Discovery is defined as 'compulsory disclosure, at a party's request, of information that relates to the litigation'.2 This pretrial stage consists of requests for admission of certain facts, performance of interrogatories, requests for production of documents and depositions, among other things. Although this institute as defined is not applicable in Argentina yet, since the admissibility of evidence is discussed once the judicial process has started, and not at a previous stage as may occur in countries such as the United States, we can find certain tools that allow the production or collection of evidence prior to the formal commencement of a litigation.
One of the ways to obtain evidence prior to the commencement of proceedings is through preliminary investigations, which provide the opportunity to obtain information needed for a claim or response, without which the process could not take place. These measures are available for both potential plaintiffs and defendants.
Another device designed by legislation for the collection or production of preliminary evidence is the legal figure of anticipated proof, which will only be admitted in cases where it is proved that there are justified reasons to believe that it will be impossible or very difficult to produce said evidence during a litigation.3
Finally, parties may make use of interim measures4 both before or after a claim is filed to protect a party's assets, rights or proof when there is a reasonable doubt about the possibility of said means of proof being available and undamaged when the production of the rest of the evidence shall take place. They are usually granted without the prior involvement and participation of the counterparty.
The above measures are available for various means of evidence, including electronically stored information (ESI). ESI can be described as information created, manipulated, communicated, stored, and best utilised in digital form, requiring the use of computer hardware and software.5 Considering the vulnerability and the possibility of alteration and elimination of ESI, these measures have proven to be extremely useful for its preservation.
II Year in review
Argentina lacks a specific regime regarding ESI, and there has been little legislative activity in recent years regarding the treatment of ESI as evidence in court proceedings. By way of illustration, in 2017 a bill to reform the National Code of Criminal Procedure in relation to ESI as evidence in the judicial process was filed before the legislative authority. It developed, inter alia, the possibility of intercepting computer systems or any electronic data storage medium to obtain evidence for the verification of certain crimes (such as kidnapping), the obtaining of copies or the preservation of electronic data and, especially, a particular regulation regarding the chain of custody of such evidence. In addition, special treatment was given to the intervention of telephone communications and any other means of communication of an accused party, including ESI. In spite of the above, this project lost parliamentary status because it was not dealt with and approved on schedule,6 and there have been no subsequent similar projects, which shows that the Argentine legislative agenda is not focused on this matter.
However, the courts have dealt with this issue several times – and will do so more and more as technology keeps evolving and innovating – generating, in consequence, robust case law. Thus, much has been discussed in the judicial field regarding the possibility of lawyers having access to electronic means of information during investigations in order to use them as evidence.
In this regard, it is important to mention that not all jurisdictions give the same treatment to ESI. Moreover, the differences in some of the rulings have been substantial.
By way of example, we mention a ruling of 25 March 2019 decided by the National Criminal and Correctional Appeals Chamber, 1st Chamber.7 In the case, the Criminal Court turned to the treatment of emails sent and received by a company employee, which had been used by the employer as evidence against the employee in a trial in which non-competition duty violations by the employee were under discussion. In this regard, the evidence obtained through the emails collected from the employee's mailbox was declared invalid.
The Court stated that electronic mail has privacy protection characteristics that are more accentuated than traditional postal mail, since its operation requires a service provider, a user name and an access code or password, which prevents the intrusion of third parties accessing the computer data of others without the authorisation of the owner of a mailbox. Consequently, an intrusion into electronic communications of any kind implies a breach of the private sphere, violating individual guarantees of a person (as contemplated by the National Constitution) either as a derivation from the right to property or as an autonomous right to privacy.8
Thus, the applicable standard for the admissibility of personal emails in the criminal field is high and demanding, giving special importance to constitutional guarantees such as the protection of individual privacy.
However, this criterion is not shared by other jurisdictions. In fact, even a labour court in Argentina has ruled in the opposite direction. As an example, in a 2018 ruling, the Sixth Labour Chamber of the province of Mendoza9 admitted in the judicial process the use of emails from an employee's mailbox as evidence. In this regard, the Court made it clear that the fact that the employer had access to the work mailboxes of its employees and reviewed this information for strictly work purposes could not mean a loss of privacy for the workers, especially since in this case there had been prior knowledge of a certain conduct of the worker in question that was reprehensible. According to the courts, in cases like the one under discussion there is a justified need to verify the illegitimate actions of workers or their failure to comply with their duties by means such as checking emails sent by employees from their own work mailboxes.10
This decision is useful for illustrating the great flexibility that is taking place with regard to the admissibility of ESI as a means of evidence in the labour courts, and especially if it is taken into account that the labour justice system in Argentina has a clear tendency to be, in general, pro-worker.
III CONTROL AND PRESERVATION
i Admissibility and evidential value of ESI
There are no specific rules regarding control in the context of ESI, therefore general procedural rules apply. These rules state that a court must order a party in possession of evidence to produce it within a specific time.11 If the party does not produce the evidence and does not provide a sound reason and, based on other elements of judgement, the existence of the evidence and its content are manifestly credible, there will be a presumption of guilt. The concealment of evidence can be considered proof that the evidence exists. In certain cases, the non-disclosure can be justified, for example, because of attorney–client privilege (see Section V).
Adverse inferences are the only sanctions that the law applies to parties that do not produce – or preserve – evidence under their control, when required to do so. Parties are not subject to a duty (failure of which would be penalised) or an obligation (compliance with which could be coercively demanded by the other party), but they are constrained by a procedural burden of good faith and collaboration in the production of evidence, which governs the entire litigation process and, specifically, the preservation and production of evidence that could be under the parties' control. If this procedural burden is breached, it could mean that the party in question is deemed to have evidence that is harmful to its case.12
Preservation of ESI is a complex subject. Although Argentine legislation does not have any specific rule determining the length of time that ESI must be kept, the Argentine Civil and Commercial Code (CCC)13 stipulates that, in general, documents should be preserved for 10 years. Therefore, it is reasonable to assume that ESI should also be preserved for 10 years. Preservation not only implies not destroying records, but also maintaining them so that they do not suffer deterioration owing to the passage of time or exposure to any harmful elements, allowing them to be consulted or made available if required. With regard to ESI, it will be necessary to guarantee its authenticity, so that the origin of the information is certain.14
Although Argentine regulations, especially the CCC, are concerned with regulating the admissibility and evidential value of each type of evidence admitted by law, there has been much discussion regarding the validity of ESI as a means of evidence and the value that should be given to it.
In a case in 2017, the Third Civil, Commercial, Mining and Tax Chamber of the province of Mendoza15 ruled in favour of the admissibility of ESI when it admitted the validity of a chain of emails and various messages sent by the popular platform WhatsApp to prove the intervention of a real estate agent in a transaction regarding the sale of a property. This judicial decision implements a rule of utmost importance from an evidentiary aspect in the judicial field: the admissibility of exchanges of emails and WhatsApp messages as evidence of the existence of a contractual relationship.
In this regard, Article 318 of the CCC, which came into force in 2015, expressly provides for correspondence as a means of proof, understanding as such both epistolary correspondence – which was already regulated in the previous Civil Code – and correspondence resulting from an exchange of emails or electronic messages through instant messaging applications.16
However, ESI lacking elements such as an electronic signature (regulated by Law No. 25,506) prevents this type of evidence from being granted the highest evidential value. This has been stated on various occasions, on the understanding that while records of instant electronic messages, emails and other ESI are admissible in court for evidential purposes, these means of evidence constitute documents that, lacking a digital signature, cannot be equated with a private instrument in terms of their evidential value.17
Article 287 of the CCC is concerned with distinguishing the different types of documents that can be brought into the process, and this distinction helps to evaluate the probative value of different means of evidence. This rule distinguishes between public and private instruments as follows:
- a public instrument is one authorised with the solemnities required by law by a competent public official, a condition that makes it the element of evidence with the greatest probative value; and
- private instruments are subdivided into two types depending on the presence or absence of a signature:
- private instruments that have a signature (handwritten or digital); and
- particular unsigned instruments that do not have any kind of signature to prove the authorship of those instruments.
The latter category includes all documents that are written but not signed and records of speech and information produced in any medium.18
As developed by Article 287, the opinion under most case law is reflected in the regulations, as the evidentiary validity of ESI is considered to be comparable to that of letters missive and, more broadly, to that of any particular unsigned instrument. This implies that ESI (referring to information contained in electronic media in general, leaving out any electronic documentation that has a digital signature) is seen as an indication or principle of written evidence, with it being necessary to verify its authenticity through complementary means of evidence (such as computer or technological expert evidence). In this regard, such documentary evidence must be complemented with computer expert evidence on the corresponding server, testimonies that can attest to these posts, or evidence of reports given to the service provider so that he or she can send information to the judicial courts about a conversation held on electronic platforms.19
To establish a standard of evidential value for ESI, courts analyse three main aspects: authenticity, integrity and legality. The first is defined as correspondence between the apparent author and the actual author of a document.20 Integrity refers to the verification of the existence or non-existence of modifications made after an instrument was issued. Legality is related to the way in which evidence was obtained.21
In general, and in line with the provisions of Article 318 of the CCC, doctrine states that the evidentiary effectiveness of ESI with regard to, for example, unsigned emails, is rather poor mainly because authenticity, integrity and authorship cannot be guaranteed.22 Therefore, while the rule of admissibility of ESI as evidence is now widely accepted, it is not appropriate to give full effect to a digital document that has these shortcomings.
Iv REQUESTS AND SCOPE
Even though the parties to a lawsuit are not obliged to meet in the context of disclosure of ESI that may be useful for a lawsuit (nor are there lists drawn up to obtain the information), there are certain rules that parties should abide by regarding requests for and the scope of the production of evidence. These rules would apply to ESI.
The first rule is the duty to offer evidence on time. In every lawsuit, the parties must file the documentary evidence on which their case is based. The law explicitly establishes that the documentation the parties possess must be submitted by them when filing a complaint or upon answering a complaint, as applicable. This duty forbids the parties from submitting documentation at other times, unless it refers to documentation that has come to their attention later in the process.
The second rule is the duty to present the documents that are essential for the resolution of a dispute. Article 387 of the CCC provides that 'The parties and third parties who have essential documents for the resolution of the dispute shall be obliged to present them or to indicate the notarial record or file where the original documents are kept'.
The third rule relates to the burden of proof, construed as the legal principle that determines who is obliged to prove a certain fact before the court. The general principle23 is that the burden of proof shall be borne by the party affirming the existence of a controversial fact or of a legal provision that the court does not have a duty to know (excluding, therefore, the applicable law). Each party must prove the facts on which it is grounding its claim, defence or motion. Because of this duty (as provided by civil procedure), the powers of the court to order evidence on its own initiative are exceptional and incidental. However, when establishing the applicable principles for civil liability, Article 1735 of the CCC provides that 'the judge may distribute the burden of proof or, having acted with due diligence, may consider which party is in a better position to provide it'.24 Article 1735 includes the principle of the dynamic burden of proof.
V REVIEW AND PRODUCTION
Communications between a lawyer and his or her clients are protected by attorney–client privilege, which is found in different laws, procedural codes and the Constitution. Attorney–client privilege is very strict and provides lawyers with many tools to avoid being forced to produce evidence in their power delivered to them by their clients, subject to the fact that they were acting as their attorneys.
The work-product doctrine does not exist in Argentina. However, we believe that a lawyer's work product is protected by attorney–client privilege. If a lawyer is requested to produce his or her work product in a trial, the same protection granted for communications must apply as the work product originated from the information provided by the client.
As mentioned in Section III, the court determines the time frame within which parties must produce their evidence. According to the National Procedural Code, the time frame should not exceed 40 working days. In practice, however, it lasts much longer, as the courts extend it as long as is necessary to have all the proposed evidence duly produced.
As stated in Section IV, only evidence that is directly related and essential to a case can be offered in trial. If evidence is protected under contractual or legal confidentiality, or if the type of evidence brought is not admitted by the law or cannot be admitted for procedural reasons, then a party can challenge the production of it. Additionally, a party may argue that the evidence produced is against public policy or morals, and request that it be considered confidential and only made available to the involved parties.
There is also another discussion related to confidentiality when dealing with ESI. In this regard, it is important to note that Article 318 of the CCC stipulates that 'confidential correspondence cannot be used without the consent of the sender'.25
The Confidentiality Law26 states that individuals and legal entities may prevent information that is legitimately under their control from being disclosed to third parties, or acquired or used by third parties in a manner contrary to honest commercial practices, provided that the information is confidential, in the sense that it is not generally known or easily accessible to persons in that field of work, has commercial value because it is confidential, and the person who controls it has taken reasonable measures to keep it confidential. ESI is specifically considered when the Law details how confidential information can be stored.
In this regard, some argue that the rule of confidentiality should not apply in this case, since they consider that the facts that are proven during a trial may or may not be confidential but that this is not a relevant aspect, since it is understood that in a dispute between parties 'there are no secrets',27 consequently relieving the party offering the means of proof from the burden of having the approval of the sender for incorporation as evidence in court.28
This position is supported by the above-mentioned Llopart decision when it states that, because conversations and messages conducted by electronic means were sent between the conflicting parties, it cannot be sustained that they are of a confidential nature and, consequently, they can be used in court.29
However, the opposite position holds that Article 318 is clear when it states that the fact that electronic correspondence is not confidential is a strict rule that must be respected in order to be able to enter this evidence in court without the express consent of the other party. This rule is supported by the principle of confidentiality of correspondence, in accordance with the requirements of Article 18 of the Constitution, which declares its inviolability. According to those who follow this position, the CCC should have the right to privacy enshrined in its text in order to give meaning and proper protection to the constitutional guarantee of the inviolability of correspondence.
Vi privacy issues
Handling of personal data always requires the consent of the data owner. One of the exceptions set forth in the Data Protection Law is when the personal data is collected for the exercise of functions proper to the powers of the state or by virtue of a legal obligation. When the handling of personal data is required under one of the three methods of obtaining pretrial evidence (see Section I), the court will exercise its judicial power to request it. The consent of the data owner is not required in these cases.
Although this information may, in principle, be contained in media of any kind, including the electronic media to which we have previously referred, the enforcement authority of the Personal Data Protection Law32 has said that information contained in electronic media such as emails is not a subject covered by Law No. 25,326, since this is a matter that encompasses privacy and the inviolability of correspondence, both of which are constitutional guarantees. Therefore, the subject matter of information contained in emails or mailboxes is outside the scope of the Data Protection Law, and should be discussed by other authorities and according to different rules.
In this regard, an opinion issued in 2010 by the National Directorate of Data Protection (DNPDP)33 established that, although prima facie email addresses constitute personal data, a difference must be established between emails as personal data and their content, which is not covered by this provision. Consequently, on the understanding that all electronic communications are regulated by the Criminal Code and the CCC, as they fall into the category of private correspondence, the intervention of the competence of the DNPDP is excluded, admitting that the Data Protection Law does not regulate the information contained, for example, in emails.
Therefore, although in the development of the discussion regarding the Llopart ruling the issue of the confidentiality and privacy of the information contained in emails and other ESI is addressed, this matter is outside the scope of the DNPDP's treatment because, as these means are defined as epistolary correspondence, the discussion that surrounds them is one of a constitutional nature (inviolability of correspondence) and not an issue of personal data protection.
VIi OUTLOOK AND CONCLUSIONS
In recent years, as a result of technological advances and the displacement that technology has implied for the remaining physical means of evidence (such as epistolary correspondence), the Argentine justice system has had to modernise, and has been responsible not only for interpreting the rules within its reach in such a way that they are applicable to ESI, but also for creating and establishing standards and rules of jurisprudence for the purpose of carrying out judicial work in a comprehensive and responsible manner. In spite of this, the limited existing regulations have generated (and continue to generate, in some cases) uncertainty regarding the treatment that should be given to the validity and evidential effectiveness of ESI.
Although there have been modest attempts to regularise this situation, consolidating the regulation on ESI in a normative body, the legislative power has focused on the discussion and sanctioning of other regulations, leaving this issue unaddressed for the time being.
Despite the legal vacuum regarding specific regulations on ESI, as has been seen so far in Argentina, it is likely that the justice system will continue to deal with this issue and formalise rules and jurisprudential standards as it has done to date, mainly in terms of understanding that technology is advancing in leaps and bounds, and more and more conflicts are arising between parties that feature some electronic means that may be used as evidence.
1 Adrián Furman and Martín Torres Girotti are partners and Carolina Maddalena is an associate at Bomchil.
2 Black's Law Dictionary (Seventh Edition), p. 478.
3 Article 326, National Procedural Code.
4 Article 195 et seq., National Procedural Code.
5 Definition provided by the U.S. Government for the purpose of the Federal Rules of Civil Procedure.
6 In Argentina, when a project begins to be treated by the legislature, the Chambers have a period of two years to treat, approve and promulgate the law. Otherwise, the project loses parliamentary status and is left without effect.
7 National Criminal and Correctional Appeals Chamber, 1st Chamber – C, J A y otro s/ Nulidad.
9 Sixth Labour Chamber of the province of Mendoza – Estornell, Juan Bautista c Andeluna Cellars SRL s/ despido.
11 Article 387 et seq., National Procedural Code.
12 Código Procesal Civil y Comercial de la Nación: Comentado y Anotado, Kielmanovich, Jorge L.
13 Article 328, Civil and Commercial Code.
14 Comments on Article 328, Civil and Commercial Code. Marisa Herrera, Gustavo Caramelo and Sebastián Picasso.
15 Third Civil, Commercial, Mining and Tax Chamber of the province of Mendoza – Llopart, Ricardo José c/Lombardich, Luis y otro s/cobro de pesos, 1 June 2017.
16 id, footnote 11.
17 National Commercial Chamber, Chamber D – Bunker Diseños SA c IBM Argentina SA, 2 March 2010.
18 Lorenzetti, Ricardo (Director) – Código Civil y Comercial de la Nación, comment on Article 287.
19 Tomeo, Fernando – Redes Sociales y Tecnologías 2.0, Astrea, Buenos Aires, p. 25.
20 Bielli, Gastón E, 'Los mensajes de WhatsApp y su acreditación en el proceso civil', LA LEY 29 October 2018, 1210, p. 4.
21 id, footnote 16, p. 5.
22 Molina Quiroga, Eduardo – 'Documentos y comunicaciones electrónicas: su eficacia probatoria a la luz del Código Civil y Comercial', SJA 31 May 2017, 31/05/2017, 36, p. 3.
23 Article 377, National Procedural Code.
24 Article 1735.
25 National Civil and Commercial Code, Article 318.
26 Law 24,766.
27 Bueres, Alberto J (Director), Código Civil y Comercial de la Nación, Ed Hammurabi, t I, p. 271.
28 id, footnote 17.
29 id, footnote 11.
30 Law 25,326.
31 Article 2.
32 This authority is the National Directorate of Data Protection (DNPDP).
33 DNPDP – Opinion No. 025/10.