Presenting evidence to judge and jury is the end goal of discovery. Appropriately, the final stage of the electronic discovery reference model (EDRM) is presentation.
There are four major focus areas in electronic evidence presentation. The first two, metadata and readability, only arise with electronically stored information (ESI). The third is authentication. While authentication certainly isn’t unique to ESI, electronic evidence presents many problems – both legal and technical – not germane to physical evidence and paper documents. The final area is sanctions for e-discovery misconduct, which can put an end to presentation before it begins.
1. Metadata has evidentiary value.
Metadata is a principal point of distinction between ESI and paper documents. Metadata such as author and date can be as important evidence as the text content of ESI. Admissibility may even hinge on metadata; for example, metadata proving that a witness had or didn’t have access to a file can be the difference between relevance and non-relevance. In addition, some metadata such as Excel formulas is essential to understanding file content.
The riskiest EDRM stages for metadata are collection and production. Metadata is easily altered during collection. This is one of the biggest risks of client self collection. Always use forensically sound copying tools and processes to prevent spoliation.
Although production in and of itself is a technical process, whether metadata will be produced is a legal concern. Best practice is to address metadata in the discovery plan. It’s also recommended to specifically ask for metadata in requests for production. In consultation with your e-discovery service provider, ensure that the production format has the right language for producing metadata.
2. Electronic evidence must be readable to be presented.
Presenting paper documents is easy: hand a copy to the judge or display a scanned PDF on a monitor for the jury to read. ESI presentation is more complicated. In fact, it’s important to think about presentation at the outset of the case before even starting discovery.
First, brainstorm the types of ESI likely to be relevant in your case. This will almost certainly include metadata. Mobile device data like messages and call logs is increasingly important in a wide variety of civil litigation. Databases are routine. Websites and social media data are highly relevant in certain types of cases.
Second, consider how you will present each type of relevant ESI. Some data sources have inherent characteristics that impact readability; a common example is large Excel spreadsheets. Your audience must be able to read and understand the evidence for it to have an impact. Consult with your e-discovery service provider and courtroom technology consultant on technical and practical options. One display format can be much more persuasive than another for certain types of ESI.
The final step is to negotiate production format that will support optimal evidence presentation for each relevant ESI type. My article Specify Production Format Upfront or Pay the Cost Later covers form of production in more detail.
3. Authentication of ESI is based on chain of custody.
Evidence must be admissible to be presented. One of the requirements for admissibility is authentication. Authentic evidence is what it purports to be or in layman’s terms, is genuine, intact and unaltered.
Chain of custody is very important in ESI authentication. Electronic evidence is copied and transferred numerous times between preservation and presentation. Chain of custody is used to show that the integrity of the evidence was maintained from end to end of the e-discovery lifecycle.
My article Chain of Custody and Its Critical Role in Authenticating Electronic Evidence covers the nuances of ESI chain of custody in greater depth. It also details the many types of chain of custody documentation.
4. Sanctions negatively impact presentation.
Being sanctioned for e-discovery failures or misconduct will hurt a party’s evidence presentation in at least one of the following ways:
- Adverse inference instruction: If evidence is lost or altered because of spoliation, then the judge may give an adverse inference instruction. This is a direction to the jury that it may (permissive inference) or must (required inference) conclude that the lost evidence was helpful to the opposing party.
- Evidence of misconduct: Judges have discretion to allow the opposing party to offer evidence of discovery misconduct, particularly if there is no other effective or practical remedy available. This is much like a party being called as a negative character witness against itself. It detracts and distracts from presentation of favorable evidence.
- Time and money: Litigation is costly. Resources are limited. Time and money spent fighting avoidable discovery battles is not being spent on case analysis, dispositive motions and trial preparation.
- Default judgment: The ultimate sanction is default judgment. Judges will consider a pattern of discovery failures or even a single instance of egregious misconduct in awarding default judgment in favor of the opposing party. The best evidence is useless after the case has been lost.
Today the vast majority of documentary evidence is ESI. It’s critical to get e-discovery right in order to present relevant evidence and fact-based arguments.
This article was originally published on QDiscovery.com.
Published August 2, 2019.
