In employment litigation, evidence now admitted during most trials routinely includes electronically stored information (ESI), including email communications and documents the receipt of which is often acknowledged with a mouse click. Trial counsel must know how to authenticate such ESI to ensure the court will allow it into evidence. Counsel also should be aware of the pitfalls when ESI has been intentionally or unintentionally altered, thus impairing admissibility.
Unfortunately, in addition to hacking and cyberattacks, we have seen that technology can be abused by an unscrupulous litigant: Email communications can be falsified, sometimes requiring expert testimony to uncover the wrongdoing. Similarly, audio-recorded telephone conversations can be “spoofed,” reflecting a call that was actually made by another person. This falsely misrepresents the caller’s identity in commercial transactions. Likewise, video-recorded events can be digitally-edited to portray events in a deceptive context.
In addition, ESI can be damaged in storage or mangled in transmission with inadvertent computer-generated changes in spelling, punctuation, layout, or deletion. Viruses and malware can wreak havoc with ESI by creating or transmitting bogus documents, or by altering or deleting legitimate business records.
ESI is often a crucial component of evidence that comes to light during pretrial discovery. Federal Rules of Evidence 901 and 902 provide time-tested standards for assessing authenticity that courts in recent years have applied to determine whether the proponent of ESI has produced “evidence sufficient to support a finding that the item is what the proponent claims it is.” FRE 901(a). Examples of successful authentication methods include testimony of the person who created, transmitted, or received the ESI that the contents is what it purports to be. FRE 901(b)(1).
Traditional methods of authenticating evidence are not sufficient in litigation where only forensic experts are competent to testify to issues beyond the ken of lay factfinders. Examples include whether a person or virus created or transmitted a particular document, whether a particular document was backdated, edited, or deleted, or indeed whether viruses lodged within an electronic device are capable of creating or transmitting a disputed document. United States v. Browne, 834 F.3d 403, 415-16 (3d Cir. 2016), cert. denied, 196 L.Ed.2d 572 (2017) (no reversible error due to proper authentication through extrinsic evidence from other chat participants).
Jackson Lewis attorneys are available to answer inquiries regarding trial strategy and other concerns on use of evidence in workplace litigation.