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 DIGITAL LEGAL DOCUMENTS:
Digital Documents as Evidence in a Trial

Monday, November 12, 2018

R. David Whitaker
Partner
david.whitaker@dlapiper.com
+1 312 368 2199

This presentation is offered for informational purposes only, and the content should not be construed as legal advice on any matter.

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eSignature legal framework
 UETA - state solution
 ESIGN - federal solution
 Both laws act as overlay statutes
– Authorize replacing writings with electronic records
– Authorize replacing ink signatures with electronic signatures
– Require affirmative opt-in by parties
 The outliers
– New York, Illinois, Washington
– The really “out there” outlier – California
 Preemption
 Global framework
– Simple, advanced and qualified

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The five pillars
 A record or signature may not be denied legal effect or enforceability
solely because it is in electronic form.
 If a law requires a record to be in writing, an electronic record satisfies
the law.
 If a law requires a signature, an electronic signature satisfies the law.
 If a law requires the preservation or production of an “original,” the
“original” requirement is satisfied by an electronic record.
 Electronic records can satisfy writing and original requirements so long
as the electronic record:
– Accurately reflects the information in the record to be produced
after it was first generated in its final form, and
– Remains accessible for later reference.

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 Enforceability and Admission into Evidence
 The UETA and ESIGN establish baseline rules for the
enforceability of electronic records and their admission
into evidence:
– Any requirement to preserve or produce an “original”
record is satisfied by any electronic record of the
information in the record to be produced, so long as the
electronic record:
– Accurately reflects the information in the record to be
produced after it was first generated in its final form,
and
– Remains accessible for later reference.
– Evidence of a record may not be excluded solely
because it is in electronic form.

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 Enforceability and Admission into Evidence

 The Federal Rules of Evidence and the Uniform Rules of

Evidence contain identical provisions that, taken together,
address the admissibility of electronic business records:
 The “Business Record” Rule, and
 The “Best Evidence” Rule.

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 Enforceability and Admission into Evidence
The Business Record Exception to the Hearsay Rule

–Business records of regularly conducted activity are admissible in evidence if:
–The record is made in the ordinary course of business,
–Is made as part of the business’s regular practices, and
–Is creates at or near the time the events occurred by a person with knowledge of the
events.
–Exception: Not admissible if the source of information or other circumstances indicate
the record is not trustworthy.
–Note that audit logs and audit trails can be business records.
The Best Evidence Rule

–Any printout of a computer record is an “original” for purposes of admission into
evidence.
–Some courts believe the Best Evidence Rule doesn’t apply to electronic records at all, if
the electronic record was not converted from a paper original.

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 Enforceability and Admission into Evidence –
How It Works
 General Guidance
– Lorraine v. Markel American Ins. Co.
– In Re Vee Vinhnee
 Illustrative Cases
– Adams v Quicksilver, Inc.
– Gomez v. Metro Nissan
– Bar-Ayal v. Time Warner

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Enforceability and Admission into Evidence --
How it Works

 The primary authenticity issue as identified by the court in In Re Vee Vinhnee, 336
B.R. 437 (9th Cir. BAP (Cal.) 2005), focuses on:
– . . . what has, or may have, happened to the record in the interval between when it was placed in
the files and the time of trial. In other words, the record being proffered must be shown to
continue to be an accurate representation of the records that originally was created . . . . Hence,
the focus is not on the circumstances of the creation of the record, but rather on the
circumstances of the preservation of the record during the time it is in the file so as to assure that
the document being proffered is the same as the document that was originally created.

 The court focused on the preservation of the record and noted that for electronically
stored information:
– [t]he logical questions extend beyond the identification of the particular computer equipment and
programs used. The entity’s policies and procedures for the use of the equipment, database, and
programs are important. How access to the pertinent database is controlled and, separately, how
access to the specific program is controlled are important questions. How changes in the
database are logged or recorded, as well as the structure and implementation of backup systems
and audit procedures for assuring the continuing integrity of the database, are pertinent to the
question of whether the records have been changed since their creation.

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 Enforceability and Admission into Evidence–
Preserving Records and Positioning for Dispute Resolution

Record
Life Generate Deliver  Store  Manage  Destroy
Cycle

Primary Audit Trails

Transaction-specific Screen Shots
Record Boilerplate Docs for Enrollment,
Categories Docs & Process Flows
Delivery/Signing

Secure and Consistent Record Management

Quality &  Search and  Record  Business
Access
Integrity  Report  Destruction  Continuity
Controls
Key Controls  Capabilities
Systems
Issues
Record Management Responsibility
Secure Communication
Record Management Audit Trails & Reports
Company Policies and Guidelines

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Enforceability and Admission into Evidence–
Preserving Records and Positioning for Dispute Resolution

Preserving evidence of data integrity, screen shots and process flows is

essential.
Design document management systems with system and record protections in
mind (such as developing backup procedures, audit logs and encryption
methods to enable the demonstration that the records have not been tampered
with, data deterioration procedures, system security safeguards etc).
Document and preserve program processes, screen shots, and versions of
documents.
Create policies and procedures for the creation and maintenance of electronic
records.
Document that the policies and procedures were followed (who did what when
as a general matter).
Audit document management for quality as part of ongoing continuous
improvement process.

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 Enforceability and Admission into Evidence
Rule 901
 Rule 901 is the basis for the admission of some
electronic records into evidence.
– Requires the testimony of either an employee with actual
knowledge or an expert witness.
– Laying the foundation for admission can be cumbersome and
expensive.
– Some companies are now hiring employees as records managers
whose primary job responsibilities include testifying as a witness
at trial.
– Constitutes a potential barrier to adoption.
 Courts sometimes require expert testimony concerning
the integrity of the system housing an electronic record
before permitting it to be admitted into evidence.

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 Enforceability and Admission into Evidence
Rule 902 Certification
 The Rules of Evidence permit the creation of “self-authenticating”
business records, so as to avoid the need for presentation of
extrinsic evidence as a precondition to admissibility.
 Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007) -- “[Rule 902(11)
certification] is extremely useful because it affords a means of
authenticating business records under [the Business Records
exception to the Hearsay Rule] without the need for a witness to
testify in person at trial.”

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 Enforceability and Admission into Evidence
Section 902 Certification
 The original or a duplicate of a domestic record of regularly
conducted activity is admissible if accompanied by a written
declaration of its custodian or other qualified person certifying that
the record was:
– Made at or near the time of the occurrence of the matters set forth
by, or from information transmitted by, a person with knowledge of
those matters;
– Kept in the course of the regularly conducted activity; and
– Made by the regularly conducted activity as a regular practice.

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 Enforceability and Admission into Evidence
Section 902 Certification

 A party intending to offer a record into evidence under Section 902

must provide written notice of that intention to all adverse parties,
and must make the record and declaration available for inspection
sufficiently in advance of their offer into evidence to provide an
adverse party with a fair opportunity to challenge them.

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Sample Section 902 Certificate

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 Questions?

R. David Whitaker
Partner
+1 312 368 2199
david.whitaker@dlapiper.com

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