O'Leary, Edward P. "Satisfying the Best Evidence Rule When the Original Document Exists Only as Electronically Stored Information" Proof 18:1 (Fall 2009), p.3-15.
Existing Citations
best evidence (p.3): The best evidence rule is a common law rule of evidence that dates back at least to the 1700s. The justification for the rule can best be understood by considering the circumstances in which it arose. In the eighteenth century, copies of documents were typically prepared by hand; so the basis for the rule was the thought that if an original document was not examined, there was an increased possibility of fraud or mistake when relying upon the accuracy and veracity of a copy. However, with the development of a myriad of sophisticated electronic devices to accurately create, copy, and print documents, the rationale for the rule has been significantly eroded. As a result, the best evidence rule has evolved over time to reflect and incorporate the ever-present and changing effects of technology in our society. Even though today documents that are created, stored, and printed electronically are routinely admitted into evidence without undue expense or delay--provided there is no dispute regarding fairness or the document's authenticity--pitfalls still remain. In particular, given the myriad different forms that electronic information can come in, practitioners need to expand their concept beyond traditional documents and consider whether any information stored electronically is subject to the best evidence rule. (†1411)
best evidence : The need to satisfy the best evidence rule when seeking to admit ESI [electronically stored information] is a common hurdle faced by parties in both civil litigation and criminal cases. The use of computers and other electronic devices for creating and storing information has largely replaced traditional methods of recordkeeping. Communicating by electronic mail, text message, and instant message is now an ordinary occurrence. Electronically stored information comes in a variety of forms, including email, websites, Internet postings, digital photographs, and computer-generated documents and data files. ESI also includes voice mails, instant messages, e-calendars, audio files, data on handheld devices, animation, metadata, graphics, spreadsheets, drawings, and other types of digital data. Understanding the interplay between ESI and the best evidence rule allows litigants to effectively plan for having their electronic evidence admitted regardless of how that information is created, stored, retrieved, or printed.
The definition of "writings, recordings, and photographs" set forth in Federal Rule of Evidence 1001 expressly includes evidence that is electronically generated and stored. Where computers and other electronic devices are used to create and store records, the display of such information is typically accomplished through printouts. Over the past several decades, printouts of electronically stored information have become common evidence at trial, and the law relating to the relationship between ESI and the best evidence rule continues to develop as technology continues to transform the way we live and work. (†1412)
