How Are Multi-Dimensional Electronic Documents Different than Hard Copies?
While we most often discuss eDiscovery in the context of civil cases, sometimes criminal case law can offer beneficial insight. In State v. Ratliff, Nos. 201303466, 20130332, 20130341 (S.D. July 17, 2014), the specially concurring opinion is helpful to plaintiff trial attorneys to understand the questions that will be raised as adjudicative evidence shifts from one-dimensional paper to multi-dimensional electronic documents.
Defendants appealed their criminal judgments based on the fact that during their trial, the jury was shown silent surveillance video of the break-in. During deliberations, the jury reviewed the video of the break-in. Without knowledge of the court, the jury also heard audio from the video that was not played when the video was admitted into evidence.
In reviewing the case, the Supreme Court of South Dakota found that there was still sufficient evidence to convict the defendants.
In his special concurrence, Judge Crothers looked at where the holding would lead the court as electronically stored information becomes a greater source of evidence.
Judge Crothers emphasized a few points in particular:
1. Lawyers and judges must be increasingly vigilant about identifying and precisely knowing what “evidence” is being admitted.
2. Lawyers will need to understand metadata and its properties when other forms of electronic documentation are introduced since the question of whether metadata is being admitted along with the information on the face of the document will often factor into whether lawyers are able to “provide competent representation to a client.”
3. Judges will increasingly be called on to know and understand the depth of evidence used in judicial proceedings with the present case demonstrating the importance of monitoring electronic evidence in jury trials where a verdict could be reversed if non-admitted evidence reaches the jury room.
4. When the court is presented with electronically created or stored information, the judge must know whether the submitted evidence includes only that information visible on the surface of the document, or whether metadata is included.