ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION A presentation for ISACA and IIA. Alex Potts 20 May 2008

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1 The Offshore Law Firm Bermuda & British Virgin Islands & Cayman Islands ADMISSIBILITY OF ELECTRONICALLY STORED INFORMATION A presentation for ISACA and IIA Alex Potts 20 May Bermuda & British Virgin Islands & Cayman Islands & Dubai & Hong Kong & London & Singapore

2 Introduction Admissibility of ESI Weight of ESI Bermuda law of evidence Electronic Transactions Act 1999 Evidence Act 1905

3 Admissibility of ESI Mere fact that ESI is discoverable does not mean that: it is admissible at trial (to prove the truth of its contents, or otherwise); or it will be given any particular weight by the trial judge. Issues of admissibility and weight are issues of evidence: to be determined by the law of the FORUM.

4 Bermuda law of evidence The admissibility and weight to be placed on ESI in civil litigation in Bermuda are governed by: the Electronic Transactions Act 1999; the Evidence Act 1905; the Rules of the Supreme Court 1985; and common law rules of evidence.

5 First type of ESI Where the computer has been used as an electronic filing cabinet, storing records of information provided to it by human beings. Eg: a scanned copy of a manuscript note of a meeting. Essential characteristic of this type of ESI is that it originates in observations made by human beings.

6 Second type of ESI Where the computer has generated records directly by itself. Eg: a record of an electronic data interchange message, such as a purchase order produced automatically by a stock control system.

7 Why might ESI be inadmissible? The ESI might not be an original. However, the best evidence rule has largely been extinguished in Bermuda. Also restricted by the Electronic Transactions Act 1999 and the Evidence Act 1905.

8 Why might ESI be inadmissible? The ESI might be hearsay, i.e. a secondary record of a statement made by a person of some fact which that person has observed or been involved in. However, the application of the hearsay rule has been restricted by the provisions of the Electronic Transactions Act 1999 and the Evidence Act 1905.

9 Why might ESI be inadmissible? Ultimately, it is the possibility that the ESI may have been corrupted that results in the need for it to be scrutinized by the Court Corruption of ESI could be: Intentional; Reckless; or Inadvertent.

10 Electronic Transactions Act 1999 The Electronic Transactions Act 1999 is based on the UNCITRAL model law on e-commerce. Its objects: to enhance the reputation of Bermuda as an international business centre; to facilitate electronic transactions on a technology neutral basis by means of reliable electronic records;

11 Electronic Transactions Act 1999 to remove uncertainties in relation to conducting transactions electronically with respect to the requirements for documents and for signatures to be in writing; to promote public confidence in the validity, integrity and reliability of conducting transactions electronically; and to promote the development of the legal and business infrastructure necessary to implement electronic transactions securely.

12 Electronic Transactions Act 1999 Section 8: ESI shall not be denied legal effect, validity, admissibility or enforceability solely on the ground that it is: in the form of an electronic record; or not contained in the electronic record purporting to give rise to such legal effect, but is referred to in the electronic record.

13 Electronic Transactions Act 1999 Section 14: in any legal proceedings, nothing in the rules of evidence shall apply so as to deny the admissibility of ESI in evidence: solely on the ground that it is ESI; or if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the ground that it is not in its original form.

14 Electronic Transactions Act 1999 Section 14: ESI will be given due evidential weight, and, in assessing the evidential weight of ESI, regard shall be had to: the reliability of the manner in which the ESI was generated, stored or communicated; the reliability of the manner in which the integrity of the ESI was maintained; the manner in which the originator was identified; and any other relevant factors.

15 Electronic Transactions Act 1999 The ETA does not contain deeming provisions in respect of any applicable law or jurisdiction for dispute resolution. It is an open question whether the ETA only applies to the extent that Bermuda law is otherwise applicable as the law of the FORUM, or whether it also applies to the extent that Bermuda law is applicable as the substantive law of the dispute (or of any particular issues arising).

16 Evidence Act 1905 Section 27E of the Evidence Act 1905 deals with the admissibility of statements contained in documents produced by computers. Based on section 5 of the UK s Civil Evidence Act 1968 (40 years old - no longer in force in the UK). Drafted with mainframes, rather than current PCs, laptops, and IT systems and networks in mind.

17 Evidence Act 1905 Anyone who wishes to introduce ESI at trial must produce evidence that will establish that it is safe to rely on the ESI produced by the computer: that the ESI was produced by the computer during a period over which the computer was used regularly to store or process ESI; over that period there was regularly supplied to the computer ESI of the kind contained in the statement; throughout the material part of that period the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the ESI or the accuracy of its contents.

18 Evidence Act 1905 Party must produce a certificate, signed by person in responsible position relating to the operation of the device or its management that, to the best of his knowledge and belief: identifies the ESI and describes the manner in which it was produced; gives such particulars of any device involved in the production of that ESI as may be appropriate for the purpose of showing that the ESI was produced by a computer; deals with any of the matters to which the conditions mentioned above relate.

19 Evidence Act 1905 Section 27F: in estimating weight to be attached to ESI, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the ESI. In particular: to whether or not the ESI was supplied to the relevant computer contemporaneously with the occurrence or existence of the facts dealt with in that information; and

20 Evidence Act 1905 to whether or not any person concerned with the supply of ESI to that computer, or with the operation of that computer or any equipment by means of which the document containing the statement was produced by it, had any incentive to conceal or misrepresent the facts.

21 R v Shephard [1993] 2 WLR 102, HL Documents produced by computers are an increasingly common feature of all business and more and more people are becoming familiar with their uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case.

22 R v Shephard [1993] 2 WLR 102, HL I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.

23 Conclusion ESI will be admissible to prove the truth of its contents, and given due weight, provided that: An organisation implements and maintains a reliable system for the creation, management, retention, access, retrieval and disposal of electronic records, documents, and information; Its staff are properly trained to operate all aspects of the system;

24 Conclusion In the event of a dispute, its staff are able to give cogent and reliable evidence as to: the integrity and reliability of the system (including its hardware and software), as well as its contents; the identity of the originator of any relevant record, document or information; from the time that any relevant record, document or information was first generated in its final form as an electronic record or otherwise.

25 Conclusion The admissibility and weight of any particular item of ESI will depend on: the provenance and custody of the chain of electronic copies going back to the original; the opportunities for unintentional corruption; and the opportunities for deliberate alterations to content, timing, authorship, or retrospective fabrication.