Judges encourage lawyers to ask more questions about their electronic evidence
The sophistication of technology and prevalence of electronic data can make it easier than ever for litigators to fight on behalf of their client. But it could also lead to more headaches and problems.
During a Friday judicial panel discussion at ABA Techshow, U.S. District Judge Xavier Rodriguez of the Western District of Texas and Roy Ferguson, a special/private judge, arbitrator and mediator who formerly served as judge of the 394th District Court in Texas, agreed that lawyers should take the extra step of investigating whether their data is legitimate and communicating with opposing parties to make sure cases don’t get bogged down in discovery disputes.
“You’re just asking questions. No one’s asking you to do a forensic investigation or do mirror imaging or anything like that,” said Rodriguez, adding that, if an electronic device is at issue in a case, competent lawyers will try to ascertain whose device it was, whether it was a work or private device and who else might have had access to it. “Everybody just wants to rush to the fight without the talk in advance.”
The wide-ranging discussion covered topics such as spoliation of evidence, sanctions for non-production, and use of demonstrative exhibits. The issue of deep fakes was one that concerned both judges, with Rodriguez acknowledging that it’s possible all parties will have to “expert up” and have someone who can testify as to the accuracy of their evidence or the fakeness of someone else’s.
“The stuff where we fight over whether or not was a deep fake or was it real is going to lead us now into yet another discovery war,” Rodriguez said, adding that it will be messy and most likely expensive.
Follow along with the ABA Journal’s coverage of the ABA Techshow 2026 here.
Ferguson added that unintentional manipulations might be an even bigger problem because artificial intelligence is guessing or filling in blanks like on cropped or blown-up photos or audio transcriptions.
“It is absolutely true that we are getting to a point where, without metadata, we’re not going to know what’s been manipulated and what hasn’t,” he said.
Rodriguez suggested that a good rule of thumb is that lawyers apply the “too good to be true” test. He noted that Arizona is contemplating a change to their ethics rules, saying that “if it looks too good to be true, you have an ethical obligation to make further inquiry before you actually turn it over to opposing parties or a court, because you’re now under an ethical obligation to ensure its veracity.”
Ferguson pointed out that lawyers are used to accepting the veracity of evidence and tend to be skeptical when someone claims it might be fake.
“After 30 plus years when clients would come in and say, ‘Well, I know it looks like that, but that’s not true,’ and we were like, ‘Yeah, sure, I can see it right here. I can I can see you in the video,’—we have to unlearn that habit,” he said.
Instead, lawyers must accept that it’s possible the evidence in question could be fake and do an investigation. The last thing lawyers should do is submit to the court and let the judge figure it out.
“That is not candor to the court, I believe that would violate many states disciplinary rules,” Ferguson said. “If you don’t want to get embarrassed and you don’t want to see injustice done, it is time to be a little more open when people start saying things like, ‘This is bogus.’”
Write a letter to the editor, share a story tip or update, or report an error.
