One of the world’s most foremost authorities on electronic signatures and records analyzes the current state of the ongoing digital revolution
The Honorable Paul W. Grimm, United States District Judge for the U.S. District Court for the District of Maryland, is well-known in the world of electronic signatures and records. His decision in the landmark 2007 case Lorraine v. Markel laid the groundwork for determining the admissibility of electronic evidence. His viewpoints and analysis of the current state of the ongoing digital revolution are incredibly poignant. We had a chance to hear from him at the 2015 eSignRecords Conference – and it was a fascinating exchange.
Living in a Digital World
“We’ve lived in a digital world for a long time,” Judge Grimm began, setting the stage for the fact that we will continue to occupy such a world for the rest of our lives. He noted that while ESRA Conference attendees understand that all too well, most people don’t really think about the ramifications of dealing with potentially legally binding digital interactions on a daily basis.
Judge Grimm went on to give an example involving the traffic app Waze, using his personal experiences driving between Baltimore and Washington DC and navigating the traffic with Waze. “Almost every day it gives me a new route, and I’m astonished at its accuracy,” he said. “If Waze told me to drive off a cliff, I would drive off a cliff,” he added to laughter.
He continued: “When we look at the explosion of digital media in our lives, we are all using digital devices. The number of them increase, the capacity increases, and the dependency on them increases. Take that technological revolution, with new products coming online to consumers expecting them to be better and faster, and imagine the impact when parties come to court in civil and criminal cases and cite digital evidence.
“For example, look at a simple case involving a car accident: Were they looking at traffic on Waze or texting or something else? Or move up the ladder to a more complex case, such as one involving matrimonial law. Judges who handle such cases tell me that they’re constantly dealing with issues involving digital technology, where a spouse will show a text message on their cell phone to the judge.
“Or go up a notch to commercial disputes and you’ll find that what organizations say on their web sites or their communications becomes the subject of document requests. Or look at criminal cases where parties are agreeing to illegal conduct and using digital devices to communicate.”
Judge Grimm concluded his introductory remarks: “Whenever we deal with intent, state of mind, and purpose, we get into these issues. Oftentimes, what someone is thinking is increasingly put online in various ways, and that can have ramifications in legal cases.”
Common Law Rules of Evidence
However, while digital media has produced new types of evidence for court cases, as Judge Grimm explained, the rules governing how such evidence can be used have been part of the United States common law system from its earliest days in Great Britain during the 1600s. Those rules cover evidence equally, whether it’s something that was produced electronically or something that was written on a piece of paper by hand.
Judge Grimm continued: “Judges have had a difficult time adjusting to how this technology works. When we know that digital technology can be manipulated, such as someone posing as someone else through an online message, or hacking their account, or manipulating photos, we find that the judge is being asked to give special scrutiny to digital evidence when they wouldn’t be asked to look at more traditional evidence the same way.”
Thus, Judge Grimm said, this question now vexes many judges: “Are the rules going back hundreds of years adequate for the task of dealing with digital evidence?”
The Issues That Govern Whether Evidence Should be Admitted
To set up where he was headed next, Judge Grimm revisited his landmark 2007 Lorraine case: “At the time, I was very concerned that the lack of frequency with which civil cases go to trial in federal court (fewer than 2 out of 100) was such that lawyers were spending all their time accumulating information during discovery. So when they were called upon in trial or in a motion to address such information, they weren’t giving adequate attention to the rules governing whether the evidence should be used.
“I wanted to use the decision to map out the evidentiary issues around electronically stored or created information.”
Judge Grimm continued by reviewing the simple list of rules that govern whether evidence should be admitted during a trial:
“First, is it relevant?” he asked. “Relevance is a phrase that has a widespread understanding in the non-legal community, but in a legal case it translates to, ‘Does this little piece of information have any logical tendency to either prove something that the law requires or to disprove that the defendant is required to prove?’
“For example, if it doesn’t matter who sent an electronic message but that it was sent, then it’s not relevant who did it, unless you’re trying to blame someone. Logical relevance is an easy test, then.”
He continued: “The second point is one where increasingly the courts have struggled, and that is to show that the digital information, in whatever form it may be, is authentic. Like relevance, the notion of authenticity is a familiar concept within and beyond the law. It means ‘Genuine, not made up.’ That same concept translates well to the law of evidence.
“For example, if you’re trying to prove what was going on in the mind of an actor whose conduct was important to the case, the notion of authenticity is pretty straightforward: Is this evidence what this person purports it be? Is it genuine?”
Establishing the Authenticity of Electronic Evidence
Judge Grimm noted: “Many times the question of legal evidence turns on the question of whether it’s authentic. For example, what did a company’s web site look like 15 years ago? I had a case involving a construction project that started in 1999 and ended in early 2001. It was alleged there were severe problems that began to manifest themselves a couple years after the completion of the project, but by the time that eight years had gone by, expensive repairs were required.
“Various lawsuits started as people began pointing fingers at each other. The lawsuits started in 2011, and by the time I was involved, all the parties had settled except one that had sued the other. One of the important issues in that suit was whether or not one party was relying on the expertise and knowledge of someone they had bought a product from and making a decision whether this was the right product to use for the structural maintenance of a large building.
“Part of what was offered into evidence was what the web site of what one of these companies said in 1999. Today, if you went to the web sites of any of those companies, they would not look the same as in the past. To see how they would look, there is a company that will issue certificates for saved caches of information that show a website as it looked in the past. They can show what a website looked like in 2001, for example.” (See this page on the Internet Archive Wayback Machine website for more information.)
He continued: “That’s important because if it’s authentic, then it is relevant to the decisions made regarding what products to buy for that construction project, as well as the claims made by that company back then, regarding what knowledge they said they had.”
How to Authenticate Digital Evidence
“That’s a frequently occurring issue,” Judge Grimm continued. “How is it that a judge decides whether digital evidence is authentic? Well, the rules of evidence provide a variety of ways. One is a witness with personal knowledge of what happened. Another way is to bring in an expert to analyze the evidence and determine its authenticity. Another way is to circumstantially determine through the process of inference and logic that information is authentic – for example, everyone has received emails from organizations and individuals that have a certain quality that it is associated with whoever sent it, such as a specific font, a background color, a logo, the use of shorthand and emoticons, or other differentiators.
“Still yet another way, which is very valuable and often involves an expert, is to show the information was produced as a result of a system or process that can be demonstrated to show reliable and accurate results, such as the Internet archive software I previously mentioned.”
Judge Grimm continued: “When you are authenticating, you are only required to show that more likely than not, it is authentic. You don’t have to eliminate all possibility that someone may have modified it in some way. You just have to show that the person who wants it to be considered by the jury, that with a 51% preponderance, it is what it claims to be.”
Two Schools of Thought on Authentication
However, as Judge Grimm went on to explain, two schools of thought have plagued U.S. courts over the past five years. He elaborated on the first one: “Some courts have been skeptical of electronic information: How do we know someone didn’t hack it? How do we know the information wasn’t lost or altered? Or how do we know that when the information was entered a year prior that it was accurately maintained? How do we know someone didn’t hack into it?
“That approach has said that the ordinary way of authenticating evidence that existed in the non-digital media world, such as comparing samples or calling a witness, are not enough. You have to do more and disprove the possibility that someone else could have created or changed it.”
He continued: “The other school of thought, which is becoming predominant, says that we don’t have to do any more for digital information than we have to do for regular information. The party involved doesn’t have to prove the evidence with absolute certainty, and if there’s a question, they can show that more likely than not, the person who is said to have prepared it, prepared it. But if you have actual evidence that points to someone else or calls the creation of the evidence into question that would rebut the evidence of authenticity, then it comes down to how much weight the jury should give the evidence.
“What has tended to happen over time is that when courts use the second school of thought, if equal evidence is entered that rebuts the claims made, then and only then does the judge have to do what is required by an important rule of evidence (Rule 1.04b), which when the judge doesn’t get the final decision regarding the authenticity of the evidence.”
Judge Grimm offered an example of that: “Let’s take a hypothetical case where the author of an email is important. One side says it’s from X, it’s their known email, it uses slang that X uses, it’s addressed to someone who works with X, and it’s dated on a day that X was at work. Comparing it to other emails from X that look similar, it looks authentic. That would normally be enough.
“If the other side objects to that authentication, the judge has to ask for contrary evidence. If the lawyer doesn’t have that evidence but offers conjecture, such as ‘Someone else could have sent the email,’ the traditional rule is that that isn’t enough, but you can argue it to the jury. But if the lawyer can offer evidence that someone else had access to X’s email on that date, his computer was open and not password-protected and others had access to it, and witnesses say X was in a meeting with them at that time, then someone else could have done it. Now the judge has an A version of the evidence that’s inconsistent with a B version.
“In that situation, the judge lets both versions go to jury and says, ‘You have heard from plaintiff that the email was prepared by X and they’ve explained why. If you agree, you may give it the weight it deserves. But you have also heard from the defendant that says it was not prepared by X but by someone else who had access to X’s computer. If you accept that version, you may not consider this evidence and can’t give it any weight in your deliberations.’ The jury decides which version they accept. That’s the process that comes up in a limited number of cases when there is a legitimate dispute over the authentication of evidence.”
Proposed Changes to the Rules of Evidence
In order to hopefully bring about consensus between those competing schools of thought, there are two new evidentiary rules concerning self-authentication that are under consideration by an advisory committee, according to Judge Grimm. He explained that they are:
Rule 9.02.13 would allow self-authentication of information generated by a machine, including a computer, that a certificate showed was a system or process that produced reliable results. This would stand unless a lawyer on the other side objected and could bring in witnesses to rebut that certificate.
Rule 9.02.14 would allow for a certified copy – in other words, an affidavit under oath – of copies of electronically stored information. Judge Grimm explained: “This would involve someone saying, ‘We went to the computer, opened it, saw the contents of a file, and copied the contents of that file.'”
Judge Grimm continued: “Those authentication rules would allow a party to produce a certificate and put the burden on the other side to object to it. If they do object, the party who offered it knows they may need to bring in live testimony to support their claims.”
As with other proposed changes to legal rules, there is a six-month period for public comment. If the rules are adopted, they will be recommended by the evidence rules committee and then go through a formal process that ends with approval by the Supreme Court and legal passage by Congress. The entire process will take two or three years, so it’s not something that will happen quickly, but as Judge Grimm noted, it will hopefully solve the evidentiary problems that courts have wrestled with when it comes to digital evidence.
A Question and an Answer
That concluded Judge Grimm’s presentation. One audience member asked a question concerning the requirements in the electronic transaction industry that are more stringent than the current legal tests for digital evidence. They wondered how Judge Grimm saw the trend headed.
Judge Grimm replied: “These evidentiary issues, beginning with my Lorraine opinion, haven’t been there in many cases. The area where I see this happening is on two grounds: The proposed evidence rule changes will give you all the authority you need, and legislatures have stated passing laws, like e-signature or e-notary laws, that say, ‘If you have a document that does certain things and it’s prepared electronically, then it’s considered authentic.’ Those are allowed by rules that say Congress can pass laws regarding how things are authenticated.”