Pegasystems Inc. v. Appian Corporation

Issue

May a trial court exclude a party's electronic evidence, and refuse to let the party even attempt to authenticate it, because the electronic evidence is presented on a different device than the one used to transmit it in discovery, and does the susceptibility of electronic evidence to tampering justify a higher authentication standard?

Rule

Virginia Rule of Evidence 2:901 states that the requirement of authentication is satisfied by evidence sufficient to support a finding that the thing in question is what its proponent claims, a standard the Court of Appeals of Virginia describes as very modest, asking only whether there is evidence sufficient for the trier of fact to so conclude under Walters v. Littleton. Under Midkiff v. Commonwealth, electronic documents or records merely stored in a computer raise no computer-specific authentication issues. A court abuses its discretion when it makes a mistake of law, fails to weigh a relevant factor, or believes the law requires something it does not. Once the admissibility threshold is met, gaps in the evidence go to weight rather than admissibility under Church v. Commonwealth.

Application

Appian's discovery request sought Pegasystems' business process management software, and Pegasystems produced it on a laptop. Pegasystems twice disclosed before trial that it would introduce versions of its software, listing the exhibits as laptops containing specific versions, and Appian did not object. At trial Appian showed the jury Pegasystems' software on a laptop of its own choosing. When Pegasystems tried to do the same, Appian objected that Pegasystems could use only the original discovery laptop, which by then would not start. The trial court sustained the objection and excluded the software and any demonstrative images taken from it, saying that computer was not coming into evidence one way or another because it was not the same computer that was provided. Pegasystems proffered Stephen Bixby, who had led development of the software and would testify that what Pegasystems wanted to show was the exact same thing produced in discovery. The trial court acknowledged Bixby might be able to authenticate what was on the machine but refused to allow it, saying it would not hold a trial within a trial to authenticate. The Court of Appeals of Virginia held this an abuse of discretion. The trial court had conflated the evidence, which was the software, with the medium used to transmit it in discovery, and the modest Rule 2:901 standard asked only whether there was evidence sufficient for the jury to find that Pegasystems' software was Pegasystems' software. The court identified five circumstances that made the refusal indefensible: Bixby was present and prepared to testify the software was the same as tendered, there was no specific claim of tampering or corruption, Appian had already shown the software to the jury on its own laptop, authentication would not have stopped Appian from attacking the software before the jury, and Appian had lodged no pretrial objection to the exhibit designation. On the manipulation point, Appian argued from United States v. Browne and an unpublished decision, Knowles v. Commonwealth, that electronic evidence deserves a higher authentication standard because it can be altered. The Court of Appeals read those cases the other way: neither holds that a higher standard applies in Virginia, and both, while recognizing that electronic evidence may be susceptible to tampering in certain circumstances, apply traditional authentication principles. In a footnote attached to that analysis the court looked ahead, observing that as artificial intelligence progresses, battles over the accuracy of computer images and the manipulation of deepfakes can be expected to intensify, and then immediately disclaiming any such issue in this case: no such issues were raised, and basic authentication efforts were simply prohibited.

Conclusion

The Court of Appeals of Virginia affirmed in part, reversed in part, and remanded for a new trial on the Virginia Uniform Trade Secrets Act claims, rejecting Pegasystems' argument that it was entitled to judgment as a matter of law but finding a series of trial errors, of which the refusal to let Pegasystems attempt to authenticate its software was one. The deepfake discussion is dictum in a footnote and the court said so plainly; nobody in this case claimed any evidence had been altered or generated. What the decision actually settles for Virginia practice is that electronic evidence is authenticated under the ordinary Rule 2:901 standard and that a trial court may not refuse a party the chance to try.

Instead, both cases, while noting that electronic evidence may be susceptible to tampering in certain circumstances, suggest that traditional authentication principles apply even to electronic evidence.

Judge Frank K. Friedman for the court, footnote 26, rejecting a heightened standard for electronic evidence

As artificial intelligence progresses, battles over the accuracy of computer images and manipulation of "deepfakes" can be expected to intensify.

Judge Friedman, footnote 28, dictum

No such issues were raised here. Basic authentication efforts were simply prohibited.

Judge Friedman, footnote 28, immediately disclaiming any deepfake issue in this case

the trial court also abused its discretion by refusing to permit Pega to attempt to authenticate its software evidence

Judge Friedman, summary of holdings at the close of the opinion

Why it matters. Pegasystems is the case to cite when an opponent argues that digital evidence should face a heightened authentication bar because digital things can be faked. The Court of Appeals of Virginia says no: traditional principles apply, susceptibility to alteration goes to weight, and the answer to doubt is cross-examination rather than exclusion. The same court flags that genuine deepfake fights are coming, which is precisely why it matters that this holding was reached before one arrived.

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This summary was written from the opinion itself. Every quotation above was located in the text of the decision it is attributed to. It is a summary for public education and is not legal advice.

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