Data, or it didn't happen.
Expectations concerning digital evidence are changing. Will civil litigators be ready?
Norfolk County Superior Court, in Dedham, Massachusetts, was built before electric lights, municipal police, and women’s suffrage. The central part of the building was nearly a hundred years old when Nicola Sacco and Bartolomeo Vanzetti were tried, convicted, and sentenced there, in 1921.
A century later, the main courtroom is still referred to as “Sacco and Vanzetti.” And it’s where Judge Diane Freniere has been presiding over the trial of Brian Walshe, who is alleged to have killed his wife, Ana.
Mr. Walshe has already pled guilty to disposing of her body, which he dismembered using materials purchased at a building-supply store, following instructions he found on the internet.
Mr. Walshe’s search history, the contents of his cell phone, a laptop, and his children’s iPads, as well as messages between his wife and her lover, were introduced into evidence by the Commonwealth.
The jury retired with hundreds of pages of materials, including searches conducted in the hours between the time Ana was last seen and when the defendant reported her missing:
4:52 a.m. ET: Best way to dispose of a body
4:55 a.m. ET: How long before a body starts to smell
9:33 a.m. ET: How long does DNA last
9:35 a.m. ET: Can identification be made on partial human remains
9:59 a.m. ET: How to dispose of a cell phone
10:29 a.m. ET: My wife is missing what should I do
11:30 a.m. ET: “Patrick Kearney”
11:50 a.m. ET: Can I use bleach to clean my wood floors from blood stains.
This is the third high-profile criminal trial in Massachusetts to turn on digital evidence like this.
Judges are starting to understand it. Juries are starting to expect it.
I’m not a criminal lawyer, though.
We all walk around, creating data. Compulsively. Carrying a few dozen gigabytes in a six-ounce GPS-enabled distraction machine in our front pocket, during the quick dash down the stairs to see if the doorbell really rang.
Surely. This stuff must be just as relevant in civil litigation as it is in criminal trials. And discovery is reciprocal and broader.
How are we engaging with this new world, this relentlessly documented world, on the civil side of things?
Honestly, not so well.
We beg our clients — occasionally, by text — not to do business by text. Email. Call. Maybe, consider, a fax. For the love of god, don’t text.
But they do. And they will continue.
Email is falling out of regular use. Texting is easier. Quicker. Less formal. More immediate, and in diverse fields — construction, for example — it can facilitate direct communication across language barriers.
Digital evidence is being created.
It’s occasionally, even — in a manner of speaking — being produced in discovery, and introduced at trial.
The particular manner in which it is currently most often produced is laughable. I know, because when I told Justin, he laughed. He might still be laughing.
The way that text messages are most often produced in civil litigation is via screenshot, pasted into a Word document, converted to .pdf. Why PDF? So it can be Bates-stamped, of course. Otherwise, how could you ever authenticate and refer to it?
And how are these screenshots obtained? Typically, via this highly technical process:
Attorney: I need all text messages you have concerning this project.
Client: I already sent you what I have.
Attorney: Yes, but, we need to be sure that you don’t have any. Would you please search again?
Client: Okay. Yeah, I don’t have any. It was Joe, anyway, that was really in charge, and he doesn’t work here anymore.
Attorney: Could you ask him, though.
[two weeks later]
Attorney: Did you ask Joe about text messages?
Client: Yeah, I asked him. He said his phone number changed. Or his phone, maybe. He doesn’t have any.
Very ambitious attorneys might send off a document subpoena, to be scrupulously and promptly ignored by a phone company.
And, for most of the time I’ve been practicing, this has been good enough.
But the tide is turning. Fast.
Motions to compel are being granted more frequently. Sanctions are being granted when there is no plausible explanation for why nothing was found.
A federal judge recently entered a default judgment in a civil case, because of inadequate responses to requests for discovery of text messages.
We are not yet in a place where the defense bar sends, as a reflex, a request to preserve a plaintiff’s cell phone and location data, upon notification of a claim. But it’s coming.
No insurer has yet tested whether the obligation to produce documents, as part of an examination under oath, can include consenting to the extraction of search and text message history. I don’t think it’s far away.
We are, however, in a place where civil attorneys are starting to ask:
“If I did need all this employee’s texts…is there a way?”
“He said he searched, but, I’m not sure what he means by ‘searched.’”
“The video shows three other people recording…but they say they didn’t. Is there any way to know for sure?”
Brian Walshe’s attorney, in closing, argued that his client’s search history was actually exculpatory when viewed in the right light.
Yes, his client searched for how to get rid of a body. How to clean up blood. How to dispose of a cell phone. Researched a notorious serial killer, notable for disposing of his victims in garbage bags.
But did he search for “how to murder wife?”
Anything violent? Anything suggestive of intent, or premeditation?
Novel, as an argument. Appealing, in its own way. Chilling, in its implications.
If there’s no data, it didn’t happen.