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Monday, June 18, 2007

Ind. Courts - Admissibility of electronic evidence -- is it "authentic"?

Discovery of electronic evidence has been in the news in recent months. But little has been written about the admissibility of electronic evidence.

This may be changing. Encouraging the change is the May 4, 2007 opinion issued by U.S. Magistrate Judge Paul W. Grimm in the case of Lorraine v. Markel (D Md).

The opinion, which is 101-page long, is, according to this excellent article posted by the firm of Lord Bissell Brook LLP:

not only a review of the requirements for admitting electronic evidence under the Federal Rules of Evidence, but a practical discussion of some of the technology and document management issues raised by those requirements, such as hash values and other indicia of authenticity, metadata and collection techniques.
The ILB has reviewed the federal court ruling and, because of its length and the fact that it can serve as a valuable guidance, has added a linked table of contents (TOC) to the opinion and posted it here.

From the TOC it is easy to see the five evidence standards that electronically stored information must satisfy in order to be admissible under Judge Grimm's ruling. These are (1) relevance, (2) authenticity, (3) hearsay, (4) the original writing rule, and (5) balancing probative value against unfair prejudice.

The second standard, authenticity, is the focus of my latest article, "Assuring Authentic Legal Information in the Digital Age," which will appear in the June issue of Res Gestae. You may access it right now, digitally, here.

The subtitle of my article is "Part I - the Acts of Indiana and the Indiana Code." The article begins:

Last month I learned that Indiana is not the only state where concerns are being raised about the transition from printed volumes of a state's laws and rules to electronic-only
public access.

The American Association of Law Libraries (AALL) held a National Summit on Authentic Legal Information in the Digital Age on April 20-21, 2007. I was fortunate to be invited.

Experts at the meeting examined questions including:

  • In today's dynamic digital environment, can an electronic version of a statute, rules or judicial opinion substitute for the print version?
  • How trustworthy are state-level primary legal resources on the Web?
    • Are they official?
    • Are they authentic?
    • Are they permanently accessible?
    • Are they secure?
The AALL's State-by-State Report on Authentication of Online Legal Resources is available via this page. Here are two quotes from the Report that I also use in my article:
The emergence of online official legal resources is a positive development, providing that the publications are actually trustworthy.

To be trustworthy, digital materials – vulnerable to lapses in management and control, corruption, and tampering – must be equivalent to print official legal resources.

To be equivalent, they must be authentic.

Some states cast online legal resources in a facilitative role, intending citizens and law researchers to use such materials as a means to identify law they must take steps to verify elsewhere. This is a misleading and self-defeating role for government information.

As fully demonstrated in the detailed findings, some online sources now replace print official legal resources. For the states to rely on an approximation of the law – even one “good enough” most of the time – completely fails in its role where the online source is the sole official statement of the law and is not authenticated.

The AALL Report concludes that existing state online primary legal resources are not sufficiently trustworthy. Although a number of state online resources have been designated as "official," none are authenticated, or afford ready authentication by standard methods.

The second quote from the AALL Report:

The fixed nature of the print medium, coupled with the paper publication’s multiple copies and wide distribution, ensures that the print official legal resource, as “governmentally mandated or approved by statute or rule,” is an authentic resource. An online official legal resource offers no such automatic assurance.
My June article, as the subtitle indicates, examines the trustworthiness of the online versions of the Acts of Indiana and the Indiana Code. An upcoming article will examine the Indiana Register and the Indiana Administrative Code.

I have no current plans to look at the judicial branch, but in light of the content management system being put in place state-wide (see this ILB entry from June 11th titled "Supreme Court signs $11 million contract with Tyler Technologies"), these words from the Lord Bissell article may be as relevant to our judicial branch as they are to our legislative branch:

Judge Grimm's mini-treatise is a must read for those involved in designing and implementing effective e-contracting processes and systems, and processes for the creation and maintenance of ESI more generally. Vendors developing document management and content management systems need to incorporate a strategy for admissibility of ESI into the entire ESI value chain, from creation to maintenance, custody, security and access rules, to search, preservation, production and admission as evidence, to destruction. All along this chain the ESI faces risks of failing, for example failing to be admissible, to be enforceable, or to be persuasive. Judge Grimm raises many such risks of failure, and also implies - sometimes much less directly - processes for mitigating and managing those risks.

Posted by Marcia Oddi on June 18, 2007 10:52 AM
Posted to Indiana Courts | Indiana Government | Indiana Law