In today’s digital landscape, evidence is everywhere—but if you’re an investigator, you know this....
Electronic discovery, or e-discovery, involves identifying, collecting, and exchanging electronically stored information (ESI) for legal cases or investigations [1].
This encompasses emails, text messages, electronic documents, social media, digital images, and other forms of electronic communications. E-discovery is an essential tool in litigation; involved parties can access crucial evidence by collaborating with forensic investigators.
Litigators review information relevant to the case. In the legal process, e-discovery assists lawyers in identifying critical evidence that may be used to support their case. It is also employed to protect relevant information from destruction or alteration. E-discovery has become a significant component of investigations in our current digital era.
The Process of E-Discovery
E-discovery encompasses several stages and requires the cooperation of multiple involved parties. The digital forensic team is responsible for extracting and collecting evidence from digital devices. Research teams, consisting of attorneys and legal assistants, organize the information collected. They may identify data essential for resolving the case or information that is confidential and irrelevant.
Party counsels include the attorneys who ultimately determine the information to be utilized, guide the assistants, and may request additional information from the digital forensic team. The Chief of Forensic Operations provides evidence to research teams, maintains non-disclosure, secures privileged information and the procedures used to discover it, and acts as a liaison between all parties [1].
The e-discovery process includes…
1. Identification - both parties may identify the information they consider relevant to their investigation. During this phase, the whereabouts of devices containing this potential evidence are established.
2. Preservation and collection - during this stage, digital evidence is preserved and collected using forensic methods and standards that ensure the integrity of the evidence. The evidence is placed under a legal hold and cannot be destroyed.
◦ Preservation may also involve standard operating procedures that forensic teams follow to maintain the chain of custody. Standardized rules dictate how digital evidence is collected and the best practices to ensure that data is neither erased nor altered.
◦ A timeline view and charts of the files and their metadata will be created. Often, digital forensic software can generate these timelines and charts of the evidence collected.
3. Processing, review, and analysis - Forensic experts will process the evidence obtained from the digital devices, uncovering any hidden evidence. The legal team will then review it.
◦ Forensic experts will employ tools to retrieve pertinent data, such as emails, audio, documents, video, and images. Specialized tools may even recover deleted documents, compressed files, documents embedded in emails, and archives.
◦ Evidence containers are also decrypted, de-duplicated, and rendered user-readable with digital forensic tools.
◦ The resulting data is stored in a storage area network (SAN) or using network-attached storage (NAS) [1].
4. Production - Research teams will then organize the evidence into physical documentation. Attorneys are responsible for converting it into evidence that can be presented.
5. Presentation - Evidence obtained in litigation must be presented to other attorneys, judges, juries, mediators, and deposition participants. A timeline view of the evidence may be displayed to provide a visual representation of the events. It is made accessible to all audiences.
Why is E-Discovery Important?
Understanding the e-discovery process ensures that data is preserved and that privacy rules are adhered to during collection and processing. E-discovery is a complex process that can take several months to complete. All relevant information is collected and preserved so parties can present their case in the best possible light. Tampering with digital data, along with poor execution and presentation, could result in the loss of a lawsuit.
E-discovery can also help reduce the time and cost of litigation by enabling lawyers to locate and review relevant evidence more efficiently and rapidly. It is increasingly employed to settle disputes outside of court, which can help alleviate the burden on the legal system.
What was once a manual process has now adapted to our modern world and transitioned to more contemporary solutions. With the assistance of forensic analysts, e-discovery has embraced an automated approach achieved using digital forensic software tools. Artificial intelligence and cloud platforms have facilitated the identification and review stages of the e-discovery process. Legal teams can access more evidence than ever before.
With the capability to sift through large amounts of digital data on storage devices such as cellphones, computers, tablets, and more, cases and lawsuits can progress swiftly. Without e-discovery, legal teams would find themselves in a primitive era where physical documents must be located, sorted, and preserved. As technology continues to advance, digital forensic software evolves, rendering digital data an essential part of investigations.
