Investigation reveals that most of the documents are prepared, executed, notarized and recorded without human hands.
Electronic Discovery is a fairly new practice area in trial law. I recommend that attorneys in particular pay careful attention to new developments in E-discovery. Although you can ask for a print outs or copies of documents that are held, this will only produce a hard copy of something that was automatically prepared by machines.
In the context of foreclosures, this is the ideal context in which to involve plausible deniability for “mistakes,” “errors,” or fraud. Since no human being did it, civil and criminal responsibility for filing foreclosure papers on a nonexistent claim will most likely fail, unless supported by a compelling docket of evidence.
So I am coming to the conclusion that it would be wise to conduct discovery on the source code and meta-data that was used in the production, execution, notarization and recording of documents. That needs to be combined with inquiries into the source of authorization for the algorithms that were employed. I’m pretty sure that judges are convinced that the documents have been executed by human hands, authorized by human beings. When they find out that this is not the case, they might be more open to challenges.
3 thoughts on “Should we be paying more attention to E-Discovery?”
https://www.emitchelandassociates.com/_files/ugd/69094d_1a9cf5dc5525428b996148589ee8fe2d.pdf
Nice document but unfortunately this does not help in court. Our defenses that succeed in both Quiet Title cases, counterclaims and wrongful foreclosure cases, utilize some of these concepts but go far beyond in presenting evidence to Judges that they are willing to accept. (and when they don’t we have to appeal as we have done so often. Winning on appeal normally sends the case back to the lower court and the judge knows he can no longer ignore the presented evidence) When you work with litigants across the country like we do, you quickly realize what works and what does not. Concepts do not persuade, relevant evidence as part of a well drafted argument does.
Good point Neil. Also, if I remember correctly, when the UETA was passed in 1998 I believe, when I read it, it was stated that consumers must agree beforehand if their documents were to be prepared or sent electronically. Or similar. I remember clearly thinking at the time, that I didn’t agree to any such thing, unless it was buried in fine print somewhere.