Uncovering Hidden Evidence: A Brief Guide to E-Discovery

Electronic discovery or e-discovery is identifying, collecting, and exchanging electronically stored information (ESI) for a legal case or an investigation ^[1].

This includes emails, text messages, electronic documents, social media, digital images, and other types of electronic communications. E-discovery is an essential tool in litigation; involved parties can access critical evidence by working with forensic investigators. 
Litigators will review information relevant to the case. In the legal process, e-discovery helps lawyers identify critical evidence that may be used to prove their case. It is also used to protect relevant information from being destroyed or altered. E-discovery has become an important part of investigations in our current digital era.

The Process of E-Discovery 

E-discovery involves several stages and the cooperation of multiple involved parties. The digital forensic team is charged with extracting and collecting evidence from digital devices. The research teams, composed of attorneys and legal assistants, sort the information gathered. They may identify information that is important to resolve the case or information that is confidential and irrelevant. 

Party counsels include the attorneys who ultimately decide the information to be used, guide the assistants, and may request more information from the digital forensic team. The Chief of forensic operations delivers evidence to research teams, maintains non-disclosure, secures privileged information and the processes used to find it, and acts as a liaison between all parties^[1].

The process of e-discovery includes…

1. Identification- both parties may identify the information they feel is relevant to their investigation. During this time the location of devices containing this potential evidence is sought out. 
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 include standard operating procedures forensic teams abide by to maintain the chain of custody. Standardized rules also dictate how digital evidence is collected and the best practices to ensure data is not erased or altered.
   • A timeline view and charts of the files and their metadata will be created. Often digital forensic software can produce these timelines and charts of the evidence gathered. 
     

3. Processing, review, and analysis- Forensics experts will process the evidence obtained from the digital devices, finding any hidden evidence. The legal team will then review it. 

   • Forensic experts will use tools to retrieve data of interest, such as emails, audio, documents, video, and images. Specialized tools may even retrieve deleted documents, compressed files, documents embedded in emails, and archives.

   • Evidence containers are also decrypted, de-duplicated, and produced 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 tasked with turning 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 presented to give a visual presentation of the events. It is made understandable to all audiences.

Why is E-Discovery Important?

Understanding the e-discovery process ensures that data is preserved and all privacy rules are followed 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 allowing lawyers to locate relevant evidence and review it more efficiently and quickly. It is increasingly used to settle disputes outside of court, which can help reduce the burden on the legal system.

What was once a manual process has now been caught up with our modern world and moved onto a more modern solution. With the help of forensic analysts, e-discovery has taken on an automated approach accomplished using digital forensic software tools. Artificial intelligence and cloud platforms have assisted with the identification and review stages of the e-discovery process. Legal teams can access more evidence than ever before. 

With the ability to sort through mass amounts of digital data on storage devices such as cellphones, computers, tablets, and more, cases and lawsuits can move quickly. Without e-discovery, legal teams would be in a primitive era where physical documents must be located, sorted, and preserved. As technology continues to improve, digital forensic software updates, making digital data an essential part of investigations.