting it admitted into evidence. Questions of authenticity usually do not impede admissibility, especially when you have a witness who can identify and authenticate the document. But what if you want to use a document as evidence in support of a motion for summary judgment or other pre-trial motion and the document came from the other side?
Fortunately, Rule 193.7 allows for self-authentication of documents produced by the other party: "a party's production of a document in response to written discovery authenticates the document for use against that party in any pre-trial proceeding or at trial unless—within 10 days or a longer or shorter time ordered by the court, after the producing party has actual notice that the document will be used—the party objects to the authenticity of the document, or any part of it, stating the specific basis for the objection."
Pre-trial disclosures—often ordered by the court—invoke this rule and are an easy way to uncover authentication issues before trial. The simplest way to authenticate documents is to send a letter that essentially says: "if you produce it, I'm going to use it." By sending this letter (though I would suggest more formal language), you put the other side on notice that you're going to use their documents against them, and that those documents will be self-authenticated unless they file specific objections in 10 days. It's that simple.
Or is it? What if the other side has produced 20,000 documents? Are you really going to use all 20,000 documents? Can you really expect them to raise authenticity objections within a 10-day period? The Rule is not clear on this. Rule 193.7 requires only "actual notice that the document will be used...." Certainly, you can raise an objection that the notice is too vague to be of any merit. But courts have yet to read any implied specificity requirement into the Rule (though one court did assume that even if Rule 193.7 had a specificity requirement, the party waived it by waiting 17 months after the Rule 193.7 notice letter was sent to object to its lack of specificity. Merrell v. Wal-Mart Stores, Inc., 276 S.W.3d 117, 131 (Tex. App.—Texarkana 2009), rev'd on other grounds, 313 S.W.3d 837).
That said, if you're not already in the habit of doing it, get that Rule 193.7 notice letter out early in every case. It may save you later down the road if you forget about authentication or run into a time crunch. You don't want a simple lack-of-authentication objection to your key evidence to sink your motion.
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