The new e-discovery rules go into effect on December 1. Those rules require that when parties are involved in civil litigation, they must meet within 30 days of the filing of the lawsuit to decide how to handle electronic data, including which records are to be shared and in which electronic format, as well as on a definition for "accessible data."
More than 90 percent of all documents produced since 1999 were created in digital form. However, attorneys fail to do any electronic discovery because of concerns that it is costly, time-consuming and complicated. The reality is, it is usually drastically cheaper to conduct discovery electronically.
Computer forensic techniques allow the cost effective and safe recovery of evidence normally invisible to the user. A typical recovery can be achieved for less than $4,000 using trained computer forensic examiners. There is an incredible amount of electronic evidence that can be harvested, preserved, documented and authenticated.
Law firms need to be seeking computer-generated evidence, especially in cases related to defamation, trade secret and intellectual property theft, sexual harassment in the workplace, fraud, breach of contract, divorce proceedings and spoliation of evidence.
Knowing where to get help is a very important part of your discovery plan. It is imperative to retain an electronic discovery / forensics consultant. They can help create an effective strategy for collecting, analyzing and processing the data.
There are numerous online sources of information available to assist in educating you with regard to electronic discovery and computer forensics. The following is just a partial listing of what is out there:
Web site of The Sedona Conference, a charitable, 501(c)(3) research and educational institute dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights. The Sedona Conference offers working group series, conferences, publications and more. Publications are available on the web site and include several “best practices” manuals for managing electronic data, electronic discovery, and choosing an electronic discovery vendor.
Web site of the Computer Crime and Intellectual Property Section (CCIPS) of the United States Department of Justice. The site has an entire section devoted to electronic discovery, including “recent news” and the DOJ Manual “Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations.”Web site of the International Association of Computer Investigative Specialists. IACIS is an international volunteer non-profit corporation composed of law enforcement professionals dedicated to education in the field of forensic computer science. IACIS members represent Federal, State, Local and International Law Enforcement professionals. The site includes a section on “Forensic Procedures.”
Computer forensics
deals with the collection, preservation, analysis, and presentation of computer related evidence.
The importance of a proper forensic examination can not be stressed enough. There are many forensics examiners in the world but NOT all of them are experts. When engaging a forensic examiner, always scrutinize his or her CV for the amount of training they have received, experience and how many times they have served as an expert witness in a civil matter and actually testified in court.
It is far better to retain a forensic expert as special master. Many times an expert is hired by one party and that party pays the cost of the forensic examination. However, many courts will shift the cost of the forensic investigation when the producing party is shown to have deleted files in bad faith.
At e-fense™ we offer the following forensic services:
- - Full-scale computer forensic analysis
- - Special Master court appointment
- - Live computer forensic acquisitions
- - Secure facilities & forensic labs
- - Forensic software validated in courts
- - Electronic Discovery and Computer Forensics CLE's
- - National and international services
We will:
- - Assist in the preparation of discovery requests
- - Collect and preserve discoverable evidence
- - Initiate and maintain a continuing chain of custody
- - Ensure the integrity of any evidence collected
- - Discover all relevant data, including deleted/hidden data
- - Produce detailed and understandable reports
- - Provide expert witness testimony
Case law:
Zubulake v. UBS Warburg, 2003 WL 21087884 (S.D.N.Y.) "Electronic evidence is frequently cheaper and easier to produce than paper evidence because it can be searched automatically, key words can be run for privilege checks, and the production can be made in electronic form obviating the need for mass photocopying."
Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minnesota 2002) Court granted motion to compel discovery even before Rule 26(f) conference because court concluded that relevant information may be overwritten by normal computer use.
Kucala Enterprises, Ltd. v. Auto Wax Co., Inc., 2003 WL 21230605 (N.D. Illinois) Court held that Plaintiff's deletion and overwriting of files in the midst of litigation amounted to egregious conduct in violation of the duty to maintain and preserve evidence.
Prudential Ins. Co. of America Sales Practices Lit., 169 F.R.D. 598 (D. New Jersey 1997) Sanction of $1 million and attorneys fees for not acting quickly and efficiently to prevent the destruction of data.
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