Legal Considerations for Electronic Evidnece in the U.S.

This post will be the first in a series  that will cover some of the legal considerations surrounding the admissibility of electronic documentation as legal evidence in the United States.  Though the legal considerations aren’t the same internationally, I imagine many of the same issues have to be confronted in the international courts as human rights cases enter the judicial process and an increasing amount of evidence is created electronically.

This first post in the series provides and overview of a judicial opinion from the Circuit Court of Maryland that lays out the issues of admissiblity for electronic evidence and summarizes the main points I see as important for thinking about from the perspective of archiving and preservation.  Subsequent posts will focus on specific issues in detail in order to present issues that might be worth considering as we think about archiving and preserving electronic evidence of human rights issues, cases, and abuses.  Please feel free to comment on and discuss these issues here in the blog as I get them posted!

–Sarah

One of the questions in the Human Rights Electronic Evidence Study concerns how electronic human rights documentation can serve legal needs as cases move into local, national, or even international courts.  Judicial processes are necessary for bringing closure to victims, seeking justice from perpetrators, establishing legal protections for basic human rights, creating democracy, and establishing a means of making reparations for losses and suffering.

A  judicial opinion that came out of the District Court of Maryland in May  of 2007 takes us a good step toward understanding how electronic documentation can be admitted as evidence in support of legal cases.  Written by Paul W. Grimm, Chief United State Magistrate, the opinion addresses a fairly straightforward insurance arbitration case that would not normally require an elaborated opinion, but problems arose concerning the admissibility of email as evidence to support both the plaintiff’s and the defendant’s claims.  Judge Grimm therefore took advantage of his decision in the case to pull together a  body of extant case precedent regarding the admissibility of electronic evidence to serve as a resource for future cases.  In doing so, Judge Grimm recognizes that–as more and more documentation is created, stored and shared electronically–the court needs to have a set of expectations in place for establishing the validity of  electronic documentation, or “electronically stored information” (ESI).  Though this case does not deal with human rights issues, the processes and protocols that Judge Grimm pulls together can serve human rights cases  as parties seek to admit electronic evidence to support their cases.

The opinion is quite long at 101 pages (thus the need to address it in several posts) and identifies five key issues that counsel must address when submitting ESI as evidence in legal proceedings.  These issues apply to all forms of documentation that could potentially serve as evidence, but most importantly for our purposes, the opinion explains how standing Federal Rules of Evidence can be interpreted to apply to electronic evidence.  The basic argument is that the courts are already well-equipped to handle electronic evidence–there is no need for new rules and procedures.    The five issues focus on how counsel must establishing the following when submitting documentary evidence:

1. the relevance of ESI
2. its authenticity
3. that the content of the ESI is not hearsay
4. that the document is either an original or and acceptable duplicate
5. that the document does not introduce unfair prejudice into the case

Jack R. Lorraine and Beverly Mack v. Markel American Insurance Company, Civil Action No.: PWG-06-1893, Memorandum Opinion, District Court of Maryland

The plaintiff and defendant in this case have asked the court to decide on the enforcement of an arbitration decision vis-a-vis insurance coverage of lightning damage to a yacht.  The defendant, Markel American Insurance Company, while accepting the arbitration in favor of the plaintiffs (Lorraine and Mack, the owners of the yacht in question), argues that the arbitrator overstepped his authority regarding awarding monetary damages.  The case is thus about a matter of arbitration procedure, but the judge has dismissed both parties’ motions without prejudice because they both failed to properly establish the authenticity of email documentation as evidence to support their cases.  The judge therefore has taken advantage of the case as an opportunity to pull together a comprehensive opinion concerning the procedures necessary for submitting such evidence and having it stand up in a court of law.  As stated in the opinion:

Because neither party to this dispute complied with the requirements of Rule 56 that they support their motions with admissible evidence, I dismissed both motions without prejudice to allow resubmission with proper evidentiary support.  (Paper No. 26).  I further observed that the unauthenticated e-mails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium.   Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.  Although cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence.  Because there is a need for guidance to the bar regarding this subject, this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case.  It is my hope that it will provide a helpful starting place for understanding the challenges associated with the admissibility of electronic evidence.

The main issue at question in this case was that the parties failed to establish the authenticity of their electronic evidence (a point to be elaborated later in this series), but from an archiving point of view, interesting issues regarding metadata were raised in the process of determining how to establish the authenticity of an electronic document.  As I read the opinion, the points I gleaned concerning metadata and electronic documentation were as follows:

1)       Metadata provided by electronic processing are useful and when available should be taken as proof of authentication (following the Sedona Guidelines: Best Practices in Managing Electronic Information–a .pdf is also available for download here).

2)       However, metadata constantly change as electronic platforms change, and judges are no more qualified to determine authenticity in the face of ever-changing technology than are other technology lay people, so admissibility must more often be determined by affidavit, witness statements to the veracity of the document, or any number of non-metadata related processes for authentication (these processes will be elaborated in subsequent postings in this series).

3)       The majority of admissibility appears to be determined through the processes listed in number 2 above, using as precedent a number of Federal Rules of Evidence (104 a&b, 901, 908, 403, 405) that were designed for paper evidence and extended to electronic evidence.

The general sense, then, is that there is actually no expectation by U.S. courts for standards of metadata because said metadata are constantly shifting and no one can keep up, so the goal is to treat electronic evidence as we would paper evidence in determining authenticity and admissibility.  This fact that the courts have low expectations for metadata in electronic evidence potentially raises some interesting issues and discussions in human rights documentation and archiving–issues that would be good to engage here in follow up discussions related to the posts.

The next post will focus on establishing the relevance and authenticity of electronic documents.