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eDiscovery refers to discovering data electronically. This electronic discovery includes the research, identification, analysis, and retrieval of data through secure environments. This data is often sought-out by digital forensics experts for use in legal matters. Those who specialize in this eDiscovery are often referred to as Litigation Specialists, or Cyberforensics Experts.
Once relevant information is identified through eDiscovery channels, attorneys have the opportunity to place it on legal hold. The electronic data is then printed-out, or converted into PDFs (Portable Document Formats) or TIFFs (Tagged Image File Formats) for use in the courtroom. Once presented, the court recorder transcribes all the information verbatim. These certified experts use stenograph machines, and are able to type about 225 words per minute. Their certification standards are set in the United States by the National Court Reporters Association (NCRA). Court reporting is a critical function, as it documents the official transcripts of court hearings, depositions, and other legal matters.
eDiscovery involves electronic data. This form of data has been categorized as different from paper data. This is due to its transient, intangible, persistent nature. In addition, metadata is usually attached to electronic files, but not to information that originates on paper. Metadata can provide essential information to a case, for example, the creation date and time of a file. This type of timeline is useful in many cases, including issues involving copyright infringement or intellectual property rights.
eDiscovery can be performed through many channels. Among them are audio files, instant messages, animation files, e-mails, websites, databases, spreadsheets, calendar files, and CAD/CAM (computer-aided design and drafting) files. Even files involved with malware, viruses, spyware, and Trojans can be isolated, secured, examined, and traced.
There are various types of ediscovery software, for use in maintaining and accessing electronic discovery. For the most valuable and efficient e-discovery software, it is best to work with experts in the field.
Forensics experts are often involved in eDiscovery processes. They can examine a file's raw (unprocessed and unmanipulated) data for hidden evidence, or retrieve information from erased hard drives. A file's original format is referred to as its native form. Among the formats in which data can be reviewed and presented are TIFF and PDF pages, native formats, and printed papers.
eDiscovery is very valuable due to the inherent nature of digital data. It can be searched efficiently and quickly, as opposed to the time-consuming processes required for analyzing data on paper. In addition, the electronic data is difficult to destroy, especially if it is distributed through a network. This is due to the fact that the data is stored on many hard drives, and even when it is deleted, it can be retrieved. The only way electronic data can be completely erased is through the physical destruction of the hard drive onto which it was stored.
eDiscovery professionals include those who are skilled at computer forensics. Known as cyberforensics experts are skilled at analyzing the data stored on a computer's hard drive. They are responsible for performing structured investigations while maintaining documented chains of evidence. Their analyses can determine what happened on a computer, and when it occurred. Often, they can also identify those responsible for the data.
eDiscovery professionals often identify computers which are relevant to cases. Once designated for further investigations, cyberforensics experts isolate and secure the computers in order to prevent contamination. Then, the experts make digital copies, or clones, of the hard drives. The original computers remain in unaltered, pristine conditions, and are stored in secure locations. All the analyses are then performed on the cloned copies of the hard drives.
Among the techniques used in eDiscovery are searches of hidden files and folders. In addition, these technicians also examine the hard drive's unallocated disk space. Sometimes, copies of deleted, corrupted, or encrypted data are stored in the unallocated spaces. Any evidence that is discovered on digital copies of hard drives is compiled in an official finding report. It is then verified with the original source. The reports that are produced from eDiscovery investigations will be utilized during legal proceedings, which include discovery, depositions, and litigation.
The important role of eDiscovery to court cases prompted the United States Supreme Court to adopt procedural amendments. In 2006, the Federal Rules of Civil Procedure were amended to create an electronic data category. For the first time in history, instant message chats and e-mails were identified as potential sources of critical legal information. Companies were directed to archive this data for future retrieval and analysis, if necessary. These eDiscovery archives must be secure, and prevent alterations and deletions of the original information. Some companies have secure databases which assign unique codes to their archived data in order to ensure its authenticity.
The Supreme Court's 2006 amendments involving eDiscovery forced all civil litigants into compliance with regard to electronic data. They must comply with specific regulations for the maintenance, storage, and retrieval of all ESI (Electronically Stored Information). The improper management of this sensitive data can result in the potential spoilage of evidence, sanctions, summary judgments, and adverse inference. Mismanagement can also lead to lawyers being brought before the bar and risk losing their licenses to practice law.
eDiscovery compliance requires companies to develop strategies to identify, preserve, collect, and produce electronically stored data. A Minneapolis-based company, Kroll OnTrack, Inc. Conducted a recent study to assess the eDiscovery policies of the corporate world. They polled 203 individuals who represent the Information Technology and in-house counsel departments of companies across the United States. Their research revealed many companies are not taking social networking into account when establishing procedures for ESI discoveries.
Kroll OnTrack's study indicated about 52 percent of the organizations polled have established formal ESI, eDiscovery strategies. This reflects an increase of six percent over the prior year. However, only 38 percent of these organizations have conducted tests on their policies. In addition, about 45 percent of those who have established the policies do not know if they have been subjected to testing. Of all those polled, more than half did not know if their organizations had data maps, or secured locations where the data is stored. EDiscovery experts say data maps are essential components in the effective, secure retention and retrieval of critical data.
eDiscovery is a dynamic, evolving field. It is often the subject of controversies involving constitutional rights and personal privacy. In addition, eDiscovery procedures often prompt many legal, political, and security issues. Federal regulators, civil libertarians, and individual activists continue to bring awareness to these issues, and work towards productive resolutions.