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The Foundations of Digital Evidence

Re. Vee Vinhnee

When traditional courts met with electronic evidence…

The 2005 case of Re. Vee Vinhnee is, to this day, a leading case in the standards of admissibility of digital evidence in the courts, with its findings ever conclusive and integral to eDiscovery a decade later. In this bankruptcy case, key witness evidence in the form of electronic business records from AMEX was deemed “illustrative only” and inadmissible due to lack thereof authentication, (Rule 901, Federal Rules of Evidence).

An iconic case for digital records and electronically stored information management, the Vinhnee court articulated a stricter standard in admissibility of “untraditional” forms of evidence and the need for authentication of these electronic documents.

The concerns of the court were founded on the acceptance of electronic business records as admissible evidence, and so this judgement raised the standards of accepting mere printouts of digital content as verified, authentic evidence. This opinion marked a dynamic departure from previous standards of authentication for electronic records, establishing a foundation of principles still relevant a decade later.

Adaptation of Standards of Authentication – Making Sense of Paperless…

The United States Bankruptcy Appellate Panel of the Ninth Circuit upheld the exclusion of the records and outlined the importance of establishing a threshold of standards in accepting digital records as evidence,stating that

The paperless electronic record involves a difference in the format of the record that presents more complicated variations on the authentication problem than for paper records”

and instead of the traditional standards of Rule 803(6) – verification by testimony, utilized Professor Imwinkelried’s “prism” and 11 step process for authenticating computer records. Commentators argued that Rule 803(6), when applied to computer records, didn’t satisfy the basic standards of authentication of evidence inherent within Rule 901(a) and that all records need to be authenticated under Rule 901.

The rejection of verification by testimony as self-authenticating was significant and changed the standards of authentication of computer, digital and electronic records.

Departure form Standard Forms of Evidence

The 11 step process for authenticating computer records explored in this case provided new levels of scrutiny and analysis from mere printouts of digital evidence. The court noted, however, that with advances in technology this scrutiny and method of authentication must adapt and be specific to records, due to the ease with which digital records can be altered or deleted. Vinhnee also cited contemporary commentators who, even a decade ago, highlighted the need to protect and preserve the integrity of electronic records.

The Appellate Panel gave due regard to the lower court’s ruling, but more importanlty, supported the new standrds of scrutiny and need to authenticate digital evidence.

The Future of Evidence:Digital Content and ESI

The Role of WebPreserver

This landmark case highlighted the new standards of requirements in submitting digital content and ESI as evidence to the courts; a mere printout or photocopy of a Screenshot or document is not sufficiently authentic. And so WebPreserver was created.

WebPreserver software was designed with the objective of creating reliable evidentiary standard documents from digital content and ESI found on social media, blogs and websites in line with Federal Rules of Evidence and other standards of litigation compliance.

With the easy installation of a Plug-in and single-click capture technology, WebPreserver software creates snapshots of evidence from any content placed on the internet and stores them in PDF and WARC formats for use in litigation; the perfect tool for legal professionals and law enforcement authorities.

Our unique features of digital e-signature (in line with the E-Sign Act) and automated time-stamp provide content specific circumstantial evidence to ensure your evidence is admissible in court. A Metadata format of your Snapshot can also be created for additional compliance measures.

Snapshots are instantly created, easily downloaded, archived and organised. Additional resources include the ability to create and share personal files on our online platform, perfect for efficient sharing with clients and colleagues and easily organised with keyword tagging options.

Ensure that your evidence is always discoverable, reliable and admissible by utilising WebPreserver as a cost and time effective eDiscovery tool.

The information and materials on this blog are provided for general and informative purposes only and are not intended to be construed as legal advice. Content on this blog is not intended to substitute the advice of a licensed attorney, as laws are subject to change and vary with time, from jurisdiction to jurisdiction. Content on this blog may be changed without notice and is not guaranteed to be complete, correct or up-to-date.

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