Investing in Private Evidence: The Effect of Adversarial Discovery

Journal of Legal Analysis, 2022

15 Pages Posted: 23 Nov 2021 Last revised: 15 Mar 2022

See all articles by Alice Guerra

Alice Guerra

University of Bologna - Department of Economics

Francesco Parisi

University of Minnesota - Law School; University of Bologna

Date Written: March 15, 2022

Abstract

Much of the conventional wisdom of evidence law rests on the premise that the amount of evidence available in any given case is exogenously determined. With the advent of evidence technology (e.g., dashcams, black-box technology, digital data storage, surveillance cameras), the availability of evidence is substantially controlled by individuals. In this paper, we show that evidence rules play an important role in determining individuals’ decisions to invest in private evidence. We compare the evidence rules adopted in the U.S. and Europe and analyze their relative impact on the voluntary adoption of evidence technology. We find that by making private evidence not discoverable, more rather than less evidence would be made available to courts.

Keywords: evidence technology, legal discovery, private evidence

JEL Classification: K13, K32

Suggested Citation

Guerra, Alice and Parisi, Francesco, Investing in Private Evidence: The Effect of Adversarial Discovery (March 15, 2022). Journal of Legal Analysis, 2022, Available at SSRN: https://ssrn.com/abstract=3952869 or http://dx.doi.org/10.2139/ssrn.3952869

Alice Guerra

University of Bologna - Department of Economics ( email )

Bologna
Italy

Francesco Parisi (Contact Author)

University of Minnesota - Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

University of Bologna ( email )

Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy

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