Don’t Touch That! and Other E-Discovery Issues

The ability to preserve and access electronically stored information (ESI) took on greater urgency when amendments to the Federal Rules of Civil Procedure went into effect in December 2006. These amendments, referred to as the electronic discovery (e-discovery) amendments, focus on the discovery phase of civil litigation, audits, or investigations. Discovery is the investigative phase of a legal case when opponents learn what evidence is available and how accessible it is. When ESI is the subject of discovery, it is called e-discovery. Recognizing that most business and personal records and communications are electronic, Judge Shira A. Scheindlin stated, We used to say there’s e-discovery as if it was a subset of all discovery. But now there’s no other discovery.” Computer forensics experts, given their expertise in identifying, acquiring, preserving, and searching ESI, can play a key role throughout the e-discovery process, if they choose to do so. They can also assist in the drafting of the e-discovery request, in preparing the response to such a request, and initiating a legal hold for evidence preservation. The objective of this paper is to provide an overview of the e-discovery amendments and case law, their impact on the duty to preserve and produce ESI, and the computer forensic work that can support the e-discovery process. Keywords: Electronic discovery, litigation, preservation, Federal Rules of Civil Procedur