Have you ever had the sense that a piece of evidence was off — too clean, too convenient, too perfectly timed — but couldn’t quite articulate why? That instinct, argues iDS CEO & Founder Dan Regard, is worth trusting. And more importantly, it is worth acting on.
In the ninth installment of the Regarding Evidence column in Today’s Managing Partner, Regard examines one of the most consequential challenges facing litigators today: falsified data — how it arises, how to detect it, and what the rules actually require when it appears.
Why Falsification Is Increasing
False evidence is not new. But its frequency — or at least the risk of it — has risen sharply with the proliferation of digital evidence and the accessibility of tools that make fabrication easier than ever. Regard frames the phenomenon through the Fraud Triangle, a concept from criminologist Donald Cressey: pressure, opportunity, and rationalisation. When low-cost editing tools and generative AI drop the cost of creating digital artifacts, the opportunity corner of that triangle expands considerably.
To illustrate just how dramatically, Regard poses a thought experiment to courts: imagine all evidence were made of wood, every person had a fully equipped woodworking shop at home, and a robotic carpenter capable of producing flawless replicas. How much falsified wooden evidence would you expect to see?
The answer, of course, is a lot. But here is the critical counterpoint — for trained investigators, those copies may look perfect. They never are.
The Myth of Easy Falsification
A dangerous misconception is that digital evidence is easy to fabricate without detection. While individual artifacts can be created or altered, modern digital evidence is rarely isolated. Emails exist simultaneously across sender and recipient devices, cloud repositories, audit logs, backup systems, and every reply and forward thread. That interconnectedness is not a weakness — it is frequently the path to the truth.
A Three-Step Detection Method
Regard’s practical framework for identifying falsified evidence is built around three stages: the gut check, the objective checklist, and the second opinion.
The gut check is the instinct that something is wrong — the feeling attorneys often dismiss. Regard’s advice is to lean into it, then progress to the second step: a four-question checklist that asks whether you have been presented with a single piece of perfect evidence, with no original, and a complicated story behind its existence. A pattern of “yes” answers is a meaningful signal.
The third step is a second opinion — a corroborating source, additional discovery, a deposition, or a forensic expert who can analyse the artifact in question. And one practical tip that stands out: if you want to know which exhibit is the most likely candidate for falsification, the other side will usually tell you. It is the evidence they rely on most heavily.
What to Do When You Find It
Once there is a good-faith basis to question reliability, the issue shifts from detection to management. Regard walks through the interplay of the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the ABA Model Rules — each serving a different purpose, each triggered by a different standard.
The key insight is that none of these rules require proof of intent. FRCP 26(g) and 26(e) impose duties based on information, not knowledge. A straightforward proffer raising authenticity concerns is often sufficient to trigger diligence obligations — and in Regard’s experience, results in withdrawal of the evidence roughly half the time.
The other half of the time, parties double down. That, as case law demonstrates, rarely ends well.
At iDS, detecting and challenging unreliable digital evidence is core to how our Digital Forensics, Investigations, and Testimony practices serve legal teams — turning forensic rigour into courtroom credibility when it matters most.
To connect with an iDS expert, visit idsinc.com.
iDS provides consultative data solutions to corporations and law firms around the world, giving them a decisive advantage – both in and out of the courtroom. iDS’s subject matter experts and data strategists specialize in finding solutions to complex data problems, ensuring data can be leveraged as an asset, not a liability. To learn more, visit idsinc.com.
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