June 01, 2016

The Brave New World of Internet Evidence: It’s Not as Brave or New as It Seems

Questions of admissibility involved in digital evidence are usually resolvable by existing evidentiary principles.

Hon. Jeffrey Cole

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Given the complexities of digital technology and the evolving and staggering growth of the Internet, it is not surprising that many “[j]udges [and lawyers] approach social media [and other forms of Internet] evidence with trepidation.” Deborah Jones Merritt, Social Media, the Sixth Amendment, and Restyling: Recent Developments in the Federal Laws of Evidence, 28 Touro L. Rev. 27, 51 (2012).

But that angst is unnecessary if we keep in mind that it is the “novelty of the media,” not the inadequacy of the Rules of Evidence, that is the source of much of the difficulty. Gregory P. Joseph, Internet and Email Evidence (Part I), 58 Prac. Law. 19 (2012). And so most cases and commentators have concluded—although sometimes hesitatingly—that questions of admissibility involved in Internet and digital evidence are resolvable by existing evidentiary principles, without enhanced scrutiny or more rigorous standards for authentication.

The Federal Rules of Evidence that most frequently appear in connection with issues involving Internet evidence are Rules 901 and 902, dealing with authentication, and 802, the hearsay rule. It is critical to identify early in the case potential evidentiary issues associated with the admission of Internet evidence and to develop a plan to deal with them. Failure to obtain sufficient authenticating evidence is “almost always . . . [a] self-inflicted injury, which can be avoided by thoughtful advance preparation.” Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 542 (D. Md. 2007).

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