Court rules that dictate procedures for admitting evidence should be updated to reflect the nature of contemporary digital recordkeeping, a pair of federal judges said during remarks at the Electronic Signatures and Records Association Conference, ongoing this week in New York City.

Until these rules and procedures for admitting evidence are updated to better address electronic documents, it's critical for institutions like banks and mortgage lenders and servicers to keep this challenge in mind when developing the technology and processes used to generate and manage records that may later need to be admitted in court.

"In the digital universe in which we live, the way we approach these questions is very different," said Judge John Facciola, a U.S. magistrate for the Washington, D.C. federal district court.

Often times, problems arise from "self-inflicted wounds, where the party that has very important evidence in a digital format fails to think far enough in advance" about ensuring it can successfully be admitted in court, said Judge Paul Grimm, a federal judge for the U.S. District Court in Maryland.

Current standards for proving the authenticity and contents of evidence were designed for a paper-based world. While they've been applied to records like electronically signed digital documents, it's not a precise transition, and issues like defining whether a piece of evidence is an original or duplicate writing, recording or photograph are complicated when they're presented digitally.

"Understanding the evidentiary framework that judges apply to this process is key," Facciola said.

For example, a will executed on paper can be authenticated with the testimony of the deceased's family or colleagues, or by circumstantial facts, like it being stored alongside a life insurance policy and other related documents. But that becomes harder with digital records.

"The traditional principles that we use may not be available…People don’t keep things in a desk drawer anymore," said Facciola, who added that courts have reached very different conclusions when applying the rules of evidence to electronic records.

When a digital file like an email is submitted as evidence, it ultimately comes down to a judge's interpretation of the rules of admissibility, "the threshold door before the jury can take into consideration a piece of evidence," said Grimm. He said a judge will determine "can a reasonable jury find more likely than not that this email is what it purports to be?"

"If he finds under the facts of the authentication that it's more reasonable than not…then he's going to let it in," Grimm said.

In a digital universe, the concept of what constitutes an original or copy of a document are hard to apply in court. It's naïve to think that computer evidence is only in one place, Facciola said, noting a pending case where a digital file that was thought to be lost was eventually recovered after nine years.

"The rules of evidence and duplicates really have nothing to do with the reality of the world in which we live," he said.

Despite this imprecise application of traditional rules, parties in a court proceeding can prove the authenticity of an electronic piece of evidence with forensic examinations and the digital trail of the record to demonstrate to the court whether the document is an original, a duplicate or a near-duplicate copy.

But even if an electronic document passes muster for a judge to admit it as evidence, parties must convince a jury to give the record the consideration it deserves.

When submitting electronic evidence, Grimm said lawyers should have the attitude that "I want to get it in with enough weight behind it that the jury accepts it," by clearly explaining to courts and juries the process sued to create and maintain the record to bolster "the weight and persuasiveness of this evidence."