What is Electronic Discovery, or “E Discovery”?
Online services like email and social networks have existed as long as the Internet, going back to its earliest inventions when the web was first developed by the military as a communication tool. It’s only been recently that the general public has gotten on board and utilized these services to the extent of our modern day plugged in world. The use of email and social sites like Facebook has grown exponentially. People of all ages and all walks of life are rapidly communicating online, creating electronic documents that can always find their way into a courtroom as evidence.
Electronic discovery, also known as E discovery, refers to discovery in civil litigation of evidence in an electronic format. It’s also referred to as electronically stored information. It’s led to legal troubles from the Pentagon down to the Balloon family as trails of legal oversights become evident through electronic documents like email and other web functions. E discovery often contains Meta data that is not part of paper documents, although paper documents can readily be scanned, placed online and imbedded with the necessary Meta data.
Examples of electronic discovery can include email, instant messages, Word or other word processing documents, databases, CAD/CAM files, web sites and any other information electronically stored that could be of interest to a civil or legal suit. Raw data that forensic investigators can review for hidden evidence also falls under E discovery.
Electronic discovery first officially became a legal term with the Federal Rules of Civil Procedure that became effective in 2006. The law specifically states that all potential discovery evidence, including emails be preserved and produced when relevant. The rapid implementation of instant messaging within the business world in 2006 to 2007 requires that these messages also be saved and retrievable if they should become legal evidence.
The Loophole of Non-Existence
Very often, however, electronic evidence is delayed or never produced in a courtroom proceeding simply because the data is inaccessible. Backup tapes may be missing, erased or abused. Some plaintiffs have argued that the prosecution needs to prove that the evidence exists in the first place, which can be difficult to do concurrently. Companies can be fined if evidence is erroneously erased, but often it’s a slap on the wrist compared to the gravity of the charges the destroyed evidence could have unveiled.
Becoming Harder to Hide
When electronic preservation is in place for instant messaging and email, it’s a fairly simple task to retrieve it. Most archiving systems include a unique code to the archived message or email to establish authenticity, preventing alterations to the original messages, as well as deletions and access to the data from unauthorized persons.
Voice mail is another form of viable electronic evidence. The voice mail of most employees is stored in a computer until deleted by the user, giving employers legal evidence to use in the event of legal litigation involving the employee.
The existence of company issued PDAs or Smart phones that may contain discoverable material creates collection issues, since acquiring data from the devices can sometimes be difficult.
Computers Have Ears
In this digital age, it’s safe to assume that every email you send, social site you visit, or instant message communication is permanently recorded and accessible to legal parties should they end up presenting legal dilemmas. Just like Nixon’s private tape collection, electronic devices provide their own set of ears. Getting caught in a legal bind becomes that much easier when many of our forms of communication we tend to regard as private are electronically recorded for posterity. Electronic data has led to the downfall of politicians, banking executives and even reality TV show personalities. Always be careful what you tell a computer, as someone likely is listening.