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Electronic discovery (eDiscovery) is the process in which electronic date is sought, located, and used with the intent of using it as evidence in a criminal or civil trial.  Interestingly, court-ordered or government sanctioned hacking for the purpose of obtaining critical evidence is also a type of e-discovery.  One of the aspects of eDiscovery that make it suitable for investigation is the ease in which electronic files can be searched.  In contrast paper files must be searched manually and can be extremely cumbersome and require a lot of manpower.  As we discussed in class, electronic data lends itself to investigation because it is difficult to completely destroy electronic data.  Even after deleting a document, the bits of that document will remain on that computer unless overridden with another file or rearranged with a software system.  Again, contrast with paper documents that can simply be thrown in the trash and never be seen again.

Data of all types can count as discoverable evidence.    This can include things such as text, images, calendar files, databases, spreadsheets, audio files, animation, web sites and computer programs.  Email is an especially important source of electronic discovery.  Email is exchanged constantly throughout the day in the work place.  From my experience this summer, it is evident that attorneys will do anything they can to make things more convenient in there day to day lives.  This means that very little attorneys actually leave their office to discuss something with another attorney.  Instead, they communicate through email so they do not have to leave the comfort of their own desk.  This means that almost all office intercommunication can now be traced.  Further, people are often not as formal in an email as they are on an official piece of paper like a memo.  This means they are more likely to divulge more information then they naturally should or say something flippantly negative about an employee which could later become crucial evidence in an employee discrimination case.

Another convenient aspect of eDiscovery is that final drafts are not the only information available for discovery.  Both Microsoft Word and WordPerfect have features that allow previous drafts of word processing documents to be discovered and viewed.  Further, Metadata or “imbedded data” is often contained in electronic files that allow you to view the author, persons who viewed the document, and changes made to the document.  Another reason why eDiscovery is so convenient is that once electronic information is discovered, it can be searched by word, phrase or date.

Another aspect of eDiscovery is the advent of cyberforensics.  Cyberforensics is a specialized form of eDiscovery in which the investigation focuses on the hard drive of a specific computer.  After physically isolating the computer, investigators will then make a digital copy of the hard drive.  The original computer is then locked away at a security facility.  From then on, all the investigation will be done on the digital copy the investigators made from the original hard drive.

All in all, eDiscovery continues to grow to be an integral part of the way attorneys discover valuable information.  It will continue to be used because it is not only convenient but opens up vast amounts of information available for discovery.




-James Barbiere