Challenges of Electronic Taking of Evidence: Old Problems in a New Guise and New Problems in Disguise

Abstract

The rapid evolution of technology and the digitisation of our society are without doubt the biggest accelerators of change in the law and practice of evidence taking. In the United States, electronic discovery has been referred to as the hottest topic in litigation. Electronic evidence taking not only raises legal questions but also has societal implications. People share their thoughts and – usually insignificant – daily events through wide-reaching social media, often with little forethought, and, for most of us, our smart phone contains a rich body of information on many aspects of our lives. In recent years, the gathering of electronic evidence has also attracted media attention. One topic that has gained attention is the use of information gathered from social media and networks. This paper discusses present problems and future challenges of electronic evidence. It is to a great extent based on eleven national reports and overviews collected for this research. It aims to map the legislative frameworks, to discuss the most important legal issues electronic evidence has raised in the different jurisdictions, and to point to some of the future challenges. Key issues are (1) the collection and production of evidence by means of e-discovery and e-disclosure; (2) the admissibility, reliability, and authentication of electronic evidence; and (3) the interpretation and evaluation of electronic evidence, including the use of social media and emojis.

Keywords: Electronic Evidence, Discovery, Disclosure, Social Media, Technology Assisted Review, Predictive Coding, Emojis, Emoticons

JEL Classification: K