This is a very common difficulty for all colleagues in the Courts. We all regularly use these means to communicate with each other and exchange information, but the real challenge is to use it as hard evidence in trials. The Law has to adapt constantly to the social reality, but in this particular case and with the dizzying speed with which new technologies develop on a daily basis, it is generally stagnant on these matters.
Although it seems elusive when adding it to a judicial file, technology provides us with the necessary elements to prove facts or acts. This virtual reality does not generally present problems (nobody cares at what time we meet at the cinema or how many friends we have on the social media), until it becomes legally relevant information. Clients are constantly creating evidence without even knowing, and this can be a great advantage or a detriment for an attorney, depending on whether this attorney had the opportunity to advise the client in advance about what means to use and what means not to use for each type of communication.
Currently in Argentina, we are far behind on these matters; for instance, digital signature is yet not used, which could speed up international commercial life tremendously. Another important advance would be that judicial notices sent by e-mail work correctly, but there are technical problems. A major initiative to facilitate the work of attorneys of the City and the Province of Buenos Aires is web access to files. However, they are not exempt from problems. For example, sometimes digital versions are different from the files. Moreover, there are some places in which the system did not work for more than 2 years.
In Procedural Law, the concept of “document” is much broader than what is generally believed and it includes any element capable of reflecting an expression of will, thoughts, facts, etc., alleged in a particular case. The concept of “documentary evidence” includes several formats, such as images, recordings, videos, drawings, emails, bar codes, CDs, faxes, etc. It is important to note that in cases of proof of documents which are on the Internet or in PCs, what has to be proved is not the printed version of the document, but the file stored in the computer’s memory (its publication is an exact replica saved in a storage unit, which may be a server or disc).
The main problem is that once something is published (especially through these means), it is never erased again. This has been the case for a long time; a clear historical example is the publication of photographs of Balbín hospitalized. Sheltering behind freedom of expression, a group of photographers ventured into the Intensive Care Unit and published the photos with articles about Balbín in a weak physical state, affecting his public image in history in an irreversible way. As compensations are based on the assessment of damage to the plaintiffs made by the judges and not on the economic profits produced by the analyzed facts and acts, many times this leaves the victims with a sensation of insufficiency with regard to the established amounts. In the case of Balbín, the Supreme Court took into account only the moral damage to the relatives and fixed a compensation that would amount to US$ 100,000 today. Had the Court taken into account the personal damage for being a politically exposed person and the economic benefits of the publisher, the amount would probably have been much higher.
Returning to what should be proved in these cases (which is not the printed document, but the original content), it is important to know how the evidence should be generated. In any case, it should be done after consultation with an attorney who is expert in those areas, but the standard procedure is to transit the path with a notary, print the pages and certify them, and keep a record with all the information in a notarial certificate.
When the evidence is added to a file, the counterparty always has the opportunity to acknowledge or not acknowledge it. In all cases in which the parties agree that the contents included in the evidence and the exchanges or publications existed, there are no major problems, but this is rarely the case as the evidence always affects one of the parties. In every claim or defense, the parties must submit copies of the evidence offered. In these cases, it is understood that it is difficult and cumbersome to do so. There is an exception to the rule in Section 121 of the National Code of Civil and Commercial Procedure which allows the parties to be exempted from this obligation due to extraordinary difficulties:
“COPIES OF DOCUMENTS WHICH ARE DIFFICULT TO REPRODUCE
Section 121 – It is not obligatory to submit a copy of the documents which are difficult to reproduce due to its number, extension or any other reason worthy of consideration, subject to the judge’s decision, upon request as set out in the same writing. In this case, the judge shall take the necessary measures so that the other party or parties have no problems arising from the lack of copies.”
While there are no guarantees that the judges will make this exception, as their criterion comes first, we recommend all colleagues to consult us about these matters and, in any case, to attach the copies when the judge requires it.
There is an extra difficulty with respect to whatever is posted on the Internet. As we have already noted, what should be proved is not the printed document, but the content stored in the server disk (which can be anywhere in the world). The additional problem is that any content stored in the servers can be modified. This implies that any evidence intended to be produced must be done before informing anyone who has sufficient access to the content to modify or delete it.
Now, how do you prove this content? DVD is a good format, but if it is “burned” in our homes without an expert, it can be altered later. To include irrefutable evidence, the content has to be downloaded with a technician and a notary (to verify the whole act) to a DVD. Then, the disc has to be closed following security measures so it cannot be modified, put in a closed envelope with the signature of the interested party and the notary and attach it to the file. In this case, it is impossible to attach copies because there is no assurance that the copy will be 100% reliable (the counterparty cannot know if its defense is about the evidence included in the file). For the production of this evidence, the attorney submitting it must request a hearing for the opening of the envelope and the reading of the content in the presence of the parties.
Nevertheless, as we always reiterate, this newsletter is addressed to a general public and provided for informational purposes only. All these topics need to be examined case by case with a notary, since these procedures may not be compatible with your court strategy.
In the next edition, we will discuss specifically every means of evidence and the advantages and disadvantages of its use.
Our Law Firm was founded in 1981 by Sergio Héctor Nunes. Since then, the best efforts were made to create a Comprehensive Law Firm, capable of resolving any conflict our clients might have. In addition to this objective, it has specialized in business legal assistance, whether it is in the commercial, civil, labor, or administrative areas.