Electronic Evidence in Malaysia: Admissibility and Discovery

Set against the backdrop of a fictional murder, this book presents the law and procedure on electronic evidence and E-Discovery in a uniquely refreshing style. Each chapter takes up a thread from the story, as it delves into the study of the authenticity and discovery of potential digital evidence captured from various electronic sources.

The first part of the book deals exhaustively with how to authenticate evidence obtained from diverse electronic sources to be presented as evidence at trial. The second part discusses the right to obtain discovery of such evidence in its electronic format and the attendant issues and challenges in the process.

The current Malaysian statutory provisions and a wealth of case law from Malaysia, Singapore, England and the USA are analysed to give the reader a better perspective and understanding of this fast-growing and complex area of the law of evidence. The book concludes with a peek into the future and the new lawyering skills that it entails. It is a must-have companion for judges, judicial officers and litigators.

Key Features

• Explanation of the basics of information technology, authenticity and admissibility of electronic evidence and the nascent concept of electronic discovery (E-Discovery) from multifarious potential sources.
• Specific chapters providing guidance on sourcing and authenticating particular forms of electronically stored information (ESI) for admissibility, ranging from emails, text messages, social media, digital audio, image and video recordings especially in the age of Deep Fakes, IoT and AI.
• Consideration of the presumption of reliability of machines and software programes and the case of R v Seema Misra
• Analysis of section 90A of the Evidence Act 1950 in relation to authentication of electronic evidence with numerous case examples.
• General principles of “Discovery” under Order 24 Rules of Court 2012, its application to E-Discovery and the attendant challenges within the ambit of the Rules.
• The ethical implications and consequences of failure to preserve data.
• Use of computer forensics in E-Discovery cases.
• Discussion on when and how to establish an appropriate legal hold to preserve evidence.
• Guidance on the importance of retention and preservation of ESI.
• Latest cases on “Persons Unknown” Proprietary Orders.
• A wealth of cases from Malaysia, Singapore, England and the USA providing guidance on complex issues related to authentication and the nascent area of E-Discovery.
• Proposed guidelines for E-Discovery.