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  • There is rarely a civil case in which an email, text, Facebook entry or webpage snapshot doesn’t feature, yet electronic evidence is often tendered without objection, and therefore the exact evidentiary basis on which it is being adduced and admitted into evidence is not explicitly considered.
  • The use of electronically stored information (ESI) is wide-ranging in criminal and civil disputes, and is most prevalent in family, employment and IP disputes.
  • This article explores admissibility issues and tips to overcome objections by focusing on the Evidence Act 1995 (NSW) and the way it regulates electronic evidence by adapting the existing concepts that apply to ‘documents’.
  • The second article in this two-part series will deal with specific emerging issues in the use of ESI.

Electronically stored information (ESI) is increasingly ubiquitous in civil and criminal litigation. This article – the first in a two-part series – explores admissibility issues and provides tips to overcome objections. The second article will deal with emerging issues in the use of ESI.

Electronically stored information

The internet, social media and social networking sites give users access to a huge amount of electronically stored information (ESI) or electronic evidence. They also allow users to create and disseminate electronic evidence more easily than ever before. Electronic evidence is usefully defined as ‘data (comprising the output of analogue devices or data in digital format) that is manipulated, stored or communicated by any man-made device, computer or computer system or transmitted over a communication system, that has the potential to make the factual account of either party more probable or less probable than it would be without the evidence‘ (see Mason Stephen (ed), Electronic Evidence(LexisNexis Butterworths, 2010) (Mason)).

That information varies greatly in its reliability and accuracy (see Strauss v Police [2013] SASC 3 per Justice Peek at [12]). Some forms of electronic evidence are fairly static (e.g. texts/emails), and some are changeable/changing (e.g. Facebook pages/websites).

One of the features of ESI is that it is easily corrupted or changed. This gives rise to particular issues as to how it should be accessed, stored and preserved. Keeping proper ‘chain of custody’ records is important. It also gives rise to new challenges from an evidentiary point of view in terms of authenticity and reliability.

ESI can contain many layers of digital information (metadata) that may or may not be accessible, depending on the form in which it is served.

Metadata has been defined as ‘information generated as you use technology … [such as] the date and time you called somebody or the location from which you last accessed your email. The data collected generally does not contain personal or content-specific details, but rather transactional information about the user, the device and activities taking place’ ( A Guardian guide to your metadata ).

If issues arise as to the authenticity of ESI, it is likely that expert assistance will be required.

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