Electronic Evidence

By Alan Gahtan - LEXPERT Magazine, December 1999/January 2000

Computer technology has revolutionized the way our clients deal with information and run their businesses. Increasingly important business information is being created, stored and communicated electronically. Many types of information that can play a useful role in litigation or criminal prosecutions are no longer printed on paper and stored in paper files but rather are stored in a computer system or in computer-readable form. As this reliance on computer systems has increased, lawyers have begun to realize the valuable electronic treasures that are now being kept in these systems many lawyers and prosecutors are now aggressively targeting electronic data. Courts are also increasingly granting sanctions against parties that fail to properly preserve and disclose it.

A growing proportion of information stored inside a computer system is never printed on paper. Even where paper printouts of documents or agreements are available, older draft versions may only be available in electronic form. The electronic version of a document may also contain additional information which is not shown when the document is printed.

Quick action may need to be taken in order to preserve relevant evidence that is contained in electronic form. This is a concern because electronic versions of documents are not normally destroyed when the computer is instructed to delete the document. Rather, the computer marks the space occupied by the document as available for re-use and hides the display of that document when the directory of documents is displayed. Deletions are performed in this manner in order to facilitate rapid execution of computer operations (because magnetic media (whether it is business data on a computer hard disk or an old episode of L.A. Law on a video tape) can only be erased by overwriting it with new information, and this can be time consuming).

An early Canadian case which considered some of these issues was Reichmann v. Toronto Life Publications Co. (66 O.R. (2d) 65, [1988] O.J. No. 1727, 30 C.P.C. (2d) 280 (Ontario High Court)). In that case the defendants produced a printed copy of a manuscript but the plaintiffs insisted on a copy of the electronic version in order to search for information not contained in the printed version. The court concurred and held that the computer disk fell within the wider definition of a document and had to be produced - a printout would not suffice.

An electronic version of a document may also contain important information which may be useful to show the origin of a particular document. For instance, several months ago, it was revealed that Microsoft Office inserts special identification numbers in documents (created in Word, Powerpoint or Excel) which can sometimes be used to trace the source of a document to a particular computer. An embarrassed Microsoft was quick to provide a patch to kill this undocumented "feature".

Lawyers representing parties with large amounts of electronic data need to understand that their clients' data will be targeted for electronic discovery and need to advise their clients on how to prepare. Defensive strategies that should be implemented prior to litigation include a proper document retention program, periodic purging of magnetic media and the implementation of a document management system. Once litigation has commenced, defendants need to be advised on how to preserve relevant electronic evidence adequately, in order to avoid possible sanctions or a negative inference at trial.

Considerations regarding electronic evidence should also be reviewed by all lawyers in the operation of their practice in order to guard against inadvertently disclosing confidential client information or strategies. For instance, diskettes used to provide copies of documents may contain other documents which have been "deleted" but not actually "erased". Such documents may even survive a re-formatting of the diskette. Prudent law firms should therefore more new diskettes freely available to secretaries and ensure that "used" diskettes are not re-used and sent outside the office (at least not without the information systems staff confirming that all recoverable data has been erased). Also, any confidential information on the hard disks of surplus computers should be destructively erased using special utilities available for this purpose.

Another important caveat relates to the "fast save" option available in most word processing programs. This feature, which is turned on by default, may result in the word processing program saving a copy of a document which contains deletions and other editing changes. Although no longer visible if the document is viewed using the word processing program or printed out, such changes can be displayed if the documents are viewed using an editor (even the Wordpad application which is included in Windows).

Lawyers in law firms that use Microsoft Word may want to review the way their secretaries use Word's revision tracking feature. For instance, a lawyer may receive a draft version of a document, mark up some changes and then send the final version to the "other side". Word's revision tracking feature will often be used to show the changes between the two drafts. However, when told to send a "clean" copy, some secretaries may simply toggle off the feature which displays the black-line markings. In such cases, the recipient would be able to re-toggle the display feature and identify all the recent changes (including deletions).

Lastly, some word processing programs may save a certain number of "undo" operations along with the electronic version of a document. A recipient of the electronic document can simply click on "edit" and "undo" to see recent changes that were made to the document. If you are using WordPerfect, ensure that the "save Undo/Redo items with document" feature is turned off.

© 2005 Alan M. Gahtan. All Rights Reserved | Use is subject to these Legal Terms
Disclaimer: Not all materials may be applicable in your jurisdiction. Not intended to be a substitute for professional advice. No implied endorsement of, or affiliation with, any linked sites. Path to individual pages may change - please link to home page only. Linking Info