Admitting that We're Litigating in the Digital Age: A Practical Overview of Issues of Admissibility in the Technological Courtroom

FDCC Quarterly, Fall 2008 by O'Toole, Leslie C

I.

INTRODUCTION

"The law does not, and should not, prohibit proficient professional employment of new technology in the courtroom. This is, after all, the twenty-first century."2

"Given the pervasiveness today of electronically prepared and stored records, as opposed to manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence."3

Technology is changing the practice of law, and litigation is, of course, no exception. As new means of data collection and evidence presentation become more commonplace, the digital dilemmas and computer quandaries of trial are rapidly increasing. From an evidentiary standpoint, many new technologies are treated in the same way as more "traditional" evidence. But the differences can be deadly - at least if counsel wants certain evidence admitted, or specific evidence kept out.4 As one commentator has noted, computer-generated evidence "warrants special care and caution because of its persuasive impact, its susceptibility to manipulation, and the undue reliance jurors may place on it because of their familiarity with the medium."5

The present article therefore walks through several issues regarding the admissibility of evidence in the digital age. Following an overview of the admissibility hurdles that should be on every litigator's checklist when it comes to new technologies, the article takes a closer look at several particular areas - animations, simulations, and on-screen presentation of evidence - delving into some of the hidden dangers lurking with respect to each. The lessons to be learned are applicable to many other types of new technology as well.

II.

NEW TECHNOLOGY AND THE PRACTICE OF LAW

The introduction of increasingly sophisticated technology into the courtroom is transforming the process of litigation. These transformations can be both observed and felt throughout the trial process, beginning with the electronic filing of documents and continuing all the way through the possibility of submitting appeals in so-called digital format briefs. One result is that trial lawyers are becoming increasingly reliant on images, graphs, animations, and other visual aids.6

As these visual aids replace what once would have been only conventional images and the attorney's spoken words, the perception of the information used at trial is altered. "When judges and jurors scrutinize photographs, videos, computer animations, and other graphic materials" in making their decisions "they are doing something very different from what they are doing when they listen to testimony or read documents."7 In other words, "courtroom display technologies shift the criteria by which effective communication is assessed by fact-finders."8

One consequence of this shift in communication criteria can be that "[ejffectiveness may be determined by the context rather than by factors intrinsic to the technical details."9 In short, these changes are causing litigators to actually "strategize their cases differently."10 Trial attorneys are therefore finding that to litigate successfully in today's digital age, they must maintain a certain degree of tech savvy. But a focus on the technology itself is not enough. Indeed, the most sophisticated computer animation in the world will not be of any use if you cannot get the evidence admitted in the first place." At the same time, there are elements inherent in the changing dimensions of technology-based trial that may alert the attentive litigator to when, and how, to keep out an opponent's dazzling evidence.12

III.

ADMISSIBILITY

A. General Issues

"The use of computer generated animations, graphics and simulations is one of [the] most visible manifestations of technology in the litigation process."13 The Federal Rules of Evidence "do not separately address the admissibility of electronic data," but they do "apply to computerized data as they do to other types of evidence."14 Moreover, "certain general principles have appeared in the courts, which govern the treatment of [this] type of evidence."15

Chief Magistrate Judge Grimm of the District of Maryland recently laid out, in a thoughtful and thorough opinion, several guidelines for the admissibility of electronically stored and presented evidence.16 According to Magistrate Judge Grimm, the admissibility of electronically stored or presented information is "determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence."17 Although each hurdle may not apply to every piece of evidence, stumbling on any single one of the applicable hurdles could bar the admission ofthat evidence.18

The key hurdles are

1. Relevance: Is the evidence relevant under Rule 401?

2. Authenticity: Can the evidence be authenticated under Rule 901(a)?

3. (Non-)hearsay: Is the evidence hearsay, and if so, does it fall within one of the exceptions of Rules 803, 804, or 807?