Electronic Evidence in civil and commercial processes

By: Feridee Alabi, Litigation

The term “evidence” designates different aspects of the evidentiary phenomenon, so its meaning will depend on the context in which it is used; it may refer to an activity, a means and/or a result.
If we speak from the point of view of “activity”, proving implies all the activities carried out by the parties to introduce means of proof in the process, complying with the regulations established in the law, which will lead the judge to build the basis for his decision. about the disputed facts.

When we talk about evidence as a “means”, it identifies what serves or can serve to confirm or falsify an assertion related to a fact in the case. Specifically, we refer to the “means of proof” to emphasize that evidence is everything that serves to prove, that is, all the elements that can be used to discover a fact.

Finally, when the context refers to the “result,” the term proof is synonymous with the demonstration achieved: proof is given when the facts are verified or confirmed based on the available cognitive elements.

On the other hand, it is also important to identify the difference between source and means of proof: Doctrinally it is established that: “The source is an extra-legal, meta-legal or legal concept, which corresponds to a reality prior to and foreign to the process, while the means "Proof is a legal concept and, more specifically, a procedural concept."

Our Civil and Commercial Procedure Code-CPCM- in Art. 312 confers on the parties the right to prove: “The parties have the right to prove, under equal conditions, the statements that they have made known about the controversial facts that are the basis of the claim or the opposition to it; for the judge to take into account, in the sentence or decision, the evidence produced; and to use the means that this code provides, as well as those that, given the nature of the debate, make it possible to verify the alleged facts.”

From the above it is understood that the Right to Prove is not unlimited and that it allows the parties to take any evidence that occurs to them. On the contrary, it is a right limited by the relevance and usefulness of the means of proof that are intended to be used.

In this article we will refer to electronic evidence as a means of proof.

Concept and types of Electronic Evidence
In general terms, Electronic Evidence is all information with probative value that is included in an electronic medium or is transmitted by said medium.

“…that electronic evidence would be, on the one hand, the information obtained from an electronic device or digital medium that serves to acquire conviction of the certainty of a fact; and, on the other hand, that medium that archives data in electronic format according to specific computer formats –PC, hard drive, Tablet, Smartphone, etc.–. That is to say, in that second sense, it is that electronic medium that allows proving relevant facts for the process, whether physical or even electronic, and that is made up of two elements necessary for its existence, which determine the specialty of the electronic evidence with relation to the rest of the evidentiary elements: a technical or hardware element, and a logical or software element. The electronic evidence is thus presented through an electronic medium, which will include informative content prepared through a specific computer program.”, Bueno de Mata.

In our CPCM, electronic evidence is regulated in Section Six of the fourth chapter: Evidence. This section is called: “Means of sound, voice or image reproduction and information storage.”
Electronic evidence is closely related to information and communication technologies and due to its constant and rapid advance, it is not possible to make an exhaustive list of evidence of this type since there is a risk that it will quickly become outdated; However, based on their technological characteristics, they can be grouped as follows:

• 1st group: All that information that does not contain a physical format or that originally comes from computing as something intangible, but can be transferred to a physical format. As examples we can mention: the most common, emails; Also included are computer files, cookies, computer history tracking sites, websites, comments posted in chats, forums or social networks such as Facebook, Instagram or Twitter.

• 2nd group: Electronic Evidence that comes from reproduction media or electronic files, videos or digital photography. For example, files, photos or video from digital cameras, camcorders or smartphones.

• 3rd group: Electronic Evidence that is presented using computer hardware and that has its own, purely electronic nature. Here we would find instruments such as a CPU, an external hard drive, a pendrive or USB memory, or any device installable through a USB connection or other similar port.
It should be clarified that these instruments are really supports and should not be confused with the test itself, which would be the data that is inside; but there are specific cases in which they will be valid as evidence in itself.

• 4th group: Mixed Tests, which are traditional tests when they come into contact with new information technologies, which would mean modified tests. Here we can mention the computer expert test, which is the test intended to examine and evaluate the evidence contained in the previous groups and which requires trained professionals; Statements by parties or interrogations of witnesses carried out through videoconferencing systems, among others, may also be included.

Advantages and disadvantages of electronic testing
In this regard, the doctrine states the following:

Advantages:
a) This type of tests offer objective, clear, precise, complete and neutral information as long as said material has not been subject to manipulation or alteration.
b) Ease of obtaining and preserving, as well as ease of use, conservation, storage and handling, which will imply savings in conservation costs and space, unlike physical evidence.
c) Reduction in process costs, for example in the printing of folios.

Disadvantages:
d) Insufficient legal regulation, which often leads to automatic devaluation by the judge.
e) In most cases there is a need to resort to expert evidence, due to the technical complexity involved in material related to technology and which a judge does not possess.
f) Difficulties in recognizing the authors of unsigned documents of electronic evidence as a way of attributing the commission of their content, since many services allow anonymity.
g) Ease of manipulation of electronic evidence, which leads to legal uncertainty.
h) Lack of technical means in courts and tribunals that do not allow or hinder the practice of this type of evidence.

Admissibility requirements
Like any means of evidence, Electronic Evidence must comply with the following aspects required in the CPCM:

A. Relevance (Art. 318 CPCM)
The electronic evidence must be related to the object of the evidence or the fact to be proven. The objects of the evidence are the following: 1. Controversial facts; 2. Custom when it is not accepted by the parties; and 3. Foreign Law in its validity and content.

B. Utility (Art. 319 CPCM)
Electronic evidence must be useful to prove the facts related to the required claim, that is, it must be suitable and not be superfluous to verify the disputed facts.

C. Legality
Electronic evidence must be obtained and incorporated into the process in accordance with the principles and standards provided by law. Here we must differentiate the aspect of legality, which means that evidence must be obtained and carried out with respect for fundamental rights. In this case, legality is not a parameter of admissibility, but rather it will be a mechanism for excluding evidence that has already been admitted for violating fundamental rights at the time it was obtained.

Pending the next installment where we will address what is related to the “Electronic Document”.