The transition of evidence from paper to digital imposes new challenges to ensuring a proper “chain of custody'” in the authentication of digital evidence.
The legal group of Merrill Corporation has recently compiled a report which addresses this and related issues:
Report: AUTHENTICATING DIGITAL EVIDENCE: IDENTIFY AND AVOID THE WEAK LINKS IN YOUR CHAIN OF CUSTODY.
From the Introduction:
Introduction Chain of custody is a familiar concept in criminal law, but until recent years it was foreign to civil litigators. In the criminal law arena, police would seize evidence, seal it in a plastic bag, label it and sign it into a locked evidence room. If the evidence was taken out for any purpose (for example, for laboratory examination or testing) the withdrawal and its return would be noted on the custody log. Any subsequent removal of the evidence from the locked room would be unlikely until it was presented as evidence at trial.
Historically, evidentiary chain of custody was rarely an issue in civil litigation. The advent of the digital age has made it a major issue because the actual nature of evidence in civil litigation has undergone a radical transformation from tangible paper to electronic data.
In the electronic discovery publication, Arkfeld on Electronic Discovery and Evidence1, the author notes the following regarding the importance of chain of custody:
The purpose of testimony concerning chain of custody is to prove that evidence has not been altered or changed from the time it was collected through production in court.
Gallego v. United States of America, 276 F.2d 914 (9th Cir. 1960) (citing United States v.
S.B. Panicky & Co., 136 F.2d 413, 415 (2d Cir. 1943)). Chain of custody testimony would include documentation on how the data was gathered, transported, analyzed and preserved for production. This information is important to assist in the authentication of electronic data since it can be easily altered if proper precautions are not taken.
It is also much more complicated to handle electronic data as evidence than it is to sign in tangible narcotics confiscated at the time of arrest and sign them out again at the time of trial. That is because electronic discovery (e-discovery) is a multi-stage process and custody is an issue at every one of those stages….
Please click on the link below to see the entire Report: