Lawyers and the digital revolution
In the last five years, the focus of attention for the operation of the law firm (as in many other areas of practice and business) has shifted from paper documents to the electronic screen. We now demand that our documents be digitized and stored on magnetic or optical media, whether in place of or in addition to the paper documents.
Deposition transcripts used to be strictly paper documents. After the word processor revolution, the product would start out in electronic form, typed by the court reporter or her transcriptionist, but it would then be printed and would serve out its entire life in paper format. (In the typewriter days, of course, all legal documents were always paper at all times.) Reproduction would be accomplished by photocopy, often spanning multiple generations, with the quality and legibility fading with each iteration.
Our rules of evidence were developed during this phase of legal practice, and in many states we have the equivalent of Federal Rule 1003, a modification of the codification of the common-law best evidence rule, which modification was in recognition of the realities of business and its reliance on the science of photocopying.
"Rule 1003. Admissibility of Duplicates
"A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."
What happens when a deposition is admissible or useable at trial? The deposition may be admitted because the witness who previously testified in the current case is not available. It may be used to impeach an expert witness because he testified in 1993 that the standard stair step has a tread of 13 inches and a riser of five inches, but now says that a tread of 11 inches and a riser of six inches is standard.
If a lawyer in 1990 pulled out a copy of an old deposition transcript and used it to begin his cross-examination of the flexible witness, he would generally be permitted to use it for that purpose as soon as he got the witness to acknowledge that he did in fact testify in the previous case, despite the fact that the copy he used may have been a 15th generation photocopy. In general, business and the courts have tended to place automatic reliance on the authenticity of photocopies. They can be changed, of course; the transcript from which he seeks to cross-examine may have had the word "now" changed to "not" between the 7th and 8th generations, but most courts have not strictly enforced authentication requirements, and most attorneys have not challenged the issue.
Now we live in a world where the transcript comes on a disk, in addition to the paper product, and it can exist in text format, in Word or WordPerfect format, or in any number of proprietary formats. Instead of being stored in a filing cabinet for years, it will be archived in an attorney's office on a hard disk or other media. Most importantly, the electronic text is ridiculously easy to manipulate. Not only can one letter be changed in a word; entire sentences and entire paragraphs may be added, deleted, or changed at will. An entire paragraph from a medical textbook could be added to a witness's answer and no one would be the wiser unless, of course, someone were to secure a copy of the original transcript and do a close comparison with the version now to be used.
How do we deal with these new issues? The courts have done nothing to address these questions, despite the fact that we have been immersed in electronic media now for at least five years. The courts have paid a little attention to securing the integrity of the opinions that they post on publicly-accessible web sites, although there is still no consensus on how this is best accomplished. But to date there is no new rule or new procedure which addresses the question of how to ensure that a transcript which is printed from an electronic copy by an attorney is the same text that was originally typed by the transcriptionist.
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