Strategies for Combatting the Proliferation of Fake Evidence

The increasing sophistication of digital manipulation and AI-generated content has brought a new challenge to eDiscovery and legal professionals: fake evidence. From deepfakes and shallow fakes to fabricated emails, text messages, and forged contracts, the need to verify authenticity has never been greater. As courts and legal teams grapple with these issues and judges pay closer attention to the authenticity of digital evidence, eDiscovery professionals must be proactive in identifying, challenging, and mitigating the impact of fake evidence to avoid judicial scrutiny and potential sanctions.

Understanding the Types of Fake Evidence

Legal professionals must first understand the different categories of manipulated evidence:

• Deepfakes: Completely synthetic content generated by AI, including fake videos, images, and even text-based records.
• Shallow fakes: Modifications to authentic evidence, such as altered dates or added paragraphs in emails or PDFs.
• Liar’s dividend: The tendency for parties to claim real evidence is fake, exploiting the fear of manipulation.
• Synthetic vs. Fabricated Evidence: Not all AI-generated content is intended to deceive, but when used to falsify legal documents, it crosses into fabrication.

Why Fake Evidence Is on the Rise

Historically, creating convincing fake evidence required significant effort, requiring literacy, tools, and time. Today, this "filter of effort" has collapsed. AI and digital tools have dramatically reduced the barrier to entry, allowing even non-experts to generate highly realistic forgeries. The ability to manipulate emails, contracts, and multimedia content is no longer confined to sophisticated actors; it is now accessible through common software and apps.

Furthermore, digital evidence is inherently easy to manipulate. The transition of documents from one format to another can obscure metadata, making detection of alterations more difficult. Additionally, online tools and generative AI now allow for near-instant evidence fabrication, further complicating authentication.

Identifying Fake Evidence: A Three-Part Test

Given the rise of fake evidence, when legal professionals are attempting to uncover the possibility of fake evidence, a simple three-part test can serve as an initial check:

• Does the evidence seem too perfect or too good to be true? Unusually convenient evidence that aligns perfectly with a legal argument may warrant closer scrutiny—whether it be your own evidence or evidence received from another party.
• Is there an original source? A lack of native files, metadata, or corroborating records is another potential red flag.
• Is there a complicated backstory? Elaborate explanations for why original evidence is missing or unavailable is another tell for potential fabricated evidence.

Strategies for Verification and Authentication

Once suspicious evidence is identified, multiple verification methods can be employed, including the following:

• Secondary Source Comparison: Cross-referencing documents looking for alternative copies from other custodians or third parties can reveal inconsistencies.
• Metadata Analysis: Examining digital metadata, such as timestamps, authorship, and file history, can highlight alterations.
• Expert Review: Digital forensic specialists can identify anomalies in file structures, fonts, and other technical markers.
• Requesting Originals: If an email or document is provided only as a static PDF, requesting the original format may uncover discrepancies.

Ethical and Legal Considerations

Lawyers have an ethical obligation to ensure the authenticity of evidence they present. Under ABA Model Rule 3.3, lawyers must act if they know evidence is false, but action is discretionary if they only suspect fabrication. However, the Federal Rules of Civil Procedure may impose stricter obligations. Rule 11 requires lawyers to certify the accuracy of their filings, making due diligence non-negotiable.

Additionally, courts are increasingly recognizing the risks posed by fake evidence. Judges are focused on authentication protocols and proof of origin, and failing to detect fraudulent evidence can result in severe legal and reputational consequences. Judicial training programs and emerging case law are emphasizing the need for proof of origin and authentication protocols. Legal teams must anticipate heightened scrutiny of digital evidence and prepare accordingly.

Practical Steps to Minimize the Risk of Fake Evidence

To proactively guard against fraudulent evidence, eDiscovery professionals should perform the following:

• Incorporate robust ESI protocols: Early agreements on metadata preservation and production formats can prevent manipulation. Establishing these protocols ensures that all parties adhere to the same standards, making it more difficult to introduce manipulated data—or if manipulated data is presented, there are methods in place to test the data. Defining expectations for production format, including the process for requesting native production, metadata inclusion, and handling of electronic documents, can serve as a deterrent against falsified evidence.
• Standardize authentication procedures: Implementing consistent forensic examination techniques, including verifying metadata integrity, cross-referencing digital records, and checking for anomalies, is essential in identifying fabricated materials. Ensuring uniform standards across cases provides a structured approach to uncovering inconsistencies.
• Educate teams on emerging threats: Given the increasing sophistication of fraudulent digital content, ongoing training is crucial. Legal professionals should be aware of evolving tactics used to create and introduce fake evidence. Training sessions, case studies, and workshops can help teams develop a critical eye for potential manipulation.
• Use technological tools: AI-powered forensic tools can assist in identifying alterations and inconsistencies in digital evidence. Automated detection tools can analyze document history, highlight suspicious edits, and verify metadata, providing an additional layer of scrutiny. Leveraging machine-learning-based anomaly detection systems can streamline the process of authenticating key evidence.
• Conduct early case assessments: Engaging in early informal investigations into key pieces of evidence, such as by requesting additional sources, performing preliminary metadata checks, and corroborating claims with independent records, can help flag potential fake evidence before significant legal action is taken.

Conclusion

The increasing prevalence of fake evidence poses significant challenges in eDiscovery, but legal professionals have tools and strategies at their disposal to detect and mitigate its impact. By developing a structured approach to verification, leveraging forensic expertise, and implementing proactive discovery strategies, law firms and in-house counsel can mitigate the risks associated with manipulated evidence.

Courts are also highly attuned to this issue, with judges increasingly focused on authentication protocols and proof of origin to prevent fraudulent evidence from influencing proceedings. Given the increasing judicial scrutiny, legal professionals must be prepared to identify and challenge fraudulent evidence before it undermines their case. Bottom line: be aware of anything unusual, verify rigorously, and demand proof of origin to uphold the integrity of legal proceedings.

Daniel Regard of iDiscovery Solutions co-authored this piece.