Digital Evidence: What You Need to Know

October 22, 2019
Brandon S. Harter

This afternoon I presented a continuing education course to my colleagues in the Lancaster Bar Association about digital evidence. But digital evidence is not just for lawyers to worry about! So let’s go over a few points everyone should remember.

  1. Evidence needs to be preserved as soon as you suspect a dispute might happen – One of the easier things to trip over is the duty to preserve digital evidence. Not because you will intentionally destroy it, but because of how easy it is to lose digital information. Whether the information was on a former employee’s laptop (which was reset and given to another employee) or on a cell phone that got wet, digital evidence has a habit of disappearing. That can leave you at a significant disadvantage. So when you think a dispute might happen, find a way to back that information up!
  2. How you collect evidence changes how impactful it is in court – So your lawyer tells you they need to see the text messages you exchanged with your landlord/employer/business partner about the dispute. Can you take a screenshot of just the text and use that in court? Sure. But you are opening yourself up to a host of arguments you manipulated the image or are excluding context. The better way is to collect that evidence by preserving the entire text message exchange. The same is true for emails (send the digital, don’t print it out or forward it) and social media information. And you do not need to hire a forensic IT firm to handle the collection. There are plenty of ways to handle that in a more cost-effective way.
  3. Digital evidence is authenticated just like other evidence – One reason lawyers are hesitant to use digital evidence is that they are afraid of what will happen if the other side objects to its authenticity, i.e. claiming the digital evidence could be fake. But you can authenticate digital evidence just like anything else. For example, you can admit a picture of the scene of a car accident by having a witness testify that it truly and accurately represents the accident scene they remember. The same is true for an image posted to Facebook. Have a witness testify they took the picture or that they were at the event and it looked just like that. First-hand knowledge is always a way to get things in front of the judge and jury.

Technology improves so many aspects of the legal profession. And the strength of the evidence we provide in court is no different. Make sure your attorney is ready to use digital evidence to the fullest to win your case.

Brandon Harter is a litigator and technology guru at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from William & Mary Law School and advises clients on issues of Civil Litigation & Dispute ResolutionMunicipal Law, and chairs the firm’s Tech Law Group.