Investing in Private Evidence

Abstract

Technological advances have changed our ability to acquire and save information, with far-reaching implications in legal discovery and evidence. In this paper, we analyze the interrelated effect of legal presumptions and discovery rules in incentivizing the voluntary adoption of private evidence technology. We show that, under any legal presumption, by making private evidence investments not discoverable, more evidence, rather than less, would be made available to courts, with a likely increase in the accuracy of adjudication. Alternative legal presumptions and asymmetries in role-probabilities affect the type of evidence technology likely to be adopted. We compare the legal presumptions and discovery rules adopted in the U.S. and Europe and consider which evidence regime is likely to foster greater investments in private evidence.