Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.
• Position: Civil procedure topics - Bibliography

Law Review Highlights:

As technology has become increasingly interwoven into the fabric of daily life, digital information has made its way inexorably into the legal system. Courts are continuing to wrestle with some of the unique challenges digital evidence presents as rules of evidence are applied to electronic information. Currently, many courts apply the Federal Rules of Evidence to computer-generated evidence in much the same way they apply the rules to any other form of evidence, but some courts have recognized that while current rules of evidence are sufficient to use with particular types of digital information, there are instances where the nuances that distinguish different records produced by computers warrant a new look. Additionally, the ease with which digital information can be deleted or altered--or even reconstructed--presents courts with challenges in anticipating and preventing spoliation of electronic evidence. Three articles examine electronic evidence and the ways in which courts are responding to the proliferation of digital information in the process of litigation.

Computer-generated, electronic, and digital evidence face three primary hurdles for admissibility under the Federal Rules of Evidence. Leah Voigt Romano, in her Note, Electronic Evidence and the Federal Rules, (1) identifies those barriers as the authentication requirement, the hearsay rule, and finally, the best evidence rule. For each impediment, the article examines the current language of the rules and how the courts have applied those rules to electronic evidence in examining admissibility. Most courts have quite successfully applied the rules of evidence in determining admissibility of electronic evidence by approaching digital information in much the same manner as paper evidence. The author concludes, however, that there will soon come a time when the rules of evidence will need to be amended to deal with the unique challenges raised in the admissibility of electronic evidence.

While the similarities between paper and electronic information can be helpful as courts apply the rules of evidence, the parallels between the two types of evidence are not exact. In his Note, "Electronic Fingerprints": Doing away with the Conception of Computer-Generated Records As Hearsay, (2) Adam Wolfson argues that all records found on a computer cannot accurately be described as business records under the hearsay exceptions. He makes a distinction between computer-stored and computer-generated records. A computer-stored document--like a spreadsheet or an office memo--corresponds fairly clearly to its paper counterpart. However, a computer-generated record--such as an IP log that tracks computer addresses that have logged onto a system--does not. Such a document does not fit into the definition of hearsay, and it does not hold any of the dangers normally associated with hearsay. The article proposes a test that judges could use to distinguish between the two types of computer records.

The mutability of digital information is one of the characteristics that make it unique when dealing with it as evidence. Rena Durrant discusses the illegitimate destruction of electronic evidence in her Note, Spoliation of Discoverable Electronic Evidence. (3) The use of electronic evidence has been beneficial to litigators on some level due to the fact that it can be stored almost indefinitely in a small amount of space. At the same time, however, producing that same electronic information can place a significant burden on parties in a law suit because of the many different ways and places it can be stored. Electronic information is also problematic because it can be tampered with so easily; even information that has been legitimately "destroyed" can often be recovered from computer hard drives. The author concludes that, although courts have been dealing with many of the issues that arise with the destruction of digital information on an ad hoc basis, some proposed changes to the Federal Rules of Civil Procedure will give courts and attorneys a framework that would provide a more unified approach to the collection and preservation of electronic evidence.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Mary Beth Balhoff, Comment, Corbello v. Iowa Production and the Implications of Restoration Damages in Louisiana: Drilling Holes in Deep Pockets for Thirty-Three Million Dollars, 65 LA. L. REV. 271 (2004).

Jim Gash, Solving the Multiple Punishments Problem: A Call for a National Punitive Damages Registry, 99 NW. U. L. REV. 1613 (2005).

Eric Howe, Benefiting the Bankruptcy System Through Deterrence: Allowing a Chapter 7 Trustee to Recover Punitive Damages for a Violation of the Automatic Stay Under [section] 362(h), 90 IOWA L. REV. 1939 (2005).

Keith N. Hylton & Thomas J. Miceli, Should Tort Damages Be Multiplied?, 21 J. L. ECON. & ORG. 388 (2005).

Allan Kanner & Tibor Nagy, Measuring Loss of Use Damages in Natural Resource Damage Actions, 30 COLUM. J. ENVTL L. 417 (2005).

Carly N. Kelly & Michelle M. Mello, Are Medical Malpractice Damage Caps Constitutional? 33 J.L. MED. & ETHICS 515...