An introduction to Electronic data discovery

Computers and other electronic devices, equipment and systems are now widely used by nearly everyone, everywhere and for every purpose. Their use in business and industry, particularly large corporations, has brought their importance into focus.

Organizations regularly and routinely record data on electronic media for processing, transmission, storage or other business functions. Today, most such data is in digital form on magnetic media and includes files, databases, e-mail, application files, instant messages, text messages, phone messages and video recordings. It can be easily modified, deleted, over-written and processed in many other ways. One characteristic aspect is that unlike legacy documents on paper, digital data once recorded, cannot be completely and permanently erased.

New and emerging statutes as well as standards for electronically stored information (ESI) require corporations to conform to certain norms. The Federal Rules of Civil Procedure (FRCP) as amended in December 2006 specifically relate to ESI and the differences between ESI and paper records. The rules require attorneys to discuss electronic data storage with their adversaries soon after the start of litigation.

Digital records are basically transient in nature – they only exist until changed or deleted – in fact, they are constantly undergoing change. But the law is concerned with data as it exists at a certain moment of time. This presents a formidable challenge to the litigant or his computer forensics expert – to establish what data existed, in what form, at a given point of time in history – for exhibiting as evidence in the court of law: electronic data discovery (electronic evidence discovery, eDiscovery, eDD).
Legal discovery is the process of producing and sharing evidence before a trial. In eDiscovery, electronic data is searched for, located and extracted or reconstructed for use as digital evidence in a legal case. Qualified professional hacking for this same purpose is also a form of eDD.

Highly skilled and ace digital forensics professionals from companies such as the Los Angeles, California based DataTriage Technologies have been providing effective repository creation and management, eDiscovery and litigation support services and assisting and advising large corporations in designing related protocols. Specialist engineers and computer scientists, rather than pure-play legal attorneys and law firms are increasingly being consulted by corporations.

Digital data is vulnerable to spoliation. That is, its withholding, hiding or destruction. In the view of federal and most state laws in the USA, spoliation of evidence is a criminal act with spoliators inviting fines and jail terms. eDD helps in preventing spoliation of evidence, and when it does take place, in reconstructing the original data.
eDiscovery experts collect, interpret and report on electronic data; assist attorneys and case managers in management of eDD components of major cases; provide technical advice to attorneys at deposition; and develop protocols for chains of custody and for prevention of spoliation. They also research eDD issues and advise attorneys, case managers and clients of potential risks.

While eDD has the potential to expose any wrongdoing, it also presents issues of invasion of privacy.