Electronic Evidence

copyright 1997
Editor: Donald M. Cameron, Aird & Berlis
Contributors: David Castell

Contents

When litigation over transactions consummated electronically occurs, the same electronic records that created efficiency gains for business may create evidentiary challenges for law. There are several traditional rules of evidence that may present problems for the admission of computer records as evidence.

Authentication

To be admissible, evidence must be relevant to an issue that is in dispute. For evidence to be relevant, it must be authentic -- there must be proof of its source. A general rule of evidence is that the party seeking to introduce evidence, must provide some evidence of authenticity before it becomes admissible.[78] In most cases, the dispute is over the meaning of the contents of the message, so authentication is not an issue. However, given the ease with which the original of an electronic mail message can be forged, authentication may present a problem should the other party deny authorship of the message.

Simply relying on the e-mail address in the `From:' field of the message or on the person's typed name appearing at the bottom of the message for authentication may not be enough. However, there are a number of common-sense measures that can be taken:

The Iran/Contra Affair provided one example of a case involving authentication of electronic messages where parties sought to dissociate themselves from the messages.[79] E-mail messages were linked to John Poindexter and Oliver North through passwords required by the electronic mail system to send messages.

Best Evidence Rule

The best evidence rule is the requirement that the best evidence available be presented to the court. If an original is available, a copy is not acceptable as evidence. Since the division between `originals' and `copies' in the computer world is unclear, many raise this rule as a possible issue.[80] While there have been cases were parties sought to avoid admission of computer print-outs claiming them to be mere copies of the original computer records, courts have generally rejected this argument and admitted the print-outs as original records and not copies.[81] In the United States, the Federal Rules of Evidence explicitly accord with this result.[82]

Hearsay

The Hearsay rule was summarized by the Supreme Court of Canada in R. v. O'Brien:

It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.[83]

Therefore, a document, electronic or otherwise, is not admissible to prove the truth of its contents unless it falls within one of the exceptions to the hearsay rule.

In the contract context, hearsay may present less of a hurdle. A contracting party does not generally offer an electronic message into evidence for the truth of its contents (hearsay), but instead offers it to prove the sender obligated himself to buy something or to show the order existed. Courts determine the existence of a contract based on the reasonable expectations of the party receiving the communication rather than the truth of the communication. If an offer states "I will pay you $500 to paint my house", whether the offeror will indeed pay $500 is irrelevant to determining whether contractual obligations are created. If the recipient of this message accepted the offer and painted the house, but was never paid, the offeree would not be affected by the hearsay rule since they only need to prove what they were told, not the truth of it.

This is not to say that the hearsay rule plays no part in messages exchanged in the formation of a contract. Other than the contents of the message, issues that may arise in a contract dispute are when the message was sent and received, by whom it was sent and received, and whether the message received was the same as that sent. Introducing the message to prove any of these issues could constitute hearsay.[84]

There are a number of categorical exceptions to the hearsay rule. The touchstone for these categories are a "circumstances of necessity and reliability".[85] The most relevant exception is the business records exception. This exception was originally created by the courts[86], but is now legislated into federal and provincial Evidence Acts.[87] The result is that records created in the ordinary course of business may be admitted for the truth of their contents.

Normally records produced in the ordinary course of business are admitted under this categorical exception. However, with the advent of computer records, there have been signs of retreating to the underlying principles -- necessity and reliability. While courts have accepted the necessity of accepting computerized records[88], they are concerned with reliability. As a result, the party seeking to admit the computer record into evidence may be required to introduce evidence reflecting the entire record-keeping process -- the procedures and processes relating to the input of entries, storage of information and its retrieval and presentation.[89] Without providing this foundation of reliability, the courts may refuse to admit the evidence even if they are deemed to be business records.[90]

The underlying principles may also work to admit computer records where they are otherwise inadmissible under the Evidence Acts. Under the provincial Evidence Acts, it must be proven that the records were made contemporaneous with the events recorded. In the Kinsella v. Logan[91] case, the court held computer generated credit reports to be inadmissible under the New Brunswick Evidence Act[92] since it is impossible to prove the contemporaneous requirement was met. The problem was that the credit records are updated by erasing the current record and replacing it with a new one. Despite this problem, the court admitted the credit reports using the general principles of necessity and reliability.

Guidance for what foundation evidence is required can be found in the legislation and case law from other jurisdictions.[93] Generally, the foundation evidence is given by testimony of a person who either controls the record keeping system or is familiar with the manner in which the records are processed and maintained. The evidence should speak to the reliability of the method of input, storage, and output of the system, the reliability of the computer system itself, and reliance on the system.

For input reliability, evidence about the manner in which the data was originally entered into the system and measures taken to ensure accuracy of data entered may be required. Information should be entered into the system in the ordinary course of business. This is a question of both the type of information and the timing of its entry. If the system is called upon to prove that something did not occur based on the absence of a record[94], it is important to demonstrate that all records are recorded in addition to the reliability of the records that are entered.

Despite the importance of input reliability in determining the value of the computer records, courts have on occasion been remiss in recognizing this issue. "Garbage in, garbage out" is a common phrase used to describe the limits of a computers value in processing data -- the value of the output is directly related to the value of the input. However, recent U.S. case law has lead commentators to conclude that the treatment of computer record evidence by the court can be described the phrase "garbage in, gospel out".[95]

In one case, computer entries of licence plates made by border guards were allowed as evidence because the guards had no motive to fabricate.[96] However, the courts omitted to considered the input reliability issue. The guards also had no motivation to ensure accuracy since no one routinely relied on the entries for any reason. There were no procedures for ensuring accuracy. In fact, the GAO tested the computer system and found it to be incomplete, inaccurate and unreliable.[97]

Storage reliability is perhaps the most important issue for computer record reliability since input and output are often fleeting moments in the life of a record compared to its time in storage. The main issue with storage is alterability -- both unintentional and deliberate. Computer records are subject to accidental corruption, a phenomenon that is uncommon in the paper world. Computer records are also intrinsically more prone to untraceable, deliberate alteration. If users are free to modify or delete stored records, the evidential value of a record or the lack of a record would be marginalized.

Reliability of storage depends not only on the physical media but also access security. With some media, such as WORM (write once, read many) disks, data cannot be altered once stored. In systems with alterable storage media, the software that controls the media may have access security features preventing accidental or deliberate alteration. In the Iran/Contra case, John Poindexter and Oliver North deliberately erased thousands of electronic mail messages to conceal evidence. However, a backup system that only accessible to the system administrator contained copies of the deleted messages and provided the necessary evidence. Whether by physical media, security systems, or redundant copies, it is important that some level of storage reliability is achieved to ensure that your computer records will have some evidentiary value.

Although a lessor issue, evidence of how the printout was generated may be important in demonstrating that the printout is a reliable reflection of the records in the computer.

Finally, evidence of reliance on the records in making business decisions in the period surrounding the entry of the record in question may also be required. A lack of reliance on the system infers that reliability of the information is not a priority.

Legal Response

TPA Agreement

The standard Trading Partner Agreement requires parties to keep a transaction log in the specified manner. Like the provisions related to the writing requirement, the parties agree that the transaction log is admissible as prima facie proof of the accuracy of the message contents and agree to waive any defence to the log's admission.[98]

U.N. Model Provision

The U.N. Model law contains the following provision:

Article 9: Admissibility of evidential value of a data record
(1) In any legal proceedings, nothing in the application of the rules of evidence shall apply so as to prevent the admission of a data record in evidence

(a) on the grounds that it is a data record; or,
(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not an original document.

(2) Information presented in the form of a data record shall be given due evidential weight. In assessing the evidential weight of a data record, regard shall be had to the reliability of the manner in which the data record was generated, stored or communicated, to the reliability of the manner in which the information was authenticated and to any other relevant factor.

78For example, in R. v. Petersen (1983), 45 N.B.R. (2d) 271, the Crown offered an anonymous letter, claiming it to be that of the accused. For authentication, the Crown offered evidence that the letter was typed on a typewriter at the accused's residence and the testimony of the accused's brother that he didn't write it.

79See United States v. Poindexter, No. 88-0080-01 (HHG) (D.D.C. May 29, 1990) (LEXIS, Genfed library, Courts file)

80See e.g., Wright, supra, chapter 10; Thomas, supra at 1165.

81See R. v. Vanlerberghe (1978), 6 C.R. (3d) 222 (B.C.C.A.) and R. v. Bicknell (1988), 41 C.C.C. (3d) 545 (B.C.C.A.) (computer printouts were admissible under business record provisions, s. 30 of Canada Evidence Act); R. v. Bell and Bruce (1982), 35 O.R. (2d) 164, affirmed without reasons [1985] 2 S.C.R. 287 (computer printouts admissible under bank record provisions s.29 of Canada Evidence Act).

82Federal Rules of Evidence, Rule 1001(3) states "[i]f data are stored on a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an `original'."

83R. v. O'Brien, [1978] 1 S.C.R. 591 at 593.

84Nicoll, supra

85R. v. Khan, [1990] S.C.R. 531

86Ares v. Venner, [1970] S.C.R. 608

87Canada Evidence Act, R.S.C. 1985, c. C-5, s.30; B.C. s.48; Sask. s.31; Man. s.49; Ontario s.35

88In Tecoglas Inc. v. Domglas Inc. (1985), 3 C.P.C. (2d) 275 (Ont. H.C.), the court acknowledged the necessity of admitting records from a computerized accounting system: "It would be almost impossible and certainly impractical to prove expenditures ... without admitting the computer records or documents based on the computer printout."

89R. v. McMullen (1979), 47 C.C.C.(2d) 499 (Ont. C.A.) at 506.

90See R. v. Sheppard (1992), 97 Nfld & P.E.I.R. 144 (Nfld. S.C.); R. v. Rowbotham (1977), 33 CCC (2d) 411 at 416 (Ont. Co. Ct.); For a different view see J.D. Ewart, Documentary Evidence in Canada, (Toronto: Carswell, 1984). Ewart argues that there is no reason to believe that such a foundation is required, citing R. v. Sanghi (1971), 6 CCC(2d) 123 (N.S.C.A.) and R. v. Vanlerberghe (1978), 6 C.R. (3d) 222 (B.C.C.A.) as two cases where there appeared to be no foundation evidence concerning the reliability of the computer system.

91(1995) 38 C.P.C. (3d) 128

92R.S.N.B. 1973, c. E-15, s. 49.

93See Ken Chasse, "Computer-Produced Records in Court Proceedings", (1994) Appendix J of the Proceedings of the Uniform Law Conference of Canada 1994 Annual Meeting, archived at www.law.ualberta.ca/alri/ulc/94pro/e94j.htm

94See e.g., R v. Shephard (1993) 1 All. E.R. 225 (HL); theft case where cash register records were used to show accused did not purchase goods.

95See Robert Garcia, "Garbage In, Gospel Out", (1991) 38 UCLA L. Rev. 1034. According to Garcia, the quoted phrase is attributable to David Burnham. See D. Burham, A Law Unto Itself: Power, Politics and the IRS 324 (1989). According to Pierre Galois, "If you put tomfoolery into a computer, nothing comes out but tomfoolery. But this tomfoolery, having passed through a very expensive machine, is somehow ennobled and no one dares criticize it." Shannon, The Apt Quotation, N.Y. Times, June 12, 1990, at C11, col. 1.

96United States v. Orozco, 590 F.2d 789, 793-94 (9th Cir.), cer. denied, 442 U.S. 920 (1979)

97Orozco involved the Treasury Enforcement Communication System. A GAO study found the Treasury Enforcement Communication System II, which apparently is a later system, to be deficient. Shenon, Border Screening Against Criminals Is Seen as Flawed, N.Y. Times, May 10, 1990, at A1, col. 3 (cited in Garcia)

98EDICC's Standard TPA:

7.04 Evidence
Each party hereby acknowledges that a copy of the permanent record of the Transaction Log certified in the manner contemplated by this Agreement shall be admissible in any legal, administrative or other proceedings between them as prima facie evidence of the accuracy and completeness of its contents in the same manner as an original document in writing, and each party hereby expressly waives any right to object to the introduction of a duly certified permanent copy of the Transaction Log in evidence.

Return to:

Cameron's IT Law: Home Page; Index

Cameron's Canadian Patent & Trade Secrets Law: Home Page; Index

JurisDiction Home Page