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Notaries in the Digital Era

By Matthew A.S. Esworthy

Litigators and their clients are all too familiar with the high costs of discovery in cases involving electronically stored information (“ESI”): the exorbitant expense of outside vendors and the overwhelming time commitment required of attorneys and staff working to ensure that they do not overlook critical information.

However, not all of the technology that has emerged from the e-discovery revolution is cost prohibitive. One inexpensive tool available to attorneys is the digital notary. A digital notary attests to the authenticity of a digital item as it is reflected at a particular date and time. In simple terms, digital notaries “seal” a digital item with specialized software in order to preserve the integrity of the item and digitally date and time-stamp the item.

Digital notaries perform a wide variety of services, including the authentication of the data on computer hard-drives; e-mails; website ESI; internet postings; digital photographs; and text messages or instant messages. The uses of digital notaries are only limited by the creativity of the attorney involved.

One may ask, how can I use this in my practice? Consider this example:

A recording artist is sued by his former business partner. The lawsuit alleges that the artist used his influence to force several music-downloading websites to stop selling the album that his ex-partner had just released. When the album was taken off these websites the artist’s ex-partner allegedly lost a revenue stream worth hundreds of thousands of dollars. However, a quick on-line search reveals that the album is still circulating on the very websites the ex-partner references in his lawsuit.

Does the ex-partner realize this? Does his lawyer? What if the ex-partner directs the websites to remove the album after being put on notice that the album is still available, in order to keep the lawsuit alive? How does the artist quickly preserve this crucial information?

This is a perfect scenario for a digital notary. The digital notary would be able to certify that the album is still for sale on-line. The digital notary would also be able to purchase copies of the album through certified on-line transactions from the websites in question, and certify that the album received is indeed what it purports to be.

Certainly when counsel for ex-partner sees the digital notary’s detailed report authenticating the album’s on-line availability – including the actual digital items in native and pdf. format in order to prove that the album has never been removed from the websites and that its listings have not been altered in any way – the case would quickly resolve.

Without the authentication provided by the digital notary, any number of questions can be raised about the album’s availability, the duration of its availability and if it was ever removed from the websites for any length of time. But thanks to the notary’s report, the case would be dismissed before it ever really began. All told, the digital notary’s cost would be less than $1,500, but would save the artist tens of thousands of dollars of discovery costs, expert witness expenses, and legal fees.

Moreover, if cooler heads do not prevail and the case moves forward, the digital notary’s report would play a central role in disposing of the lawsuit by supporting a motion for summary judgment. The digital notary would have provided an affidavit in support of its findings, authenticating all of the relevant ESI, as required under Fed.R.Evid. 901, or live testimony if the case moved forward to trial.

One needs to look no further than Chief Magistrate Judge Paul W. Grimm’s decision in Lorraine v. Markel American Ins Co., 241 F.R.D. 534, 541-544 (D. Md. 2007) to appreciate the absolute need for an affidavit to authenticate ESI in motions practice, as Judge Grimm denied cross-motions for summary judgment as a result of the parties failure to properly authenticate ESI. See also United States District Court for the District of Maryland’s “Suggested Protocol for Discovery of Electronically Stored Information (ESI)”, available here. (The Court’s Protocol recommends the use of a digital notary for the production of native electronic files.)

When it comes to dynamic and fluid information in digital form, bad actors can manipulate timestamps and content with ease. Establishing authenticity and admissibility poses a challenge that only grows more onerous with the constant evolution of new methods of hacking into and altering files. Any witness providing testimony to authenticate ESI can be cross-examined to reveal potential flaws in digital images or data one takes for granted. In the context of litigation, every electronic document’s authenticity can be called into question.

Digital notarization offers a brilliant counter attack. An independent, third-party expert uses cutting-edge, proven technology to capture the digital item as it is reflected at certain date and time, preserving the authenticity of the item during the pendency of litigation. The digital notary then issues a detailed report to support the digital item’s authenticity and how it was verified.

This is not to say that digital notaries can resolve every discovery problem, or that the use of such venders will be relevant in every instance. Electronic discovery will continue to be time consuming and expensive – and often unavoidable. Expert and lay witnesses will still be brought to the stand to dispute the authenticity of electronic documents. Nevertheless, the digital notary remains a valuable tool that can reduce the burden on litigants in this ESI era.

About the author: Matthew A.S. Esworthy is a trial lawyer and a partner at Shapiro Sher Guinot & Sandler, a Baltimore law firm. He can be reached at mase@shapirosher.com.

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