On November 1, 2007, I participated in a panel discussion of electronic evidence at the 51st Congress of the Union Internationale des Avocats in Paris with lawyers from Germany, Switzerland and India.

Both Germany and Switzerland only allow certain means of evidence. In Germany the accepted means of evidence are:

• Interrogation of witnesses

• Written report and interrogation of expert appointed by the court

• Interrogation of the parties

• Presentation of deeds

• Submission of objects for judicial inspection

Nowhere, according to the panelist, does electronic evidence fit in, and it is often excluded upon an objection from the adversary that it could have been altered.

Similarly, in Switzerland, the authorized means of evidence are limited to:

• Testimony

• Documents

• Inspection (viewing)

• Expert opinion

• (Provision of information in writing)

• Interrogation and testimony by the parties

Electronic evidence must be printed out on paper and then offered as a document in Switzerland. Both Germany and Switzerland have legislated certain types of electronic signatures as a means of authenticating electronic documents, but the lawyers from those countries indicated that the technology doesn’t exist to make this alternative useful.

India, on the other hand, amended its 1872 Evidence Act to facilitate the admissibility of electronic evidence, including emails, itemizing circumstantial guarantees of trustworthiness analogous to those that we look at in the U.S.