Northwestern Journal of technology and Intellectual Property

Legally Correct But Technologically Off the Mark

Fall 2010

By Daniel B. Garrie & Bill Spenrow

Today’s judges face numerous challenges in determining the truth of the matter at hand, but none is more challenging than ruling on issues that pivot on digital evidence. Gone are the days when the most technically challenging decision was determining if evidence on a floppy disk had been destroyed because a litigant exposed it to a strong magnetic field.  Today’s legal challenges are extremely technical when it comes to determining the integrity of digital evidence and assigning responsibility for direct or indirect acts of spoliation. While judges are entirely capable of arriving at the correct decision when it comes to ruling on the value of digital evidence, they are at the mercy of the “experts” involved when it comes to issues of spoliation.

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