Can your e-records be authenticated if need be during litigation?
The discovery that Hwang Woo-suk falsified research data shocked the science world and disgraced his native South Korea. It is alleged that he forged DNA tests to support his claim that he cloned stem cells. How could this happen?
Well…easily. To some degree, this sort of thing probably happens all the time. At least some of the records he falsified were images. These days, images are typically stored in an electronic format. Moreover, most documents are stored electronically as well; invention disclosures, lab notebook records and clinical trial data just to name a few. More and more evidentiary material is kept electronically and less and less is kept on paper. And you know what that means. Easy to alter. Easy to fraudulently alter.
The rate of incidents regarding falsification of research data, financial data, and all kinds of other records seems to be growing. Or maybe it’s just the discovery of the fraud that is growing. But whichever it is, the press around these incidents is ramping up the concerns we all have about the authenticity of electronic records. Lawyers, juries, and courts are all becoming savvier to this opportunity for fraud. Documents submitted as evidence are being more aggressively cross examined as to their authenticity.
In almost any scenario where an electronic record is needed as proof at trial, if counsel asks the question, "Could you have altered the record to support your case," the answer would typically be, "Yes." It’s not that you did alter the records, but you could have. And juries (whose verdicts are often based upon emotion) love conspiracies. So do judges. We all do. Even if the judge allows the electronic record into trial, a good cross examination about what a witness could have done to alter the record can stir up the jury enough to all but reject the electronic evidence in their deliberations… especially if they believe there is a conspiracy underfoot.
If they believe that the critical disclosure was concocted after the fact to build a defense. If they believe that they witness had motive and opportunity to falsify the critical piece of evidence needed to stave off a multi-million dollar verdict against his or her employer. Especially since they only had to change one date. Not even the whole date, just the year. The difference between a disclosure dated 2003 versus one dated 2004 could be the difference between an adverse verdict worth millions and an outright dismissal of the case.
The good news is…being able to prove, unequivocally, that evidentiary records have not been altered can be inexpensive and can require almost no end-user behavioral change. Rather than building in yet another document management system, IP.com’s legal safeguarding agent can turn your current document management system into a veritable authentication insurance system. E-records are kept safely onsite (as you have always kept them), and notarization records are kept with a third party. It’s fast, easy, cost effective, and secure.
Will your electronic records help you or hurt if needed during an adversarial proceeding?
