Editorial: Volume 5
Two important issues have come to the fore over the past few months, both of which illustrate the importance that lawyers should attach to understanding digital evidence.
First, the damage that employees of an internal IT department can do to digital evidence in their ignorance cannot be over-estimated. This is illustrated in the case of Aston Investments Limited v OJSC Russian Aluminium (Rusal) [2006] EWHC 2545 (Comm). Aston alleged that the defendants hacked into their computer system in London in order to view confidential and privileged information in relation to litigation in which the parties are jointly engaged. A routine security scan of Aston's server revealed hidden spyware called 'Perfect Keylogger', installed at around 4 a.m. on 20 January 2006. The spyware was designed to make a log of everything typed on the computer, and take a snapshot of the computer screen and any information saved on file, which is then secretly transmitted to the person who installed it. An earlier version of the software was found on a computer operated by the receptionist and secretary, installed, depending on the dating system, either on 11 March or 3 November 2005. The domain user of the file was called 'Oroosinovich'. The spyware had been transmitting information to an internet address smtp.list.ru/194.67.23.115. An investigation established that a number of attempts had been made to gain access to the system from various IP addresses (one of which was an internet address registered to Rusal), several of which were successful. After taking this action, Ashton engaged a digital evidence specialist, who concluded that the actions of the members of the IT department had resulted in important files and information being removed, and a subsequent forensic examination of the original evidence was made very difficult because of changes made to the system. Indeed, the learned judge, Jonathan Hirst, QC, commented, at 43:
'As a result of the steps taken by Mr Sinani and Mr Makarov to prevent further unauthorised access, the alleged "crime scene" had been trampled over and any relevant foot prints were no longer discernible.'
The digital evidence specialist discovered that there were other attempts to communicate with the claimant's server from IP addresses registered to the defendant. This case illustrates the importance of digital evidence and also demonstrates that if digital evidence is not properly handled, its integrity can be damaged.
The second issue relates to the cost of disclosure or discovery of digital documents. The Institute for the Advancement of the American Legal System at the University of Denver issued a joint paper with the American College of Trial Lawyers Task Force in September 2008, entitled 'Interim Report & 2008 Litigation Survey'. This survey makes it clear that there is a problem relating to electronic discovery in the United States of America. Four major concerns were identified:
1. Deserving cases are not brought because the cost of pursuing them fails a rational cost benefit test, while cases with no merit, especially smaller cases, tend to be settled rather than being tried because it costs too much to litigate them.
2. Discovery costs far too much and has become an end in itself.
3. Judges fail to take active control of litigation from the beginning. Where abuses occur, judges are perceived to be less than effective in enforcing the rules.
4. Local Rules are routinely described as 'traps for the unwary' and many think they should either be abolished entirely or made uniform.
This survey attracted the attention of The Economist (Technology, business and the law section) in an article entitled 'The big data dump' on 28 August 2008. Clearly, procedural rules governing disclosure or discovery are predicated upon cultural norms, as much as the legal philosophy of the State; the way litigation is conducted in the USA reflects the underlying philosophy of those responsible for the procedural rules, both at a Federal and State level. It is suggested, in the article from The Economist, that this is a US problem, and the following text offers the explanation:
'This is overwhelmingly an American problem. In countries such as France and Germany that have an inquisitorial legal tradition, e-discovery tends to be proportionate to the case, because judges largely determine what information is relevant. By contrast, in adversarial common-law systems, it is the opponents in a case that decide how much information to peruse before picking out the evidence. But most countries within this tradition, such as Britain, Canada and Australia, have recently moved towards inquisitorial systems to minimise the threat from e-discovery.'
First, it is not an overwhelmingly American problem, although it can be said that the procedural rules of other States help to ameliorate the problems with digital evidence. The author of this article has failed to distinguish between criminal and civil proceedings, and puts all other States into the category of the 'inquisitorial legal tradition' as if such an alternative existed. Sweeping statements about inquisitorial legal traditions only serve to illustrate the want of understanding by the author. Second, litigants in civil proceedings in France and Germany control the evidence that goes before a judge. Perhaps litigants in many European States and the United States of America might prefer similar rules to that pertaining in England & Wales, where both sides have a duty to exchange a list of documents that are both in their favour and adverse to their case before trial. The aim of this requirement is to ensure the trial only considers the issues in dispute. Peripheral issues of no relevance are not admitted. However, it may be that the English way is not persuasive: perhaps lawyers and litigants might prefer the rule in Malta, that allows the parties to produce documents during the course of the trial for the first time.
It must also be pointed out that countries such as Britain, Canada and Australia, have not moved towards inquisitorial systems. The basis of the author's opinion will be of interest indeed.
In essence, the problems relating to the disclosure or discovery of digital evidence face all lawyers in all States across the globe. It can be argued that a litigant wishing to initiate proceedings in a State where lawyers are hardly aware of the need to consider digital evidence in civil proceedings face just as serious a problem as in a State where lawyers are at least aware of digital evidence, even though the volumes of data are enormous.
Finally, a short note about the revised title of the journal. Previously entitled the e-Signature Law Journal and then re-named the Digital Evidence Journal, I have attempted to encourage people to understand that topics relating to digital evidence cover a vast range of devices and process, but to no avail. The new title is deliberately descriptive - to provide an international widow into the world of digital evidence and electronic signatures on a global scale - because this affects every lawyer in every country. The success of the journal is predicated upon lawyers and scholars taking part in the wider dissemination of knowledge, so please consider getting in touch if you have something original to share.
Editorials copyright Stephen Mason, 2008
The Singapore Electronic Transactions Act and the Hong Kong Electronic Transactions Ordinance
Daniel Seng considers a preliminary review of the working of the Singapore Electronic Transactions Act and the Hong Kong Electronic Transactions Ordinance
Digital evidence in Brazil
Carlos Alberto Rohrmann and Jason Soares Albergaria Neto set out the position relating to the admission and treatment of digital evidence in Brazil
Comments on the Italian ‘Code for the digital administration’
Franco Ruggieri provides an in-depth discussion of the new Code for the digital administration, recently adopted in Italy
Irish Supreme Court extends the scope of electronic discovery: Dome Telecom v Eircom
TJ McIntyre outlines the importance of the first decision to reach the Irish Supreme Court in respect of the scope of electronic discovery
Electronic evidence in China
Dr Minyan Wang sets out electronic evidence in relation to civil proceedings in China, and how electronic evidence is recognized in theory and in practice
The use of electronic digital signatures in banking relationships in the Russian Federation
Olga I. Kudryavtseva provides an outline of banking relationships in the Russian Federation, and considered two cases relating to the misuse of electronic digital signatures
Suppression and the Internet: The ‘cyber memory’ case - a New Zealand response
Ursula Cheer comments on a non-binding decision in which Judge Harvey made a partial non-publication order permitting contemporaneous reporting in newspapers and on television and radio, put prohibiting accounts on the internet
E-disclosure viewed as ‘sensemaking’ with computers: The challenge of ‘frames’
Simon Attfield and Ann Blandford set out their recent research in respect of how lawyers search vast amounts of information during a disclosure exercise before trial
Introducing and working with electronic signatures in mass applications: Notaries and the German commercial register
Dr Dominik Gassen outlines the steps taken, problems dealt with, and outlines the advantages in making the German commercial register on-line
The E-Notarization Initiative, Pennsylvania, USA
Joan Decker outlines the pioneering work undertaken by her department in using technology for the purposes of the notary
The proposed international e-identity assurance standard for electronic notarization
Timothy S. Reiniger
The draft International Electronic Notarization Assurance Standard
Case Translations:
Belgium
AR n° 2002/71, Ghent Labour Court of Appeal (Bruges department, 7th chamber), 23 September 2003
Digital evidence. Employment contract. Variation of terms by e-mail. Validity.
CSWARE bvba v Pepijn Descamps, 2007/AR/462, Ghent Court of Appeal, Chamber 7bis, 10 March 2008, with a commentary by Patrick Van Eecke and Elisabeth Verbrugge
Digital evidence. Payment of invoices sent by e-mail. Challenge receipt of invoices. Authenticity of e-mails. Evidential value and force of e-mails.
China
Yang Chunning v Han Ying (2005) hai min chu zi NO.4670, Beijing Hai Dian District People’s Court, with a commentary by Chen Jihong
Electronic signature. Digital evidence. Loan agreed by exchange of text messages on mobile telephone. Validity of text messages. Validity of name typed in text message as electronic signature.
France95-14251 Société Descamps, Banque Scalbert Dupont, Commercial Chamber of the Cour de cassation (Cour de cassation chambre commerciale), Tuesday 2 December 1997
Trade debt sent by facsimile transmission. Admissibility.
Germany
Ur19 U 16/02, OLG Köln, 6 September 2002 (by Henriette Picot and Marlene Kast)
Digital evidence. Electronic signature. Internet auction. Burden of proof.
12 U 34/07, Court of Appeal Berlin (Kammergericht Berlin), 30 August 2007, with a commentary by Dr Martin Eßer
Qualified electronic signature. Private document. Validity of signature. Acceptance of electronic signature in legal proceedings.
GreeceCase No 803/2004, Council of State for Suspensions, 15 September 2004 (by Anastasia Fylla)
Digital evidence. Administrative appeal. Appeal sent by e-mail. Validity.
Mexico
Jurisprudencia 24/2008, Criteria Contradiction Proceedings (Contradicción de Tesis) 261/2007 SS between the Third Collegiate Court for Administrative Matters and the Second Civil Court for Civil Matters in the Seventh Circuit, Second Chamber of the Mexican Supreme Court, February 13, 2008, with a commentary by César Martínez Alemán
Digital evidence. Income tax declaration. Digital stamp. Validity.
Norway
LB-2006-27667, 20 August 2007, Borgarting appellate court – judgement, with a commentary by Professor Jon Bing
Digital evidence. Probate. Electronic will. Validity.
Case Notes:
Austria
OGH Urteil vom 29.6.2000, 2 Ob 133/99v, Oberster Gerichtshof (Austrian Supreme Court) (By Dr. Wolfgang Freund and Mag. Lothar Farthofer)
Electronic signature. Band card. ATM. Unauthorized withdrawals. Liability of bank.
Denmark
B-19-08 and B-52-08, Danish High Court (Østre Landsret), 5 September 2008 (By Jan Hvarre)
Digital evidence. Erroneous assumptions. Music downloads. IP address.
Lithuania
Ž.Š. v AB Lietuva taupomasis bankas, Civil Case No. 3K-3-390/2002, Civil Chamber of the Supreme Court of Lithuania (By Sergejs Trofimovs)
Electronic signature. PIN. Bank card. Liability of the bank. Burden of proof. The role of the PIN. Contractual limitation of liability.
The Netherlands
21 November 2007, LJN BC0337, Rechtbank (Lower Court) Amsterdam (By Dr. Simone van der Hof)
Digital evidence. Notice of default send by e-mail. Definition of ‘writing’. Validity of e-mail.
Poland
I KZP 29/06, Resolution of the Polish Supreme Court (By Dr Arkadiusz Lach)
Electronic signature. Procedural rules of court. Appeal sent by facsimile. Validity of signature.
Russian Federation
Resolution of the Federal Arbitration Court of Moscow Region of 5 November 2003 N КГ-А 40/8531-03-П (By Olga I. Kudryavtseva)
Digital signature. Transfer of funds using private key. Not authorized by customer. Liability of bank.
Singapore
Alliance Management SA v Pendleton Lane P and Another (The First Case: [2007] SGHC 133), (The Second Case: [2008] SGHC 76) (By Bryan Tan)
Discovery of digital documents. Content of hard disk. Meaning of ‘document’. Failure to provide hard disk. Sanctions.
Book reports
George Dimitrov, Liability of Certification Service Providers: How the Providers of Certification Services Related to Electronic Signatures Could Manage their Liabilities, (VDM Verlag, 2008)
Stephen Mason, general editor, International Electronic Evidence, (British Institute of International and Comparative Law, 2008)
Svein Yngvar Willassen, Methods for Enhancement of Timestamp Evidence in Digital Investigations, (Norwegian University of Science and Technology, Faculty of Information Technology, Mathematics and Electrical Engineering, 2008)
International Conference on Digital Evidence, The Vintners’ Hall, London 26 and 27 June 2008
Conference proceedings
Digital forensics in Malaysia
Aswami Fadillah Mohd Ariffin and Izwan Iskandar Ishak
Avoiding disputes regarding electronic evidence: a U.S. perspective
Judge Francis M. Allegra, United States Court of Federal Claims, Washington, D.C.
Toward a new jurisprudence of information retrieval: What constitutes a “reasonable” search for digital evidence when using keywords?
Jason R. Baron
An outline of the French law on digital evidence
Philippe Bazin
The Digital Tower of Babel
Ugo Bechini
Diving into magnetic stripe card skimming devices
Johnny Bengtsson
Models of investigation and processing of digital evidence
Zdeněk Blažek, PhD, CISM
eDiscovery implications, duties and consequences
Thomas M. Dunlap, Esq.
A brief overview of Malta, a roman-civil law country, with common law adoption as rules of civil evidence
Dr Patrick J Galea
Chinese digital evidence law overview and suggestions for multinational enterprises
Chen Jihong
Electronic evidence in Civil Procedure in Japan
Hironao Kaneko
Digital Evidence: An Indian Perspective
Tejas D. Karia
Search and seizure of digital evidence in criminal proceedings
Charles Leacock, Q.C., LL.M (Lond), Director of Public Prosecutions, Barbados
The digital economy - where is the evidence? Theoretical and practical problems in understanding digital evidence in Romania
Bogdan Manolea
The EU Data Protection Directive and major factors relied upon by U. S. courts in transborder discovery requests
Daniel W. Perry, Esq.
Civil search and seizure of digital evidence: the example of the Thai Central IP & IT Court
Jumpol Pinyosinwat, Presiding Judge, the Central Intellectual Property and International Trade Court, Thailand
Search and seizure of digital evidence: thresholds and minefields
Justice J. E. (Ted) Scanlan, Justice of the Supreme Court of Nova Scotia and Deputy Judge of the Nunavut Court of Justice
Caught in the middle: whether to seek help when the organization is the subject of information technology attack
Joseph J. Schwerha IV, M.S., J.D.