E-DISCOVERY
Think About Digital Forensics When You Conduct E-Discovery By ROBERT A. STINES been preserved in the anticipation or conduct of litigation is lost because reasonable steps were not taken to preserve it, and it cannot be restored or replaced through additional discovery. The duty to produce ESI in proper format is based on Rule 34, which provides that when receiving a request to produce, if the request does not specify a form for producing ESI, a party must produce it in a form in which it is ordinarily maintained or in a reasonably usable form or forms.
DIGITAL FORENSICS IN E-DISCOVERY
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ociety’s dependence on digital platforms and networks has changed our legal system. Digital evidence is now a critical component of both civil and criminal proceedings. Documents and electronically stored information are maintained and stored using software such as tagged image file format (TIFF), portable display format (PDF), electronic mail, text messages, databases, and so forth, all of which are electronically stored information (ESI). With ESI, litigators are searching for relevant digital evidence, which is information that is either transferred
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or stored in binary format. Litigators tend to overlook that relevant digital evidence is potentially stored on many devices — laptops, desktops, mobile phones, tablets, digital cameras, flash drives, CDs, DVDs, and even wearable devices. In e-discovery, there are, at a minimum, two different duties that practitioners should always consider: (1) the duty to preserve ESI and (2) the duty to produce the ESI in proper format. The duty to preserve is derived from Federal Rule of Evidence 37, which allows sanctions for failure to preserve ESI. A court may sanction a party if ESI that should have
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The Sedona Conference defines e-discovery as the process of identifying, locating, preserving, collecting, preparing, reviewing and producing ESI in the context of the legal process. Successful e-discovery relies heavily on digital forensics tools and expertise. Similar to e-discovery, computer forensics is the use of analytical and investigative techniques to identify, collect, examine and preserve information that is magnetically stored or encoded. Recently, because computer forensics has expanded to include more than just computers, the term “digital forensics” has become the term of choice for forensic examiners. In civil litigation, when a party receives a request for discovery (even without a specific request BACK TO CONTENTS
