Welcome to Module 3-C.
The Foundations of Digital Evidence.
By now you are familiar with the EDBP ten-step model of e-discovery legal work. It may surprise you to know that the last step of this model, Evidence, is not part of the discovery process at all. Instead, it is the key activity related to e-discovery. The last step follows the nine steps of actual e-discovery legal work (shown below). The last step, the Tenth Step, is governed by the rules of evidence, not procedure. That is where George Paul’s book, Foundations of Digital Evidence (ABA 2008), makes a valuable contribution to U.S. jurisprudence. This module goes over the basic ideas in Paul’s book and ESI evidence issues.
The essence of Paul’s book is that the old paper-based rules of evidence are inadequate to deal with today’s world of digital information. Just like we now have new rules of civil procedure to govern the discovery of electronic information, we also need new rules of evidence to govern the admissibility of electronic information at trial. Paul’s book explains why. He does so using all of the considerable intellectual tools and knowledge at his command, including history, philosophy, jurisprudence, computer science, and most importantly, pragmatic skills and knowledge learned the hard way from 26 years of practicing law as a trial attorney.
Before I go into more detail about Foundations of Digital Evidence, I want to show how digital evidence fits into the overall scheme of e-discovery. Hopefully, this explanation will provide context as to why I consider Paul’s work on the Tenth Step of the EDBP (Electronic Discovery Best Practices) to be important, not only to e-discovery, but to the whole body of the Law.
The Tenth and last step of the EDBP is Evidence. It comes after the discovery process is completed. In spite of this fact, I strongly agree that Evidence should be included in the e-discovery work-flow model. If you discover information, and it is not admissible as evidence, or is discounted as untrustworthy and given little weight, then the whole exercise of discovery has been pointless. This is exactly what happened to the parties in Judge Grimm’s landmark case on ESI evidence, Lorraine v. Markel American Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007).
As a “reformed trial lawyer” myself (to borrow a phrase from Craig Ball), I know full well that if discovery is not done right, the information you uncovered at such great expense and effort may never be seen by anyone. Even if it is considered, it may not be given much importance; or, from the other side’s perspective, it may be given much more weight than it deserves.
Foundations of Digital Evidence
This last point is at the heart of George Paul’s book: Foundations of Digital Evidence. The rules of evidence govern the Tenth Step of Presentation when the information is offered in a court of law. The rules may be ignored or winked at in arbitration and mediation, and may be unknown to the rest of the world which typically has a more active and discretion-laden judiciary. But in U.S. courts, the evidence rules govern the admissibility, or not, of information into evidence. Only if information is allowed into the record as evidence may it be considered by a judge or jury. Further, information may often only be allowed in “for what it is worth,” a common phrase in any bench trial. Then the arguments as to “probative value” of the evidence are in the forefront. What value does this evidence have to the proof of your case?
George Paul’s book is a gold mine of ideas for trial lawyers who may need to support or attack the probative value of electronic evidence at trial. Young trial lawyers especially should read this book to try to understand the emerging impact of electronic information on rules of evidence. But Paul’s ideas and information are also of great value to e-discovery focused lawyers such as myself for much the same reason. We need to present ESI to trial lawyers that is credible, with strong indices’s of authenticity, so that it will be not only be admitted into evidence, but have strong persuasive value. That will help our clients to win the case or achieve a favorable settlement. Further, trial counsel will turn to e-discovery lawyers for advice on how to attack the worthiness of the opposing party’s digital evidence. Was it collected properly so as to be authenticated? Is there some question as to its bonaficity so as to discount its probative value, even if it is admitted into evidence?
Evidentiary Arguments Should Become the New Focus of Adversarial Contests
As I have frequently discussed before, discovery must and will inevitably shift to a more cooperative model. The volume and complexity of ESI demand cooperation as a practical matter. Also, as Judge Grimm has shown in Mancia v. Mayflower Textile Services Co. the rules governing discovery also demand cooperation. The Sedona Conference and others are pushing hard for U.S. lawyers to adopt this new paradigm in discovery. But, unlike other groups that are pushing for Alternative Dispute Resolution, we are not pushing for the elimination of the public adversary process all-together. We believe in the civil justice system and are looking for ways to improve it, not arguing for its demise and replacement by private alternatives.
Our system of justice is based on the adversarial model where two or more sides present their opposing views of the truth, and the judge and jury sort it out to do justice. The cooperative e-discovery movement stands by the adversary system, but demands that the contests take place in the right arena, in the court rooms where there is a judge and jury to monitor and declare winners, not in the backrooms of ESI production.
It is our hope that as discovery becomes more cooperative, the contests concerning electronic information will shift from discovery of ESI, to the admissibility and weight of ESI at trial. The adversarial process will shift from the first nine steps in the e-discovery model, to the Tenth Evidence Step. George Paul’s book will arm the lawyers and judges of the future with the background needed to carry out the battles on the admissibility and probative value of ESI. That is one reason this is such an important book. Although Paul’s ideas are cutting edge and take effort to grasp, they are what we need to prepare for the coming digital evidence battles. Those who do not take the time to study this book now, do so at their own peril. You may think you have a digital smoking gun, but by the time Paul and his protege prodigies get through with it, it will look like a cheap fake toy.
In the Introduction to Foundations of Digital Evidence, Paul makes a similar point by a series of interesting questions:
After digital information is obtained in discovery, how does one get such information admitted into evidence? Must one lay a foundation? If so, how and what are the governing rules? How might you keep digital information out of evidence? And is that realistic, given the existing scheme regarding admissibility? But if there is a way to do it, don’t you want to know your best arguments?
And what of the digital information is hearsay? Did a “system” make a statement, without any person being involved? How does one address the hearsay rule in such a situation? How does one exclude such evidence as not fitting any hearsay exception? Are there legal arguments? Are there foundations that must first be laid? What is the developing law?
George Paul’s book answers all of these questions and more. The Introduction then goes on to the key point of the weight to be given to electronic evidence. This is an especially important question since, as the book later explains, authenticity and admission of ESI are far too easy to accomplish under the paper-based rules of evidence, subjecting the whole system to possible abuse. In Paul’s words:
But admissibility is not everything. There are other evidentiary concerns, indeed, which are probably far more important to the practitioner than admissibility. One of these is the weight of the evidence – the dynamic whereby the fact finder compares information to determine what fits into his mental construct, and what is rejected, and thus falls away.
Accordingly, this book is useful to litigators doing their jobs long before any trial process. A litigator must know how to ask questions of the information he receives in discovery. All the while, he analyzes the evidence because its authenticity and persuasiveness are his critical raw material – his force and power and the salvation of his client. It is this dynamic weight that he uses to “build a case.” . . .
Accordingly, litigators must know how to make digital evidence persuasive. Equally, if not more important, they must know how to test digital evidence when it threatens their case. If they know what they are doing, they can launch a crushing flank attack on the opponent. Such information is invaluable to an advocate.
George Paul then goes on to ask more key questions, important to all trial lawyers and clients alike:
Quite simply, how can lawyers of the new millennium do their jobs without understanding basic concepts about digital evidence? Without an understanding of how to test, prove, or attack the information of our new age, aren’t lawyers mere ghosts of the past? Where should we test and probe, and where do we shore up? Do we understand the new information well enough to do these traditional jobs?
Lawyers as “mere ghosts of the past.” Paul’s book is filled with great lines like this and he shows himself time and again to be an artful writer.
The two paragraphs which follow these questions provide a great introduction, which should, I hope, entice any lawyer or thinking person to read the book:
Digital evidence needs questioning like all evidence, but a new and different sort of questioning is in order, and this book points out where to begin one’s thinking. This is a key part of our professional skill set from this point forward. If we abandon our role as society’s experts in information, we loose our power and importance – our righteous calling as the high priests of information. This book is thus a call to a new professionalism. . . .
In short, law is evolving at the start of the new millennium. We are at a crossroads – a change of phase. With our new information and infrastructure, the concept of written evidence has reached a critical tipping point. Judges, professors, students, and thinkers must rewrite the rules. When something so important to civilization as writing suddenly morphs into a new system, the world’s institutions, but particularly its legal systems, simply must adapt.
Two Primary Defects In Our Current Evidence Law
Foundations of Digital Evidence makes the strong argument that our current jurisprudence, based as it is on paper, not ESI, fails in two fundamental areas: authenticity and hearsay. The fundamental reason for this, which Paul’s book makes very clear, is the change in our system of recording information, the change from tangible paper to intangible electrons. When our current rules of evidence were conceived and last revised there was no expectation that people would stop writing on paper and instead write with zeros and ones. In fact, it has taken several years after this transformation for thinkers like Paul to begin to understand the significance of this shift upon the Law.
Paul explains it well in many sections of his book. Here is another excerpt that I particularly like from Chapter 2 -Understanding the Digital Realm:
Digital information objects are a species of pure information. Because they carry information only of the present, and are freely editable, they are not testable as to past states. This conflicts with how we traditionally viewed written evidence, including our longstanding view that original documents give an assurance we are dealing with authentic records. The longstanding notion that writing is a permanent form of evidence has come to an end – unless we construct regimes that permit tests of information attributes.
Our authenticity rules were all designed and perfected for authenticating paper documents. No consideration was provided for purely ephemeral information such as computer files. Paul shows that under our current rules of evidence, very little is required to establish the authenticity of a computer file. In fact, the paper-based rules inadvertently allow almost all ESI to be admitted into evidence with few if any safeguards as to authenticity. This leaves our legal system open to abuses and uncertainty that the rules of evidence are supposed to prevent.
To explain this point better, and tempt you to read Foundations for yourself in all its literary excellence, I offer a selection of some of my favorite quotes from Paul’s first chapter, New World of Evidence:
There has been a profound change in the world of law. After more than fifty centuries, civilization’s system of writing changed suddenly. Indeed, within the course of merely twenty years, supporting technologies clustered into a completely new system of writing for our planet. The change has altered commerce, everyday communication, government, public discourse – indeed almost everything. Global human culture is forever different, and legal systems must now take this into account.
As a result, the written record was transformed. It is now fundamentally different than it was just a handful of years ago. And given the importance of written records to the law, a change in the nature of writing is perhaps the most significant thing that could happen in a legal system.
At issue is the digital information infrastructure that evolved at the end of the twentieth century. It has triggered a revolution in the world of evidence.
What a terrific beginning to a book! You can tell that this is the same George Paul who co-authored with Jason Baron the important law review article, Information Inflation: Can The Legal System Adapt? 13 Rich J.L. & Tech 10 (2007).
The first chapter goes on to explain how this unprecedented, rapid transcendence of paper has undermined our evidence laws.
The current evidentiary scheme comprises three main historical policies: (1) the notion of authentic writings, exemplified by the search for an “original” object tying certain people, acting at a certain time, to certain permanently recorded information; (2) the rule against hearsay, giving litigants the right to test factual statements through cross-examination, unless there was an accepted policy reason not to do so: and (3) the notion that evidence, particularly evidence implicating specialized knowledge, be generally scientific in that it be subject to a “test” of its hypotheses or methodologies.
These policies are all stressed by digital evidence.
Paul says stressed, but what he really means is broken. The paper systems of authenticity, trustworthiness, and accuracy do not make sense for shape-shifting digital evidence. Here is how Paul explains it in Chapter Three, The Existing Scheme Regarding Authenticity at pages 48-49:
Having a witness with some minimum level of knowledge testify that a document is what it is claimed to be made sense during the time that documents were artifacts – records made of molecules that were static over time. A witness could look at a physical object, ensure himself it was the right object by examining the type of paper it was on, how it felt in his hands, whether there were any obvious signs of change on the document, or whether his handwriting appeared on the document. The upshot was that, if it was the same document he originally handled, and there was no obvious signs of change, the document was likely authentic. The inference is that since the “thing” is present and being held, the record has integrity.
But such assumptions go out the window when we stop dealing with artifacts, and start dealing with pure information objects than can be undetectably edited . . . The modern electronic file lives not as an artifact one can hold in one’s hand, but as pure information that can be reordered at will. …
Accordingly, the current system of foundation allows litigants to place into evidence almost anything they want so long as they can get a witness with some nexus to testify that a document is what it is claimed to be. They can employ a sort of legerdemain. If we are to be intellectually honest, there is almost no preliminary burden of proving digital information is authentic.
In the future, in certain defined areas we may want to devise a regulatory scheme, or even a larger system of evidence, that requires legitimate proof of authenticity before digital records are thrown into the ring of evidence. The bottom line is that today, any trivial showing is likely to serve as a foundation for getting digital evidence admitted.
One of the interesting qualities of Paul’s writing is his ability to go from high abstractions to well grounded practicalities. He does that here by immediately examining the practical consequences of his prior bottom line conclusion.
Does it do a practitioner any good to understand digital evidence? If a trivial showing is all that is necessary to get something into evidence, then why even bother understanding things? . . .
First, judges may well begin demanding authentication foundations that do more than constitute trivial showings. They may start ruling that, although it is rational, it is not allowable for juries to in effect guess that a record of information is authentic if an authenticating witness cannot testify with any personal knowledge about integrity of information, dates and times, or the identity of authors, signers, or transmitters. This higher standard has already appeared in at least one case, and may increase in the future, and is exemplified by In re Vee Vinhnee, 336 B.R. 437, 2005 WL 3609376 (9thCir. BAP (Cal.) 2005), discussed in detail in Chapter 8. Unless you know how to oppose the authentication foundation of your opponent, you will miss out on this opportunity to exclude evidence from being admitted.
But remember that the main fight in any battle over truth is not the concept of admissibility, but rather the weight of evidence.
The current evidence codes simply do not work for authentication of ever-malleable computer files. The laws need to be updated and refined. As Paul puts it:
Obviously, a new logic and system of proving and testing authenticity needs to be developed. Then, legal rules that allocate burdens and presumptions, and that determine accepted foundations, need to be fine-tuned.
The same comments as to inadequacy of the current laws applies equally to the important doctrine of hearsay. Computer systems now routinely generate their own information and reports independent of any declarant or other witness. The viability, reliability, and accuracy of the information is not subject to testing by cross-examination. How do you cross-examine a computer? I am reminded of the famous conversation with the rogue computer, Hal, in Stanley Kubrick’s movie,2001: A Space Odyssey (1968), which George Paul also quotes:
Hal: I’m sorry you feel the way you do, Dave. If you’d like to check my service record, you’ll see it’s completely without error.
Bowman: I know all about your service record, Hal, but unfortunately it doesn’t prove that you’re right now.
Hal: Dave, I don’t know how else to put this, but it just happens to be an unalterable fact that I am incapable of being wrong.
Bowman: Yes, well I understand your view of this now, Hal.
Again, the failure to adequately scrutinize computer generated records opens the legal systems to abuse, inaccuracies, and uncertainties. Here are Paul’s words on machine generated statements and the hearsay rule:
The law now routinely lets such statements into evidence, after defining them outside the hearsay rule simply because the assertions are “not made by people,” or after utilizing a business-records exception that was never intended to apply to such statements in the first place. In fact, the nature of these assertions has yet to be fully explored by the law. New rules about the admissibility of such out-of-court statements are necessary. There is a need for a new doctrine, a twenty-first-century manifestation of the hearsay rule if you will, here called “systems reliability.”
Judge John Facciola wrote the Foreward to Foundations of Digital Evidence. Here is Judge Facciola’s reaction to Paul’s criticisms of the application of current hearsay rules to the admission of digital evidence:
Paul’s exploration of the hearsay rule as applied by the courts is not pleasant reading for a trial judge like me. The courts have not covered themselves with glory. Instead, as Paul convincingly shows, the courts have reached radically different and irreconcilable results in the application of what is supposed to be a relatively simple question: was this digital information a “business record” produced in the ordinary course of business? The problem is that the business record rule and digital information have little in common.
Judge Facciola then goes on to conclude that Paul’s observations and ideas on evidence are revolutionary.
It may be odd to describe Paul, an obviously bookish Yalie who practices law, as a revolutionary but he has, like it or not, earned that title. He is, after all, suggesting an entirely new way of looking at how digital information should be considered by the court, and the consequential need to create new rules of evidence based not on tradition but on how digital information actually comes into creation.
My conclusion is that you should get this book and then set aside several large blocks of time to read it. It is best enjoyed like a fine wine, with small sips and plenty of thinking time in between chapters, if not paragraphs, to savor and digest the ideas and insights. This is not an easy book to read, but it is worth the effort.
Although this book has heights of poetic fancy, it is balanced by many down to earth practical sections. Indeed, Part Four of Foundations of Digital Evidence is written by several expert contributors, namely Ed Chase, a software engineer for Adobe; Grace Powers, V.P. and Senior Legal Counsel for Countrywide Financial Corp.; Timothy S. Reiniger, Executive Director of the National Notary Association; Stephen Mason, Barrister and author of numerous publications on digital evidence; Victor Limongelli, Presdient and CEO of Guidance Software; and, Steven W. Teppler, Senior Counsel concentrating on technology law for the KamberEdelson law firm. This last section of the book with Appendices constitutes over one-half of the book. It contains case studies to provide real-world illustrations of the points made by Paul in the first half of the text.
As the adversary process moves from its current center in e-discovery, where it does not belong, into issues of evidence and trial, where it does belong, the value of this book will grow. Motions in limine will replace motions for spoliation as the dispute de dato. Also, one can hope that as the cost of e-discovery comes down, more and more cases will actually go to trial. The percentage of cases tried in the federal system may triple from its current level of only 2%, to 6%. The trial lawyers of the future who do more than simply litigate, and actually try cases, will need to understand this book, or at least have associates assisting them who do.
To close, I would like to share a few more of the words of George Paul that I find particularly compelling from the first chapter, New World of Evidence at page 16:
Certainly there are radically different structures, behaviors, and technologies supporting writing than there were when many of our profession studied the law for the first time. Quite simply, our old abstraction about documents no longer serve us. Society needs to put on new conceptual glasses, with different lenses and new frames, to now compose different shapes and forms so that we all can sense the new reality clearly. Old abstractions keep us captured in a bottle of outdated concepts.
Lawyers have a special role in society. When you really want to know what happened – in a dispute in business, or in a marriage, or in a government scandal – you call the lawyers, and they pore over information, including the writings involved. The New Empiricism means that lawyers must understand the workings of informational records better than any other social group. If not, they lose their effectiveness – their status and power in society. The simply cannot do their job – what people expect them to do – unless they have these core competencies.
This book seeks to lay a foundation for core competencies.
SUPPLEMENTAL READING: Read some of the cases cited here and prepare a one paragraph summary of the one you found to be most interesting and why.
NON-MANDATORY READING. For more reading and in depth understanding, review a few articles on electronic evidence. If you can get your hands on Paul’s book, that is the best resource, but as far as we know, it is still only available in paper copy (ironic, eh?).
EXERCISE: Select your favorite quote above from Paul’s book. Search for other authors who have written about the same or related topics. Then formulate your own ideas based on this new information.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015