Practitioners should not be afraid to use the electronic format of evidence in their cases.  Electronic evidence is often more convenient and effective than its tangible counterpart.  At the same time, however, counsel  should be mindful that the rules governing the filing and admission of traditional evidence applies equally to electronic evidence.  Failure to appreciate this may result in unintended consequences and quite possibly waiver, as a case from the Middle District of Alabama makes clear.

In King v. Anderson, No. 2:12-CV-190-WKW, 2014 WL 2993563 (M.D. Ala. July 2, 2014), the plaintiff relied on two pieces of electronic evidence contained on a flash drive—a video of the incident at issue and x-rays of his damages—in defending against summary judgment.  The plaintiff, however, never formally filed the electronic evidence with the clerk’s office.  Instead, his counsel hand-delivered a courtesy copy of the opposition brief to one of the judge’s law clerks, and told the clerk that he included a flash drive containing the electronic exhibits in the binder.  The court never got the message or noticed the flash drive, and ultimately entered summary judgment in favor of the defendants.

Once the oversight was discovered, the plaintiff moved to vacate or for reconsideration, which required him to show clear error or manifest injustice.  In denying the motion, the court noted that the court could only consider the official record as maintained by the clerk’s office, and that the plaintiff “should have furnished the electronic exhibits to the Clerk’s Office.”

Preservation Issue:

• Electronic evidence, like all other evidence, needs to be in the record to be considered.

Tips:

Because not every clerk’s office has the same procedures, practitioners should first consult with local filing rules.  In most jurisdictions, one way to make sure electronic evidence is in the record is to conventionally file the drive or disc containing the materials along with a notice of conventional filing.  Another option is to embed the audio or video clip into a PDF file of the brief, so that it can be filed and accessed electronically. Some courts welcome hyperlinked briefs, but others do not, so find out in advance.

Something else to consider in making electronic evidence readily-accessible is the ease with which the court can view the electronic evidence.  While embedding electronic evidence into a PDF makes it incredibly easy for the court to access the material, a conventional filing does not offer the same convenience.  The bottom line is that electronic evidence needs to get in the court’s hands in some manner.