Friday, August 22, 2008

digital vs. analogue - evidentiary issues

What's better, analogue or digital? Is paper evidence better than digital evidence? Do you need the original file, or will "the best evidence" suffice? Who is to say what constitutes "the best evidence?"

"It's potentially the thorniest question in e-discovery, but one that has received very little attention in the courts. Authenticating digital evidence in civil trials has not gotten a lot of judicial attention in part because most civil cases never go to trial, but also because lawyers and judges tend to treat it no different than paper evidence, writes Jason Krause on Law.com.

"The rule of evidence that fits the new paradigm most awkwardly is the Best Evidence Rule, which requires that the original of writing must be admitted into evidence. However, presenting an actual computer file in trial is not always practical, so printouts are generally accepted in lieu of the actual file. But as was noted in Armstrong v. Executive Office of The President, a paper printout of an electronic document doesn't "necessarily include all the information held in the computer memory as part of the electronic document," because essential digital information is stripped away."

"Experts say the best way to avoid problems is to always ask for the original, electronic version of a file, or to at least make sure that the original is available for study if any authenticity questions arise. Simek says that he recently dealt with a case where one side presented a photo for evidence, but once he looked at the original digital file the print was made from, it was very easy to see the photo was taken long after it was purported to have been shot. "I always tell my clients, 'don't ever accept paper,'" he says. "There is metadata, headers, and time stamps all over electronic files that tell you things paper never will."

Read the rest of this outstanding article by clicking here.

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