Increasingly, the answers to the most fundamental litigation questions – the “who, what, where, when, and why” – are contained in electronically stored information (ESI), which can be retrieved through electronic discovery (e-discovery) and/or computer forensics.
Before you get to that crucial step, however, you need to understand both the applications and parameters of e-discovery and computer forensic examinations and investigations as the differences can be critical to the outcomes of litigated matters.
E-Discovery and Computer Forensics
The primary focus of standard e-discovery is the collection of active data and metadata from multiple hard drives and other storage media. Litigation can be supported by active data (information readily available to the user, such as e-mail, electronic calendars, word processing files, and databases), or by metadata (that which tells us about the document’s author, time of creation, source, and history).
Data collected in e-discovery can be limited; for deeper recovery, computer forensics is often used.
The goal of computer forensics is to conduct an autopsy of a computer hard drive – searching hidden folders and unallocated disk space to identify the who, what, where, when, and why from a computer. A significant amount of evidence is not readily accessible on a computer; when this occurs, a computer forensic examination is necessary.
Data Gathered by Computer Forensics
When we use computer forensics, we are typically retrieving specific, accessible, and inaccessible data, such as:
–Automatically stored data: Data that is automatically stored by the computer, like with an automated backup. A file that has been purged from a server may still exist as a copy on the user’s hard drive.
–Deleted files: “Deleted” but not destroyed. Deleted data can remain on a hard drive until it is overwritten or wiped.
–Residual or “ghost” data: Data that remains recoverable from a computer system, but isn’t readily accessible, such as deleted files or file fragments.
–System data: An electronic trail of activity on a computer or network.
–Wiping software: If wiping software has been used, it can be detected with computer forensic software.
Preservation of the original evidence is critical. Creating a mirror image of the storage device produces an exact replica, bit for bit, of the original device that allows investigation of past use without alteration of the evidence.
The Court’s View of Computer Forensics
In the last decade, it has become common for the courts to enter an order requiring the mirror imaging of hard drives and peripheral devises that could contain responsive and relevant evidence to an opposing party’s request for production. See, e.g., Communications Center, Inc. v. Hewitt, 2005 WL 3277983 (E.D. Cal, April 5, 2005).
However, computer forensics and mirror imaging have been constrained by the courts to avoid overly broad and intrusive measures without sufficient justification. In McMurdy Group v. American Biomedical Group, Inc. 9 Fed. Appx. 822, 2001 WL 536974 (10th Cir. 2001), the Court of Appeals found that mere skepticism alone of a party’s will to produce copies of relevant and non-privileged documentation isn’t sufficient to warrant computer forensics.
Courts have found, though, that reasonable conclusions about the potential whereabouts of relevant evidence can be justification for computer forensics. In Balboa Threadworks, Inc. v. Stucky, No. 05-1157-JTM-DWB, 2006 U.S. Dist. LEXIS 29265, 2006 WL 763668 (D. Kan. Mar. 24, 2006), the court ruled that computer forensics recovery was “particularly important” in this copyright infringement case because of the use of computers to allegedly download copyrighted material. Even though one defendant claimed that his computers were not used for the benefit of the business, the use of said computers to draft a document pertaining to infringement was reason enough to find evidence on any of the computers in question.
To avoid the denial of a request, it helps to create specific and limited requests. See e.g., Rowe Entertainment v. William Morris Agency, 205 F.R.D. 421, 427-28, 432-33 (S.D.N.Y. 2002), or Simon Property Group L.P. v. mySimon, Inc., 194 F.R.D. 639, 641 (S.D. Ind. 2000).
The Bottom Line
Computer forensics and e-discovery are both valuable ways to retrieve ESI, and countless cases have been critically bolstered by the ESI gathered in the course of an investigation and discovery process.
Because the discovery of ESI can easily become overly broad and intrusive, one must have a clear understanding of the issues when considering the deep-dive approach that computer forensics requires.
For more information, reference my article in “Dunn on Damages” from the Fall 2012 issue: Click here.