How to Provide E-Evidence in Small Claims Court - dummies

How to Provide E-Evidence in Small Claims Court

By Judge Philip Straniere

Proving your case in the Internet age has created problems for litigants and the courts system, including small claims. Often judges who are not computer savvy have trouble understanding the technical aspects of electronic transactions. This puts a burden on you as a litigant to be able to explain to the judge how the contract was made and how your electronic evidence was produced.

All states now permit the use of electronic, or e-evidence. However, before the e-evidence can be used in court, you may have to prove you complied with your state’s statute for the gathering, storage, and retrieval of electronic documents.

You may also need someone to certify that there was a security system in place to prevent the doctoring or removal of evidence. In some cases, you need an expert to verify the reliability of the process.

E-records are subject to being subpoenaed, just like any other documentary evidence. But there always is the problem of establishing the completeness and authenticity of the e-records. This can become an expensive proposition.

As always, if you’re in small claims court, substantial justice is the standard and a failure to comply with strict evidentiary rules are generally relaxed. Some of this information may be in your state’s evidence code. Other states may set out the procedure in a technology law or some other statute devoted to electronic transactions.

At a judicial training seminar a few years ago, a digital expert from the FBI made a presentation on the use of something as common now as digital photographs. He showed how someone could take a picture of an intersection and add or remove a stop sign. Or take a photo of a sidewalk on a summer day and have the sidewalk covered with ice and snow.

To the naked eye, you couldn’t tell the photograph had been doctored. In a serious case, if this were an issue, you would need a pixel expert to point out the alterations. This is why compliance with the state electronic security law has to be established to insure the authenticity of any electronically made records.

Two major statutes are applied to Internet transactions:

  • The Uniform Electronic Transactions Act (UETA), which is an attempt to have each state adopt as a state law the same laws to govern electronic transactions. It has been adopted in almost all states in some form.

  • The Electronic Signatures in Global and National Commerce Act (E-Sign Act). This federal law applies in all states, but will defer to the state law if the state has adopted UETA.