THE FORMAL RECOGNITION TRAP: ADMISSIBILITY WITHOUT PRODUCTION STANDARDS AND THE DENATURING OF ELECTRONIC EVIDENCE IN CIVIL LITIGATION

Abstract

While civil procedural codes across diverse legal traditions recognize electronic evidence as admissible proof, this statutory acknowledgment fails to yield autonomous probative effectiveness. Applying Ecuador’s Código Orgánico General de Procesos (COGEP) as a diagnostic baseline, this paper examines the structural conditions under which digital evidence undergoes formal admission only to face subsequent procedural neutralization within civil litigation. Methodologically, the study adopts a Multiple Mini Case Study design grounded in critical realism to analyze two contemporary Ecuadorian civil proceedings: a contractual banking dispute (2023) and a financial accounting dispute (2024). These cases are evaluated via a priori coding schema structured across four dimensions: admissibility conditions, production deficiencies, judicial evaluation patterns, and procedural consequences. To ensure analytical rigor, the strategy integrates doctrinal analysis, within-case process tracing, cross-case pattern matching, and corpus-assisted triangulation with a 35-paper systematic literature mapping, alongside comparative benchmarking against India, Poland, the United Arab Emirates, and ISO/IEC 27037 standards. Despite variations in evidence types, courts, and litigating parties, both proceedings exhibit identical deficiency profiles. These shortcomings include a total absence of chain-of-custody documentation, a lack of cryptographic integrity verification mechanisms, post-hoc expert-dependent authentication, and the systematic subordination of digital data to expert testimony. This invariant pattern indicates systemic friction rather than idiosyncratic judicial failure. Ultimately, COGEP’s procedural vacuum between initial admission and final judicial weighting denatures electronic evidence. This structural omission reduces autonomous proof to raw material for expert opinion, reverses the de facto burden of proof, and fosters a profound inequality of arms. Consequently, technology-neutral codification of chain of custody, integrity verification, digital-specific authentication, and standardized judicial assessment criteria remains an imperative path to restore the autonomous probative function of electronic evidence.