Falsified Data in Litigation: Detecting, Challenging, and Correcting Unreliable Evidence

This is the ninth article in a ten-part series examining how technology is reshaping evidence, litigation, and dispute resolution. In this installment, we focus on falsified data in litigation—how it arises, how to detect it, and what to do when it appears. Other articles in the series can be found here.

Have you ever had the sense that a piece of evidence was off, but you couldn’t quite articulate why? It seemed too good to be true, too clean, too convenient.

If so, you’re not alone.

Falsified evidence is appearing more frequently in litigation, and the trend shows no sign of slowing. Advances in digital tools, the proliferation of data sources, and the emergence of generative AI have lowered the barrier to creating persuasive, but unreliable, artifacts.

By falsified evidence, I’m referring to documentary, digital, or testimonial materials that have been fabricated, altered, manipulated, or misrepresented so that they no longer reliably reflect the events or information they purport to represent. 

They fail to satisfy the reliability and authentication requirements of the Federal Rules of Evidence (particularly Rules 901 and 403). When produced or relied upon in discovery, they trigger the corrective and reasonableness obligations imposed by the Federal Rules of Civil Procedure.

Four practical questions frame the discussion:

1. Why does falsified evidence happen?
2. Is digital evidence easy to create?
3. How can you detect falsified evidence?
4. What should you do when it appears?
5. Why does falsified evidence happen?

False evidence is not new—there are historical examples—but the frequency of its occurrence, or at least the risk of it, has increased with the rise of digital evidence.  Looking at the “Fraud Triangle” can help us explain the phenomenon. 

The Fraud Triangle

When understanding why good people make bad choices, we can look to the Fraud Triangle, a concept criminologist Donald Cressey developed in his 1953 book: “Other People’s Money: A Study in the Social Psychology of Embezzlement.” Cressey identified three conditions that tend to converge in cases of intentional fraud: pressure, opportunity, and rationalization.

That framework remains useful today. As digital evidence becomes central to litigation, and as low-cost editing tools and generative AI proliferate, the cost of creating digital artifacts has dropped sharply. It’s easy to understand the rise in false digital evidence.

As I once explained to a judge at a conference: imagine that all evidence were made of wood, that everyone had a fully equipped woodworking shop at home, and that each person also had a robotic carpenter capable of producing flawless replicas. How much falsified wooden evidence would you expect to see?

Probably a lot.

Fortunately, for trained investigators, these copies may look perfect but never are.

The myth of easy digital falsification

A common and dangerous misconception is that digital evidence is easy to fabricate or alter.

While individual digital artifacts are easy to create or modify, modern digital evidence is no longer isolated. Instead, this evidence is interconnected. It is replicated across devices, synchronized with servers, logged by systems, versioned in the cloud, and preserved in backups.

Every email, for example, has at least a sender and a recipient. But it also typically has multiple additional copies across phones, laptops, tablets, servers, cloud repositories, audit logs, and backup systems. Then there are variations sent as forwards and replies. These interdependent copies are difficult for single bad actors to access and extremely difficult, if not impossible, to fully falsify.

That interconnectedness is not a weakness. It is often the path to the truth.

A three-step method for detecting falsified evidence

In order to better identify and qualify falsified evidence, I teach a simple three-step approach to detection: the gut check, the checklist, and the second opinion.

1. Conduct a subjective gut check. This is the sense that something’s wrong. That the evidence appears too good to be true. The biggest challenge is that many attorneys shake off this feeling. They don’t act on it. Instead, I teach attorneys to lean into this feeling, then triage the evidence by progressing to the second step.

2. Apply an objective checklist. This is the evaluation of four quick questions: have you been presented with a single piece of perfect evidence, with no original, and a complicated story? If the answer to all four of these is “yes,” then you may well be dealing with falsified evidence.

3. Get a second opinion. This means looking for another source of information that can be used to detect or highlight differences. This can include supporting copies, conducting more discovery, holding a deposition, or even engaging a forensic expert to analyze the copy you have. 

Don’t worry—you do not need to inspect every piece of evidence for falsification. As I once told a client: if you want to know which exhibit is the most likely candidate, the other side will usually tell you—it’s the evidence they rely on most heavily.

It’s fake—What do I do now?

Once you have moved through the three detection steps and have a good-faith basis to question reliability, the issue shifts from detection to management.

This requires understanding how the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the American Bar Association (ABA)’s Model Rules of Professional Conduct address false evidence. Each serves a different purpose.

ABA Model Rule 3.3 (Candor Toward the Tribunal) prohibits a lawyer from knowingly offering false evidence. This rule protects lawyers from unfair discipline and hinges on actual knowledge. This high standard is “knowingly”.

The Federal Rules of Evidence, particularly FRE 901, focus on authentication. It asks whether there is sufficient evidence that a document is what it purports to be. This protects the factfinder.

The Federal Rules of Civil Procedure protect the court and the process. FRCP 26(g), 26(e), and 11 impose duties based on the lower standard of “information,” not knowledge.

Importantly, none of these rules require proof of intent.

Under FRCP 26(g), counsel certifies that discovery responses are complete and correct after a reasonable inquiry, based on their “knowledge, information, and belief.” Under FRCP 26(e), that duty continues: parties must timely correct or supplement materially incomplete or inaccurate responses. FRCP 11 governs continued advocacy based on factual contentions.

A proper proffer can be simple and restrained. Something like: “We have identified material issues affecting the authenticity and reliability of Exhibit X that warrant correction or withdrawal before the Court relies on it.”

That statement alone is often sufficient to trigger further diligence obligations under Rules 26(g) and 26(e). At some point, continued reliance on the evidence, refusal to investigate, or failure to correct can convert information into knowledge. Courts often describe this transition as willful blindness, reckless disregard, or “turning a blind eye.”

Note that false evidence is categorically different than false testimony.

As Harvard law professor and defense attorney Alan Dershowitz famously observed, the adversarial system anticipates that witnesses may lie and relies on cross-examination to expose those lies. Documentary and digital evidence, however, enters the record with a presumption of reliability. For that reason, courts treat falsified evidence not as a credibility issue, but as a threat to the integrity of the process itself.

What happens next

You have a choice—do you challenge the evidence before trial or do you challenge it in front of the jury?

In my cases, counsel made a proffer prior to trial. In my experience, when a rational proffer is made, the evidence is withdrawn about half the time. That is the outcome the rules are designed to encourage.

The other half of the time, we’ve seen parties double down. Cases proceed through motion practice and, occasionally, evidentiary hearings. Continued reliance on falsified evidence almost always makes matters worse. Technology is complex. Attempts to further explain or justify a problematic exhibit tend to introduce more inconsistencies, not fewer. And the submission of further bad evidence can convert “information and knowing” into “intent.” 

In a case we worked on, Rossbach v. Montefiore Med. Ctr., the judge stated it quite clearly:

“In short, at every step of these proceedings, [counsel] failed to take reasonable steps to preserve critical evidence and failed to recognize the gravity of his client’s misconduct [in creating false evidence] and its implications for his own duties. He instead burdened the defendants and this Court by suborning his client’s perjury and making frivolous and procedurally improper legal and factual arguments.”

If the evidence is not withdrawn, the proffer often marks the earliest point for sanctions analysis, although courts sometimes consider conduct leading up to notice as well.

Two fairly recent examples of sanctions issued against the plaintiffs and their counsel for submitting and continued assertion of false evidence include Rossbach (later reversed in part, confirmed in part, remanded for sanctions, and settled for an undisclosed amount) and Laba v. JBO Worldwide Supply Pty Ltd.

Conclusion

Falsified evidence is no longer a fringe problem. It is an inevitable byproduct of a litigation system increasingly dependent on digital artifacts combined with easy access to digital tools and generative AI. Trusting your gut and asking four simple questions can effectively identify problem exhibits.

The good news is that the rules already provide a workable framework. The Federal Rules of Evidence protect the factfinder. The Federal Rules of Civil Procedure protect the integrity of the process. The ethical rules protect lawyers from unfair discipline while demanding honesty once knowledge is established.

The real risk is not that falsified evidence exists. The real risk is treating evidentiary reliability as an afterthought, rather than a threshold question posed by FRE 401: “Is this evidence what it purports to be?”

Those who learn to detect falsified data early, raise concerns responsibly, and act proportionally will not only protect their clients—they will protect the court, the record, and their own credibility in an era where reliability can no longer be taken for granted.

Closing thoughts: Join the conversation

This is just one piece of the bigger conversation on the future of evidence. As legal professionals, we need to stay on top of emerging technologies.

Let’s continue the discussion on this LinkedIn post.