Moving ESI as Real Evidence
Law.com, August 22, 2008
Anyone who has ever touched a computer knows just how easy it is to replicate an electronic document. Whether it’s ill intentioned or not, the variety of software that’s out there allows us to duplicate, alter and forge just about anything. With that said, it’s not surprising to know just how complicated ESI has becoming within courtroom walls. We’re moving far beyond the days of paper documents, a fact which is quickly forcing legal professionals to revaluate how evidence is authenticated in court.
“At a certain level it’s a very simple problem; at another it’s very deep,” says George Paul, an attorney with Lewis and Roca in Phoenix and author of the book “Foundations of Digital Evidence.” “The bottom line is that there is nothing different about the handling of digital evidence under the rules, but in practice it is a whole different information paradigm.”
In the recent case of Lorraine v. Markel Am. Ins. Co., Magistrate Judge Paul Grimm summarized his ideas for successfully authenticating digital evidence, suggesting that the process is more complicated than most people believe. We tend to agree with Judge Grimm, knowing full well the complexity of electronic documents and the baggage that’s attached to it. In order to make our lives easier, we need to plan ahead of time and invest in ESI software. Otherwise, we may come up empty handed in court.