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E-EVIDENCE - ELECTRONIC EVIDENCE

E-evidence, especially e-mail, has been called the "smoking gun of the future," based on the potential to contain relevant information. If you havenít worked with electronic evidence yet, you probably will in the near future. 

Most e-mail users do not stop to think that their messages cannot be easily deleted or that they are not entitled to a right of privacy in messages sent from their office or company computers to personal friends or family members. This sense of false security causes writers to let down their guard and converse more casually, often resulting in the revelation of damaging information. These messages, however, are as permanent and public, as if the information was printed out on company letterhead.

Consider this e-mail message: "Do we have a clear plan on what we want Apple to do to undermine Sun?" The writer of this 1997 e-mail was none other than Bill Gates who e-mailed his Microsoft executives. Considering there were 108 million e-mail messages sent last year, you can imagine who else can be found among those messages.

Everyone of the legal team should understand how to deal with e-evidence. Here are some general tips to remember:

  • Most states define the term "document" to include e-evidence and the Federal Rules of Civil Procedure have included electronic data in the definition of documents since 1970.
  • All e-evidence should be disclosed. In December, 2000 an amendment to F.R.C.P.26(a)(1) increased the burden on producing parties to disclose the existence of e-evidence when a lawsuit is commenced. To avoid an "overbroad" response to a request for electronic media, tailor the wording to the opposing partyís information system as much as possible.
  • When you receive a CD of electronic data, do not put it into your computer and look at it. That will destroy its admissibility and may change the file format when you open it. Be sure to copy it and preserve the original.
  • Be sure to receive the electronic date in its electronic form. Donít allow the opposing party to produce the evidence only in paper form. Some of the most incriminating e-evidence is the invisible coding, or meta-data, inserted by a computer into every message.
  • Use traditional discovery to broaden the scope of your e-evidence investigation. If a companyís network serve is analogous to a central file room, then the equivalent of the desk drawn or personal organizer is a notebook computer or personal digital assistant (PDA). You should also investigate the possibility of a home computer, zip drives and CDs.
  • One way to reduce the sheer volume of e-evidence is to eliminate duplicate copies of e-mails and attachments. Usually 20% of standard files are duplicates of each other with a higher percentage for back-up tape collections. A good e-evidence management company should be able to de-dupe data across e-mail files, e-mail attachments, back-up tapes, hard drives and network directories.

E-evidence management companies use new technology to convert as many as two million pages a week yielding meta data fields of data, PDF or TIFF image format and fully searchable text for each file converted in a fraction of the time it takes you to print native files. After completing the conversion process, most companies offer both a hosted solution to store the data on a server for Web accessibility, or convert the files to a load-only format that can be view4ed through the firmís exiting software applications.

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