Trimming the Edges, Tearing the Core: Electronic Evidence and Definitional Tensions in Arjun Panditrao and the BSA

This article argues that while the definition of secondary electronic evidence in Arjun Panditrao addresses the ephemeral nature of electronic evidence to some degree, it does not account for the inherently dynamic nature of an “original” document on the source computer. Additionally, it argues that while the added explanations to the BSA address this dynamism, Explanation 5 (which classifies documents produced ‘from proper custody’ as primary documents) renders §63 toothless. It argues that in the absence of sufficient procedural safeguards for official identification, retrieval and analysis of electronic records, such electronic records cannot be assumed to be akin to primary records. Thus, production of the §63 certificate should be made mandatory even in this case.