Lawyer Frequently Asked Questions
- How can email help or hurt my case?
- What is Electronic Discovery?
- What is ESI and why is it important?
- What is “spoliation?”
- Why should I use a computer expert witness?
- What about using my computer consultant or IT department?
- Is expert review necessary?
- I often hear that as an attorney I may be liable for malpractice if I don't consider E-evidence. How realistic is this?
How can email help or hurt my case?
Studies have shown that more email is generated every day than phone conversations and paper documents combined. Email continues to be the "smoking gun" in many cases and often provides crucial evidence in many top verdicts. It is highly recommended that legal counsel be well-versed in email and its evidentiary weight to develop proactive strategies of litigation readiness. If you don’t know about it, someone else will find it. The attitude that it “is not my problem” has had serious legal repercussions for countless organizations and legal teams.back to top
What is Electronic Discovery?
Electronic discovery (“e-discovery”) refers to discovery in civil litigation which deals with Electronically Stored Information. Because of its intangible form, volume, transience and persistence, it is substantially different than paper information. On December 1, 2006, the Federal Rules of Civil Procedure (FRCP) were amended to address electronic discovery by outlining the way electronic evidence is used and admitted in litigation. Examples of the types of information included in e-discovery are: e-mail, instant messaging chats, documents (such as Microsoft Office document files), accounting databases and websites. Also included in e-discovery is "raw computer data" which forensic investigators can review for hidden and deleted evidence.back to top
What is ESI and why is it important?
ESI is an acronym for Electronically Stored Information. The Federal Rules of Civil Procedure defined ESI as: information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software. Judges have ruled that if volatile information (such as RAM) is reasonably accessible it must be retained if litigation is anticipated. It is important that ESI be collected using digital forensic methods by qualified examiners.back to top
What is “spoliation?”
Spoliation is the intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding. It is a criminal act in the United States under Federal law. A party's position in litigation is often impaired by the destruction, alteration or loss of crucial evidence during, and sometimes even before litigation has started. A good e-discovery consultant will work to ensure that electronic data is handled in a forensically sound manner.back to top
Why should I use a computer expert witness?
Computers and technology are important parts of our professional and personal lives. They are used for communication, productivity, entertainment and create digital traces of almost any event. Because of this digital adaptation, it is important to consider computer expert witness testimony as an integral part of any case. It is important to understand that not all electronic evidence is useable. A qualified expert will review the digital evidence for its veracity and merit, and only use the most accurate and pertinent information.back to top
What about using my computer consultant or IT department?
The legal system requires that expert opinions and testimony be made only by qualified individuals. Because of inherit conflicts of interest by using internal IT personnel to review potential evidence; an outside computer forensic expert should be retained to offer an honest and unbiased opinion. All parties in a case should have only the most pertinent and accurate evidence entered into testimony. A qualified computer expert witness should possess relevant technical knowledge and have a sound foundation about the legal process.back to top
Is expert review necessary?
If opposing counsel has retained a computer expert witness it is important that any reports or testimony given by the expert undergo proper peer review. It is necessary to test the validity, accuracy and scientific merits of an opposing counsels’ report about computers, networks, email and other digital components. A properly thought out legal strategy will consider not only one’s own facts and evidence brought upon by discovery but a careful scrutiny of any electronic evidence entered by the other side.back to top
I often hear that as an attorney I may be liable for malpractice if I don't consider E-evidence. How realistic is this?
It is well documented in the media that computer or digital evidence has been the "smoking gun" in many high profile cases. With the majority of new information in businesses of all sizes being created and stored on computer systems of all sizes it is undisputable that digital evidence, be it documents, databases or the omnipresent e-mail should be considered a primary source of evidence. While malpractice is a harsh word, it certainly is not in any client’s best interest to ignore potentially relevant sources of evidence, including computer evidence.back to top