By Christopher A. Lisy and Kayla M. LaRosa
Digital (electronically-stored) information and evidence is more than an emerging trend – it is now ubiquitous. In fact, lawyers are ethically obligated to stay current on technology developments. Here in Massachusetts, for example, the Supreme Judicial Court has directed that lawyers “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education.” See Mass. Supreme Judicial Court Rule 1.1, cmt. 8.
Those of us who practice in the courtroom need to understand how to present digital evidence persuasively to the fact-finder. And even before that, we need to understand what digital evidence might exist that is relevant to our case. This article suggests some practical guidance on these topics.
First, position your case with digital evidence right from the start
Your plan to present digital evidence shouldn’t wait until the eve of trial – it should start at the beginning of the case by identifying what evidence exists and where it can be found.
Digital evidence is now much broader than the “traditional” forms of business email and native documents. For example, messages sent by SMS and through apps like Facebook Messenger and WhatsApp are perhaps the most common form of digital communication and tend to be more casual than email (and sometimes, therefore, more interesting). Corporate collaboration tools like Slack and Microsoft Teams are used by countless employees. Social media accounts often contain years of videos, pictures and conversations. Document metadata reflects who created and modified documents, and when. This evidence can reside in many different mediums, including on computers, mobile phones and in the cloud.
Nearly every case will involve some kind of digital evidence. Sometimes, as in a case involving trade secret misappropriation, it’s obvious – but not always. If your case involves a car crash, for example, digital evidence exists on the data recorders that are installed on many modern vehicles and that record speed, location, and driver inputs like gas pedal application and seat belt status. Brainstorming early will pay dividends later.
Next, use discovery to your advantage
You have an entire toolbox to obtain discovery of digital evidence – and to get that evidence in a form that’s presentable at a hearing or trial.
Under Rule 26(f) of the Massachusetts Rules of Civil Procedure, the parties must discuss the discovery of digital evidence (including the form of production) if one of the parties makes a written request. This is a powerful tool that can be used early in the case.
Written discovery is also essential. For example, Rule 33 interrogatories can be used to request identification of every email address and social media account for relevant individuals. Rule 34 requests for production (which specifically address requests for electronically stored information) can be used to obtain an inspection of an opposing party’s electronic devices or computer systems. That rule also requires the production of electronic and digital evidence in the form in which it is ordinarily maintained or in a reasonably useable form. You should insist on this when it matters; for example, by requesting “native” Microsoft Excel spreadsheets that would be otherwise unusable in printed form.
Then, think about evidentiary hurdles – particularly authentication
Evidentiary hurdles are nothing new, but digital evidence presents fresh complexities.
The rise of AI-generated content in particular raises novel and significant authentication questions. To authenticate evidence, the proponent must show that it is what it purports to be. That is easier said than done if the AI content is close to or indistinguishable from the “real” evidence. The prevalence of audio and video “deepfakes” create challenges that didn’t exist just a few years ago. Internet-based messages sent outside of traditional corporate email systems present a similar challenge. How can the proponent demonstrate that a Facebook message was actually written by the purported sender?
Rule 36 requests for admission can be very helpful here, as that rule expressly permits requests targeted to the “genuineness of any document described in the request.” Massachusetts Rules of Evidence 901 and 902 also provide various means to authenticate evidence, including through the testimony of a witness with knowledge that an item is what it is claims to be (Rule 901(b)(1)) or by distinctive characteristics of the item (Rule 901(b)(4)). You should think about authentication issues early in the case and have a plan to admit the evidence.
Finally, make your evidence trial-ready
You’ve finally arrived at an evidentiary hearing or at trial – this is the fun part.
First, consider technical issues. How will you actually display your digital evidence to the fact-finder? A good consultant and trial presentation software can add significant value, but even an experienced colleague running PowerPoint can deliver impressive results. Visit your courtroom while another trial is in session and observe the layout and the presentation of digital evidence. You might discover, for instance, that not everyone can see the screens clearly. You should also inquire with chambers about what technology is available, as some courtrooms are more advanced than others.
Make your exhibits compelling. Use a variety of media to keep things interesting. If you are planning to present digital evidence “live,” be sure it actually works. Websites in particular may not display properly; links may be outdated or dead by the time your case gets to trial. Think ahead and plan for this, which may involve archiving evidence earlier in the case.
Be aware that many digital exhibits are data-heavy and dense. Be prepared to navigate the fact-finder to the key parts by using callouts, underlining and highlighting.
As always, be thoughtful about the number of exhibits (the fact-finder may not have your attention span).
Finally, don’t forget about the requirements of your court, which may include directions on virtual exhibit stickers, procedures for submitting voluminous digital evidence to the court or to the jury, naming conventions, and requirements for digital exhibit file types.
Digital evidence is a critical part of almost every litigation. With early and proper planning, you can present it for maximum effect.
Christopher A. Lisy is a member at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.. Chris is a litigator with more than twenty years of trial experience, particularly in cases involving technology issues.
Kayla M. LaRosa is an associate at Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.. Kayla focuses her practice on complex commercial litigation, data privacy, and cybersecurity matters.
