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Electronic Discovery (E-Discovery) in Honduran Civil Judicial Proceedings
[/vc_column_text][us_separator][vc_column_text]Electronic discovery (“E-Discovery”) is related, among other things, to the formal request made by one of the parties involved to the other, during the evidentiary phase of a judicial process, both for documentation and electronically stored information (or by its name in English: Electronically Stored Information “ESI”). For the purposes of this article, we will focus on civil judicial proceedings. In the Republic of Honduras, this request action is protected by Article 281 of the Civil Procedure Code in compliance with the duty of production between the parties. The same legal precept establishes that each party involved in a judicial process may request from the others the production of evidence that is not at their disposal as long as it refers to the purpose of the process or the effectiveness of the evidence. In general, “ESI” includes: emails; internet browsing history; online transactions; Text message processing documents, electronically stored photos and videos, as well as recorded messages. The data may come from a computer, voicemail system, email system, smartphone, or any other electronic device. Global technological and electronic advances have facilitated not only communication between people in different parts of the world, as well as international and cross-border trade issues; they have also revolutionized evidentiary mechanisms within civil judicial proceedings. It was only more than a decade ago, when the new Honduran Civil Procedure Code was published, that new means of evidence were implemented in the country's judicial proceedings. The new Code of Civil Procedure of 2007, approved by the National Congress of the Republic through Decree Number 211-2006, entered into force twenty-four months after its publication, that is, on May 26, 2009, thus repealing the Code of Civil Procedure of Honduras of February 8, 1906. The current Code of Civil Procedure, within its "Second Book" (including articles 291 and 292), makes special mention of the means of recording and archiving evidence of texts, sounds, and images; and includes as new means of evidence the instruments used for the reproduction of words, sounds, and images, and the instruments used to archive, recognize, or reproduce words, data, figures, and mathematical operations carried out for accounting or other purposes, relevant to the judicial process. The parties may propose and request, as evidence, the reproduction before the court of words, images, and sounds captured by filming, recording, and other similar instruments. To this proposal, the parties may attach a written transcription of the words contained on the medium in question that are relevant to the case, as well as any opinions and documentary evidence they deem appropriate. The parties may also submit to the proceedings and request that instruments that allow data, figures, and mathematical operations to be archived, known, or reproduced, provided they are relevant to the proceedings and were carried out for accounting or other purposes. The presentation of evidence requires that, at trial, the contents of the floppy disk, computer hard drive, CD, or DVD, where applicable, among other items, be directly examined. The judge will evaluate reproductions of words, sounds, and images obtained through filming, recording, and other means, as well as instruments that allow the archiving, knowledge, or reproduction of data relevant to the proceedings, in a free and reasoned manner, adhering to the rules of sound judgment. For example, one of the "e-discovery" means that can be presented or requested from the opposing party is the "electronic document," written in electronic format and incorporating electronically signed data. The electronic document will support:i.Public documents, as they are electronically signed by officials who are legally empowered to give public, judicial, notarial or administrative faith, provided that they act within the scope of their powers with the requirements demanded by law in each case;ii.documents issued and signed electronically by public officials or employees in the exercise of their public functions, in accordance with their specific legislation;iii.Private documents electronically signed by the parties involved. The documents will have the legal value and effectiveness corresponding to their respective nature, in accordance with the applicable legislation. The medium on which the electronically signed data is stored will be admissible as documentary evidence in court. It is undeniable that there have been many changes and advances in the 21st century; today, many judicial proceedings, especially civil trials, involve some form of electronic discovery or "e-discovery" to uncover the truth of the issues in dispute. In many cases, e-discovery can reduce trial costs and also makes important information easily shareable among the parties involved, including the court itself. As mentioned above, to request discovery, or "e-discovery," one of the parties must request the information from the opposing party, in accordance with the applicable rules of civil procedure. This means that e-discovery, like other types of discovery, must be truly relevant and significant to the party requesting discovery and to the conduct of the trial. The request must specify with reasonable detail the matters sought for discovery. Electronic evidence must be admissible by the judge in a judicial proceeding; it is also necessary to establish a direct relationship between the evidence and the subject matter of the proceeding. All of this is to avoid a "witch hunt" when the requesting party broadly requests all electronic information from the opposing party in the hope of finding something useful for the case, when in reality there is no reasonable basis for the discovery request. In the United States, federal courts, and many state courts, allow trial attorneys andjurisInquiries, place a litigation hold on certain electronic information for its best preservation. The volume of information, which can be quite extensive, makes it difficult to identify the appropriate information to comply with the discovery request and separate privileged information from discovery materials, always ensuring the protection of shared data. Furthermore, the cost factor must be considered when seeking to obtain electronic information for discovery, as the cost can be high, and the work associated with preparing the information for discovery can also be cumbersome and expensive. For this reason, the parties, by mutual agreement and in a timely manner, must agree on who will bear the costs of said discovery. In the US, the Federal Rules of Civil Procedure require attorneys to meet and develop a discovery plan shortly after litigation has begun, with the intention of early detection of issues related to e-discovery and to maximize its benefits for both parties, for the court, and, above all, for the benefit of theJUSTICE. If you have any additional questions or concerns regarding e-discovery, electronic data protection, digital signatures, and other related topics, please contact us. Lexincorp Central American Law Firm is a law firmfull servicesexpert and leader in cutting-edge legal issues such as those discussed in this article. For comprehensive advice on the topic, please contact her at the following email address:dgranada@lexincorp.com.*Legal Notice: The general information contained in this document is provided for informational purposes only and should not be construed as legal advice on any of the topics discussed. You should not act or refrain from acting based on any content contained herein without seeking legal or other professional advice. We disclaim any liability for any actions you take or refrain from taking based on any content in this article.[/vc_column_text][us_separator][vc_column_text] Written by:Abg., LLM., Diego E. Granada Elvir[/vc_column_text][/vc_column][/vc_row]
