Electronic Documents--Don't Trust That Date

Dates can be crucial in litigation. Cases are won or lost on whether the right things happened at the right time. Accordingly, we often use documents to construct our chronologies early in the case and move for summary judgment. But dates on electronically stored documents may not always be what they seem. For example, at first glance, one may assume that a date on an electronically stored document is the creation date or distribution date. Maybe its far from either.

Many computer systems and programs automatically CHANGE DATES on documents when certain things happen. This means a date may not be what it seems. Perhaps the document was merely opened on that date. Maybe it was revised. Maybe that is the date that someone saved it in a new place.  Perhaps the date was intentionally changed (which is fairly easy to do, even with .pdf documents).  Sometimes a system will be programmed to add other potentially misleading language to a document. For example, sometimes a system will automatically change a header to say “last revised xx/xx/xxxx” even if it was just opened and nothing was done to the document.

This means that we need to be careful to remember to investigate the dates on our key documents—both those that are produced and those that we are producing. Ask IT personnel what the computer system or programs may have done to the dates on the documents. Ask the authors/recipients of the documents. Check additional meta data concerning the document. In short, do not trust the date.

Also, this means we need to be careful with admissions. Be careful not to willingly admit to dates simply because they are shown on a document. When preparing witnesses, be careful to caution them against doing the same.  (“Well, the document says that it was on May 25, 2004, so it must have been.”).  Make sure you discuss the electronic documents they may face and what may have happened to them in the computer system. 

Finally, these date changing phenomena can cause evidentiary burdens. We need to make sure that we take the necessary steps to properly authenticate electronic documents so that we may use them. See, Keep 'Smoking Gun' E-Mails From Backfiring
By H. Christopher Boehning and Daniel J. Toal.